Macmartin v Bunnings Group Ltd
[2025] FedCFamC2G 832
•4 June 2025
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA
(DIVISION 2)
Macmartin v Bunnings Group Ltd [2025] FedCFamC2G 832
File number: MLG 1157 of 2023 Judgment of: JUDGE CHAMPION Date of judgment: 4 June 2025 Catchwords: PRACTICE AND PROCEDURE – Jurisdiction – Whether the Applicant had standing to seek a declaration of a contravention of the whistleblowers protections in Part 9.4AAA of the Corporations Act 2001 – Whether the court has original jurisdiction under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 to decide claims under the whistleblower protections of Part 9.4AAA of the Corporations Act– Alternatively, whether the court has jurisdiction as to the whistleblower protection claims under s. 134 of the FCFCOA Act because those matters are associated with matters in which the jurisdiction of the court is invoked – Held the applicant did not have standing to bring an application for a declaration – Held that the court did not have original jurisdiction as to the whistleblower protection claims – Held because the court did not have original jurisdiction the court did not have jurisdiction to grant a declaration under s. 141 of the FCFCOA Act – Held that the court had associated jurisdiction to grant other remedies as to the whistleblower protection claims Legislation: Acts Interpretation Act 1901 (Cth) s. 15C
Corporations Act 2001 (Cth) ss. 58AA, 1317AC, 1317D, 1317AE, 1317J, 1337A, 1337B, 1337C, 1337E
Fair Work Act 2009 (Cth) cc. 342, 545, 566
Federal Circuit and Family Court of Australia Act 2021 (Cth) ss. 131, 134, 141
Federal Court of Australia Act 1976 (Cth) ss. 21, 32
Judiciary Act 1903 (Cth) s. 39B
Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 r. 18.03
Cases cited: Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577
Harris v Caladine (1991) 172 CLR 84
In the matter of Douglas Webber Events Pty Ltd (ACN 160 966 914) (2014) 291 FLR 173; [2014] NSWSC 1544
Macteldir v Dimovski (2005) 226 ALR 774; [2005] FCA 1528
Mount v Dover Castle Metals Pty Ltd. [2025] FCA 101
Ogawa v Federal Magistrate Phipps (2006) 151 FCR 311; [2006] FCA 361
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
Re Wakim; Ex parte McNally (1999) 198 CLR 511
Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19
Leeming J, Authority to Decide, The Law of Jurisdiction in Australia (Federation Press, 2nd edition, 2020)
Division: Division 2 General Federal Law Number of paragraphs: 65 Date of hearing: 28 April 2025 Place: Melbourne Counsel for the Applicant: Mr Tracey KC and Ms Driscoll Solicitor for the Applicant: Holdstock Law Counsel for the Respondent: Mr Garozzo Solicitor for the Respondent: MST Lawyers ORDERS
MLG 1157 of 2023 FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (DIVISION 2)
BETWEEN: JASON MACMARTIN
Applicant
AND: BUNNINGS GROUP LTD (ACN 008 672 179)
Respondent
ORDER MADE BY:
JUDGE CHAMPION
DATE OF ORDER:
4 JUNE 2025
THE COURT ORDERS THAT:
1.That the separate questions for decision under r. 18.03 of the Federal Circuit and Family Court of Australia (Division 2)(General Federal Law) Rules 2021 are answered as follows:
(1)Question: Does the Applicant have standing to bring a proceeding for a declaration that the Respondent has contravened s. 1317AC(1) of the Corporations Act 2001?
Answer: No
(2)Question: If separate question 3 is answered in the affirmative, does this court have the power to make a declaration of contravention of s. 1317AC(1) of the Corporations Act under s. 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)?
Answer: Does not arise because question 3 is answered no.
(3)Question: Does this court have jurisdiction to decide claims whether the Respondent or employees have engaged in detrimental conduct so as to enliven the power in s. 1317AD(1) to make orders for compensation or make orders for other remedies under s. 1317AE(1) of the Corporations Act in its original jurisdiction?
Answer: No
(4)Question: Does this court have jurisdiction to decide claims whether the Respondent or its employees have engaged in detrimental conduct so as to enliven the power in s. 1317AD(1) or s. 1317AD(2A) to make orders for compensation or other remedies under s. 1317AE(1) of the Corporations Act under s. 134 of the FCFCOA Act in its associated jurisdiction?
Answer: Yes
2.The matter is listed for directions on 2 July 2025 at 9:30 am.
3.Costs are reserved.
AND THE COURT NOTES THAT:
A.The parties are requested to notify the court as to a joint estimate (or different estimates) as to the duration of the trial on or before 4:00 pm on 25 June 2025.
Note: The form of the order is subject to the entry in the Court’s records.
Note: The Court may vary or set aside a judgment or order to remedy minor typographical or grammatical errors (r 17.05(2)(g) Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth)), or to record a variation to the order pursuant to r 17.05 Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021 (Cth).
REASONS FOR JUDGMENT
JUDGE CHAMPION:
INTRODUCTION
Mr Jason Macmartin (the Applicant) was an employee of Bunnings Group Pty Ltd (the Respondent) between 2004 and 2023. On 20 April 2023 Bunnings dismissed him from his employment on stated grounds of “serious misconduct”. Mr Macmartin alleges that Bunnings’ dismissal of him contravened provisions of Part 3.1 of the Fair Work Act 2009 (Cth) (the FW Act)(the general protections provisions). Mr Macmartin also alleges that Bunnings contravened Part 9.4AAA of the Corporations Act 2001 (Cth) (the whistleblower protections) and breached his contract of employment.
SEPARATE QUESTIONS
I had a preliminary hearing as to whether I have jurisdiction — original or associated — as to Mr Macmartin’s claims under Part 9.4AAA of the Corporations Act. Before hearing, I asked four “separate questions” under r. 18.03 of the Federal Circuit and Family Court of Australia (Division 2) (General Federal Law) Rules 2021. By consent, the parties agreed (after the hearing) to certain amendments to the separate questions.
Under orders I also made at hearing, Mr Macmartin served a proposed Further Amended Statement of Claim dated 12 May 2025 (FASOC) which set out the material facts as to the whistleblower protections claims he wishes to advance at trial.
SUMMARY
In summary, this court does not have original jurisdiction under s. 131 of the Federal Circuit and Family Court of Australia Act 2021 (Cth) (FCFCOA Act) as to Mr Macmartin’s whistleblower claims under Part 9.4AAA of the Corporations Act. As the court does not have original jurisdiction, it does not have jurisdiction to make a declaration under s. 141 of the FCFCOA Act as to those whistleblower claims. This court, however, has jurisdiction under s. 134 of the FCFCOA Act because the whistleblower claims under Part 9.4AAA are associated with the FW Act claims. As a result, the court may make orders for compensation (or other orders) under s. 1317AE of the Corporations Act as to those claims.
My reasons follow.
The questions
The questions (amended as agreed) and my answers to them are as follows:
(1)Question: Does the Applicant have standing to bring a proceeding for a declaration that the Respondent has contravened s. 1317AC(1) of the Corporations Act 2001?
Answer: No
(2)Question: If separate question 3 is answered in the affirmative, does this court have the power to make a declaration of contravention of s. 1317AC(1) of the Corporations Act under s. 141 of the Federal Circuit and Family Court of Australia Act 2021 (Cth)?
Answer: Does not arise because question 3 is answered no.
(3)Question: Does this court have jurisdiction to decide claims whether the Respondent or employees have engaged in detrimental conduct so as to enliven the power in s. 1317AD(1) to make orders for compensation or make orders for other remedies under s. 1317AE(1) of the Corporations Act under the Corporations Act in its original jurisdiction?
Answer: No
(4)Question: Does this court have jurisdiction to decide claims whether the Respondent or its employees have engaged in detrimental conduct so as to enliven the power in s. 1317AD(1) or s. 1317AD(2A) to make orders for compensation or other remedies under s. 1317AE(1) of the Corporations Act under s. 134 of the FCFCOA Act in its associated jurisdiction?
Answer: Yes
NECESSARY BACKGROUND
The matters which the court will need to decide at trial include the following.
Mr Macmartin alleges that in contravention of s. 342 of the FW Act, Bunnings took adverse action against him (among other matters) by dismissing him from his employment. He seeks compensation under s. 545 of the FW Act (among other remedies) (FASOC, Prayer for Relief, D).
Under s. 566 of the FW Act this court has jurisdiction “in relation to any civil matter arising” under the FW Act. There is no jurisdictional issue as to Mr Macmartin’s FW Act claims.
Mr Macmartin also alleges that by his dismissal (and the way in which it was effected) Bunnings breached his employment contract (FASOC, 62B–62D). There is no contest that the court has jurisdiction to deal with the Applicant’s contract claims because those matters arise out of a common substratum of facts and form part of a single justiciable controversy together with his FW Act claims (see, i.e., Re Wakim; Ex parte McNally (1999) 198 CLR 511, [140]).
These reasons concern a different issue as to the court’s jurisdiction as to Mr Macmartin’s claims that Bunnings has contravened certain whistleblower protections set out in Part 9.4AAA of the Corporations Act (FASOC, 59B–62AE).
THE PARTIES’ POSITIONS
Mr Macmartin submits that this court has “original jurisdiction” under s. 131 of the FCFCOA Act as to his whistleblower protections claims under Part 9.4AAA of the Corporations Act. Alternatively, Mr Macmartin submits that this court has “associated jurisdiction” under s. 134 of the FCFCOA Act as to his whistleblower protection claims.
Bunnings disputes that the court has original jurisdiction. Bunnings submits, however, that the court has associated jurisdiction as to the whistleblower protection claims
The significance of the parties’ dispute as to whether the court has original — or only associated — jurisdiction as to the whistleblower claims is to be found in s. 141(1) of the FCFCOA Act which limits the court’s jurisdiction to make declarations of right as follows: “in relation to a matter in which it has original jurisdiction”. That is, if the court has jurisdiction as to the whistleblower’s claims only in its associated jurisdiction it cannot make a declaration of right but can grant other remedies in its associated jurisdiction.
The parties’ agreement that the court has jurisdiction as to the whistleblower claims notwithstanding, the first duty of the court is to determine whether it has jurisdiction (QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419 at [27] and [92]). Further, the parties cannot consensually invest the court with jurisdiction or power it does not possess (Harris v Caladine (1991) 172 CLR 84, 133).
QUESTION 1: DOES MR MACMARTIN HAVE STANDING TO BRING AN APPLICATION FOR A DECLARATION?
Question 1 is whether Mr Macmartin has standing to bring a proceeding for a declaration that Bunnings has contravened s. 1317AC(1) of the Corporations Act.
A full exploration of this question requires a consideration of other issues of the court’s jurisdiction to which I will return below.
Suffice to say that I note that s. 1317E identifies s.1317AC(1) as a civil penalty provision. Section 1317J(1) reserves to ASIC as the statutory regulator the right to apply for a declaration of contravention of a civil penalty provision under s. 1317J. Section 1317J(4) is as follows:
1317J Who may apply for a declaration or order
Application by ASIC
(1)ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order.
…
No one else may apply
(4)No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section.
Mr Macmartin does not have standing under s. 1317J to seek a declaration as to a contravention of s. 1317AC(1) because that section reserves standing (solely) to ASIC as the statutory regulator. It also follows from what I have set out below, that he does not have standing under any other statutory provision in the FCFCOA Act to seek a declaration as to a contravention of s. 1317AC(1).
Question 1 will be answered “no”.
QUESTION 2: DOES THIS COURT HAVE POWER TO GRANT A DECLARATION OF CONTRAVENTION OF S. 1317AC(1)?
Where Question 1 was directed to Mr Macmartin’s standing, Question 2 is directed towards the jurisdiction of the court to make a declaration as of right as to a contravention of Part 9.4AAA. It is closely related to Question 3.
Section 141(1) of the FCFCOA Act is as follows:
141 Declarations of right
(1) The Federal Circuit and Family Court of Australia (Division 2) may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.
Under s. 141(1) this court may only make a declaration of right “in relation to a matter in which it has original jurisdiction”.
It follows that if this court has original jurisdiction under the Corporations Act as to Mr Macmartin’s whistleblower claims s. 141 of the FCFCOA Act may serve as an independent source of power, independent from s. 1317J, to make a declaration of contravention of s. 1317AC(1). In Mount v Dover Castle Metals Pty Ltd. [2025] FCA 101 (at [165]–[168]) Katzmann J held s. 1317J was not the “exclusive source of power available to the court to make a declaration of contravention of a civil penalty provision” and the Federal Court could rely on s. 21 of the Federal Court of Australia Act 1976 (Cth) as its source of power to make a declaration of a contravention of s. 1317AC(1).
For the reasons set out below, this court is in a different position from the Federal Court because it is not vested with jurisdiction under the Corporations Act.
Does this court have original jurisdiction as to the Part 9.4AAA claim?
The FCFCOA Act
Chapter 4, Part 2 of the FCFCOA Act is titled: “Jurisdiction”.
Division 1 is titled “original jurisdiction”. Within Division 1, s. 131(1) is as follows:
131 Original jurisdiction – general
(1) The Federal Circuit and Family Court of Australia (Division 2) has such original jurisdiction as is vested in it:
(a) by laws made by the Parliament:
(i) by express provision; or
(ii) by the application of section 15C of the Acts Interpretation Act 1901 to a provision that, whether expressly or by implication, authorises a civil proceeding to be instituted in the Federal Circuit and Family Court of Australia (Division 2) in relation to a matter;
…
In broad terms, under s. 131(1)(a) the jurisdiction of this court depends on an Act of the Commonwealth parliament — by substantive legislation — vesting jurisdiction in it.
Section 566 of the FW Act furnishes an example of the vesting of jurisdiction in this Court “by express provision” in the following terms:
Jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in relation to any civil matter arising under this Act.
The Corporations Act does not vest jurisdiction in this court “by express provision” by a provision of the kind set out in s. 566 of the FW Act.
As to jurisdiction being vested “by the application of section 15C of the Acts Interpretation Act 1901” (AI Act) under s. 131(1)(a)(ii), s. 15C(a) of the AI Act is as follows:
Where a provision of an Act, whether expressly or by implication, authorises a civil or criminal proceeding to be instituted in a particular court in relation to a matter:
(a)that provision shall be deemed to vest that court with jurisdiction in that matter;
Section 15C(a) as it is picked up by s. 131(1)(a)(ii) is still premised on the vesting of jurisdiction by another substantive act “whether expressly or by implication”. Section 15C(a) still demands the identification of provisions in the Corporations Act which vest jurisdiction in this court “expressly or by implication”.
The Corporations Act
I turn then to consider whether provisions of the Corporations Act expressly or by implication vest jurisdiction in this Court as to a Part 9.4AAA whistleblowers claim.
As a starting point, Judge Manousaridis noted in Donnola v Silverleaf Constructions Co Pty Ltd (No 2) [2024] FedCFamC2G 577 at [6] that “the Corporations Act does not confer any jurisdiction on this Court in relation to any matter arising under the Corporations Act”.
Section 58AA is definitional and does not itself confer jurisdiction
Section 58AA(2) of the Corporations Act is as follows:
Except where there is a clear expression of a contrary intention (for example, by use of the expression “the Court”), proceedings in relation to a matter under this Act may, subject to Part 9.6A, be brought in any court.
[Emphasis added]
Section 58AA(1) distinguishes between a capital “C” court and a small “C” court as follows:
Subject to subsection (2), in this Act:
court means any court.
Court means any of the following courts:
(a) the Federal Court;
(b) the Supreme Court of a State or Territory;
(c) the Federal Circuit and Family Court of Australia (Division 1);
(d) a court to which section 41 of the Family Law Act 1975 applies because of a Proclamation made under subsection 41(2) of that Act.
This court is a court under s. 71 of the Constitution. This court is not a capital “C” court under s. 58AA(1) of the Corporations Act.
Section 58AA is definitional rather than jurisdictional. As Brereton J said in In the matter of Douglas Webber Events Pty Ltd (ACN 160 966 914) (2014) 291 FLR 173; [2014] NSWSC 1544 at [35] that “s 58AA, in its current form, does not of itself confer jurisdiction.” This court would only be vested with jurisdiction if s. 58AA read in conjunction with other provisions of the Corporations Act vested this court with jurisdiction.
Part 9.6A does not confer jurisdiction on this court
As emphasised above, s. 58AA(2) includes the words “subject to Part 9.6A”. Part 9.6A is titled “Jurisdiction and procedure of courts”. Section 1337A(1)(a) in Division 1 of Part 9.6A sets out that:
(1) This Division deals with:
(a) the jurisdiction of courts in respect of civil matters arising under the Corporations legislation;
Part 9.6A does not contain any provision which expressly confers jurisdiction on this court. Section 1337B(1) of the Corporations Act expressly confers jurisdiction on the Federal Court as to civil matters arising under the corporations legislation. Section 1337C(1) expressly confers jurisdiction on the Federal Circuit and Family Court of Australia (Division 1). This court is conspicuously absent from those federal courts upon which Part 9.6A expressly confers jurisdiction. Section 1337E(1) expressly confers jurisdiction on each “State or Territory court that is a lower court”.
Part 9.6A also does not “by implication” confer jurisdiction on this court. While it is accurate, as Mr Macmartin submitted, that Part 9.6A does not “expressly exclude the jurisdiction” of this court, the absence of a provision expressly excluding jurisdiction is not the same as, and not to be equated with, the conferring of jurisdiction by implication on this court.
Part 9.4AAA is concerned with powers to make certain orders not with the conferral of jurisdiction
The provisions of Part 9.4AAA do not assist Mr Macmartin’s arguments as to original jurisdiction. Part 9.6A is about jurisdiction. Part 9.4AAA concerns the distinct issue of the powers of a court once it is vested with jurisdiction. It is accurate that Part 9.4AAA, for example, in s. 1317AE(1)(a)–(g), sets out the range of orders a court (a small “c” court, and doubtless this court is a small “c” court) has the power to make, if satisfied of detrimental conduct under s. 1317AD, but it does not answer the anterior question of whether the “court” is vested with jurisdiction.
The question of jurisdiction is an anterior question to the question of a power to make orders. Only once the question of whether the court has jurisdiction is affirmatively answered, is it necessary to ask what orders a court may make in the exercise of the vested jurisdiction.
For the reasons set out above – because Part. 9.6A of the Corporations Act does not vest it with jurisdiction – this court does not have original jurisdiction as to the whistleblower protections set out in Part 9.4AAA of the Corporations Act
In conclusion, unlike the Federal Court under s. 1337B, this court does not have original jurisdiction as to a matter arising under Part 9.4AAA of the Corporations Act. As its jurisdiction to make a declaration under s. 141 of the FCFCOA Act is premised on it being vested with original jurisdiction (associated jurisdiction being insufficient to ground jurisdiction to make a declaration as of right) the answer to Question 2 is “no”.
QUESTION 3: DOES THIS COURT HAVE ORIGINAL JURISDICTION TO MAKE ORDERS FOR COMPENSATION OR OTHER ORDERS UNDER S. 1317AE(1)?
Questions 3 and 4 were framed to distinguish between this court’s original jurisdiction and its associated jurisdiction.
For the reasons set out above, the court does not have original jurisdiction to make compensation orders under s. 1317AE(1) if a person engages in detrimental conduct under s. 1317AD.
The answer to Question 3 is “No”.
QUESTION 4: DOES THIS COURT HAVE ASSOCIATED JURISDICTION TO MAKE ORDERS FOR COMPENSATION OR OTHER ORDERS UNDER S. 1317AE(1)?
Jurisdiction as to associated matters
Chapter 4, Part 2, Division 2 of the FCFCOA Act is tilted “Associated Matters”. Within Division 2, s. 134 is as follows:
To the extent that the Constitution permits, jurisdiction is conferred on the Federal Circuit and Family Court of Australia (Division 2) in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Federal Circuit and Family Court of Australia (Division 2) is invoked.
I have already noted that it was common ground that Mr Macmartin’s contract claims are within the limits of the single justiciable controversy together with his FW Act claims because they arise out of a common substratum of facts.
Section 134 raises different issues. In Macteldir v Dimovski (2005) 226 ALR 774; [2005] FCA 1528 at [67] Allsop J (as he then was) said of s. 32 of the Federal Court of Australia Act (which is a materially similar terms to s. 134 of the FCFCOA Act):
…The only High Court authority is to the effect (conformably with the words of s 32) that s 32 of the FCA Act deals with separate and distinct matters. It is not what is sometimes called “accrued” jurisdiction. This latter expression may be better expressed as the limit of the matter or controversy. Associated jurisdiction under s 32 is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been, conferred. The word “associated” is not a synonym for “accrued”. In Philip Morris Inc v Adam P Brown Male Fashions (1981) 148 CLR 457 at 476; 33 ALR 465 at 475 (Philip Morris), Barwick CJ indicated that “associated” embraced matters which may be disparate from each other, that is, not within the “accrued” jurisdiction of the already conferred federal matter….
[Emphasis added]
The Federal Court has a general “arising under” jurisdiction conferred by s. 39B(1A)(c) of the Judiciary Act 1903 (Cth). Justice Leeming writing extra-judicially in Authority to Decide, The Law of Jurisdiction in Australia (Federation Press, 2nd edition, 2020) at [4.8] observes it is a rare case where “s. 32 could have work to do.”
Slightly different issues arise in this court than in the Federal Court.
Part 9.6A does not oust s. 134 of the FCFCOA Act
In Ogawa v Federal Magistrate Phipps (2006) 151 FCR 311; [2006] FCA 361 Finkelstein J at [12] held:
Parliament has laid down that the Federal Magistrates Court is precluded from exercising jurisdiction in a matter arising under any part of the Trade Practices Act apart from a matter under Pt V. This is so whether or not an action in respect of that mater has begun in the Federal Court. Moreover, it would subvert Parliament’s intention if one were to accept the University’s contention that s 18 of the Federal Magistrates Court Act (the “associated jurisdiction” provision) has the effect of giving to the Federal Magistrates Court jurisdiction over a federal claim that is within the exclusive jurisdiction of the Federal Court. In my view whatever claims may be picked up as part of the Federal Magistrates Court’s associated jurisdiction they do not include claims that are within the exclusive jurisdiction of another federal court.
[Emphasis added]
In Donnola, Judge Manousaridis said at [13]:
Section 134 of the FCFC Act is premised on some other court or courts having jurisdiction over a matter in relation to which this Court does not have jurisdiction, which necessarily implies that, but for s 134 of the FCFC Act, the jurisdiction of the other court or courts over such matter would be exclusive of the jurisdiction of this Court.
In Donnola, Judge Manousaridis acknowledged that it was relevant to construe provisions that confer jurisdiction on a court in relation to a matter over which this court does not have jurisdiction “to determine whether such provisions limit the operation of s. 134” (at [15]). If jurisdiction was found to have been withdrawn or limited that implication must arise “clearly and unmistakably” (Donnola, [15] citing Shergold v Tanner (2002) 209 CLR 126; [2002] HCA 19, [34]).
In my discussion above, I accepted Mr Macmartin’s submission that nothing in Part 9.6A of the Corporations Act expressly (or by clear or unmistakable implication) excludes the jurisdiction of this court. I observed that the fact that no provision expressly excluded the jurisdiction of this court was not the same as a provision by implication conferring jurisdiction on this court, which underpinned my conclusion that this court does not have original jurisdiction under s. 131 of the FCFCOA Act as to the whistleblower protection claims.
In the absence, however, of a provision of the Corporations Act expressly or by clear and unmistakeable implication excluding the jurisdiction of the court there is no reason to interpret the relevant provisions of Part 9.6A as mandating an interpretation that the associated jurisdiction of this court under s. 134 of the FCFCOA Act is to be read down so as to preclude this court having associated jurisdiction as to a Part 9.4AAA claim. As Allsop J said in Macteldir the “associated jurisdiction under [s. 134] is the conferral of jurisdiction in another, different, federal matter, in respect of which jurisdiction could be, but has not been, conferred”. The “associated” matter may be disparate from the matter in which jurisdiction is regularly invoked.
In Ogawa at [12] Finkelstein J concluded that “Parliament had laid down that the Federal Magistrates Court is precluded from exercising jurisdiction”. There is no preclusionary provision in Part 9.6A of the Corporations Act. To the contrary, rather than Part 9.6A containing a preclusionary provision, s. 1337A(5) of the Corporations Act expressly preserves the jurisdiction of other courts:
1337A Operation of Division
…
(5) Nothing in this Division affects any other jurisdiction of any court.
That is, s. 1337A(5) reserves the field of operation — or leaves unaffected — s. 134 of the FCFCOA Act.
As a result, although Mr Macmartin’s whistleblower protection claims are not within the original jurisdiction of this court, there is no reason to restrict the ambit of s. 134 of the FCFCOA Act. The better view is that this court has jurisdiction as to Mr Macmartin’s whistleblower protection claims in its associated jurisdiction under s. 134 as a claim in a different federal matter where the court’s jurisdiction is regularly invoked as to the FW Act claims.
The answer to Question 4 is “yes”.
NEXT STEPS
In conclusion, Mr Macmartin’s claims under Part 9.4AAA of the Corporations Act are within the associated jurisdiction of the court.
Having answered the separate questions, I propose to list this matter for directions on 2 July 2025.
The purpose of the directions hearing is to regularise any further pleadings issues, discovery issues or other interlocutory issues. I am concerned that this matter was issued in June 2023, 2 years ago. I request the parties consult before the next directions hearing so that, if possible, any outstanding interlocutory matters can be addressed at the next directions hearing. I will make a notation requesting the parties to advise my chambers not later than 4 pm on 25 June 2025 as to a joint estimate (or different estimates) as to the length of the trial so that, if possible, the matter may be relisted for trial at the next directions hearing.
I certify that the preceding sixty-five (65) numbered paragraphs are a true copy of the Reasons for Judgment of Judge Champion. Associate:
Dated: 4 June 2025
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