Panesar v Attorney-General (Cth)
[2025] FCA 477
•14 May 2025
EFEDERAL COURT OF AUSTRALIA
Panesar v Attorney-General (Cth) [2025] FCA 477
File number: WAD 116 of 2025 Judgment of: FEUTRILL J Date of judgment: 14 May 2025 Catchwords: CONSTITUTIONAL LAW – s 76(i) and s 76(ii) of the Constitution – ‘matter’ arising under the Constitution or involving its interpretation – notice under s 78B of the Judiciary Act 1903 (Cth)
PRACTICE AND PROCEDURE – urgent application for declaratory relief – original jurisdiction of the Federal Court under s 39B(1A)(c) of the Judiciary Act 1903 (Cth) – ‘matter’ arising under any laws made by Parliament – immediate legal right, duty or liability in administration of the law – justiciable controversy – practical utility of declaratory relief – relevance to admissibility of evidence in criminal proceeding in foreign country
STATUTORY INTERPRETATION – incorporation of treaty into Australian municipal law – Mutual Assistance in Criminal Matters Act 1987 (Cth) subject to limitations, conditions, exceptions or qualifications found in treaty – adoption of rules of customary international law into Australian common law – sovereignty and equality of States – act of state doctrine – interpretation of statutes considered with common law principles – abrogation of common law principles – whether duty, liability or obligation imposed on foreign States under Mutual Assistance Act
Legislation: Constitution ss 76(i), 76(ii), 77(i), 109; Ch III
Extradition Act 1988 (Cth) s 11
Federal Court of Australia Act 1976 (Cth) s 19
Foreign States Immunities Act 1985 (Cth) ss 9, 10
International Arbitration Act 1974 (Cth) s 16
Judiciary Act 1903 (Cth) ss 39B, 78B
Mutual Assistance in Criminal Matters Act 1987 (Cth) ss 5, 6, 7. 8, 9, 11, 12, 13-13AB, 14, 15, 15CA. 15CC. 38C, 26 38D, 38E, 38F, 38J, 38L, 38ZA, 43B, 43C; Divs 2, 3; Ptt II, III, IIIA – IIIB, IV, IVA, V, VI, VIII, VIIA
Mutual Assistance in Criminal Matters Amendment Act 1996 (Cth)
Federal Court Rules 2011 (Cth) r 8.11
Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth) reg 3
Crime (International Co-operation) Act 2003 (UK) s 9
Proceeds of Crime Act 2002 (UK) s 329
Cases cited: Ainsworth v Criminal Justice Commission [1992] HCA 10; 175 CLR 564
Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; 160 CLR 315
Attorney-General (UK) v Heinemann Publishers Australia Pty Ltd [No 2] [1988] HCA 25; 165 CLR 30
Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292
Australian Education Union v Lee [2010] FCAFC 153; 189 FCR 259
AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512
Barton v Commonwealth [1974] HCA 20; 131 CLR 477
Bollag v Attorney-General (Cth) (1997) 79 FCR 198
Carlin v Hamersley Iron Pty Ltd [2003] WASCA 270
CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216
Commonwealth Minister for Justice v Adamas [2013] HCA 59; 253 CLR 43
Cook v Sprigg [1899] AC 572
Croome v Tasmania [1997] HCA 5; 191 CLR 119
Crouch v Commissioner for Railways (Q) [1985] HCA 69; 159 CLR 22
Daniels v Deputy Commissioner of Taxation [2007] SASC 431
Fencott v Muller [1983] HCA 12; 152 CLR 570
Glennan v Commissioner of Taxation (Cth) [2003] HCA 31; 198 ALR 250
Green v Jones [1979] 2 NSWLR 812; 39 FLR 428
Habib v Commonwealth [2010] FCAFC 12; 183 FCR 62
Hempel v Attorney-General (Cth) (1987) 77 ALR 641
Jacobi v United States of America [1996] FCA 962
Kingdom of Spain v Infrastructure Services Luxembourg sàrl [2023] HCA 11; 275 CLR 292
Lim v Minister for Immigration, Local Government and Ethnic Affairs [1992] HCA 64; 176 CLR 1
Mellifont v Attorney-General (Qld) [1991] HCA 53; 173 CLR 289
Minister for Home Affairs (Cth) v Zentai [2012] HCA 28; 246 CLR 213
Minister of State for Immigration and Ethnic Affairs v Teoh [1995] HCA 20; 183 CLR 273
Mokbel v Attorney-General (Cth) [2007] FCA 1536; 162 FCR 278
Narain v Parnell (1986) 9 FCR 479
National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627
NBGM v Minister for Immigration and Multicultural Affairs [2006] HCA 54; 231 CLR 52
Nikolic v MGICA Ltd [1999] FCA 849
Nulyarimma v Thompson [1999] FCA 1192; 96 FCR 153
Oates v Attorney-General (Cth) [2001] FCA 84; 181 ALR 559
Oates v Attorney-General (Cth) [2003] HCA 21; 214 CLR 496
Oates v Attorney-General [2002] FCAFC 80; [2002] FCA 347; 118 FCR 544
Oetjen v Central Leather Company (1918) 246 US 297
Palmer v Ayres [2017] HCA 5; 259 CLR 478
Petrotimor Companhia de Petroleos SARL v Commonwealth [2003] FCAFC 3; 126 FCR 354
Polites v Commonwealth [1945] HCA 3; 70 CLR 60
Povey v Qantas Airways Ltd [2005] HCA 33; 223 CLR 198
R v Gill [2017] EWCA Crim 1612
Rana v Google Inc [2017] FCAFC 156; 254 FCR 1
Re Ditfort; Ex parte Deputy Commissioner of Taxation (NSW) (1988) 19 FCR 347
Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73
Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257
Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372
Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159; 163 FCR 111
South Australia v Commonwealth [1962] HCA 10; 108 CLR 130
State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549
Todhunter v United States of America (1995) 57 FCR 70
Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591
Underhill v Harnandez (1897) 168 US 250
Unions NSW v New South Wales (“Unions NSW [No 3]”) [2023] HCA 4; 277 CLR 627
Division: General Division Registry: Western Australia National Practice Area: Administrative and Constitutional Law and Human Rights Number of paragraphs: 134 Date of hearing: 24 April 2025 and 1 May 2025 Counsel for the Applicant: Mr AP Young KC with Mr T Smyth Solicitor for the Applicant: K & L Gates Counsel for the Respondent: Mr EM Heenan SC with Mr SR Pack Solicitor for the Respondent: Australian Government Solicitor ORDERS
WAD 116 of 2025 BETWEEN: SANJAY SUNDEEP SINGH PANESAR
Applicant
AND: ATTORNEY-GENERAL OF THE COMMONWEALTH OF AUSTRALIA
Respondent
ORDER MADE BY:
FEUTRILL J
DATE OF ORDER:
14 MAY 2025
THE COURT ORDERS THAT:
1.The originating application be dismissed.
2.Costs be reserved.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
FEUTRILL J:
Introduction
In this proceeding the applicant seeks declarations against the respondent (Attorney-General) concerning the authorised and lawful use of materials the Attorney-General’s Department sent to the Home Office of the United Kingdom of Great Britain and Northern Ireland as a result of a request for assistance the Crown Prosecution Service of England and Wales made to the Attorney-General under the Mutual Assistance in Criminal Matters Act 1987 (Cth). The applicant is the accused in a trial that has commenced in the Southwark Crown Court in the United Kingdom. In that trial the applicant objects to the admissibility of the relevant materials on the ground that the CPS has used and intends using the material in a manner that is not permitted under the municipal law of the United Kingdom. He also contends that under Australian municipal law the United Kingdom authorities are not permitted to use the materials for a purpose that was not stated in the request for assistance without the prior consent of Australia. He contends that the CPS’s investigation and prosecution of him was outside the scope of the request and Australia’s prior consent was not obtained to use the materials for the purpose of that investigation and prosecution. He contends that the declarations as to the effect of Australian municipal law sought in the proceeding are relevant and will be of practical utility and of assistance to the Crown Court in the resolution of his objection to the admissibility of the material in that court.
The originating application came before me as an urgent duty matter because the trial has commenced and the presiding judge has deferred ruling on the admissibility of the material pending a decision in this Court. At the time of the initial hearing of the application the trial was evidently scheduled to conclude during May 2025, perhaps as early as 9 May 2025. In those circumstances, I decided that the application should be heard on an expedited basis and to attempt delivering a judgment before the conclusion of the evidence in the trial. That object has proved challenging because the issues raised in the proceeding are not altogether straightforward and have been complicated by an objection to the jurisdiction of the Court and a possible constitutional question requiring notices to be given to the Attorneys-General under s 78B of the Judiciary Act 1903 (Cth). The Court has since been informed that the jury has been discharged, but the relief claimed remains pressing.
As to jurisdiction, the Attorney-General contends that the Court does not have jurisdiction because the declarations the applicant seeks do not concern a ‘matter’ within the meaning of that word in s 39B(1A)(c) of the Judiciary Act. The Attorney-General also contends that the jurisdictional question involves interpretation of the Constitution because s 39B(1A)(c) uses the same expression as that which is used in s 76(ii) of the Constitution. Therefore, resolving the jurisdictional question requires the Constitution to be interpreted.
The substantive issue is principally a matter of statutory interpretation and construction of the communications between the CPS and Home Office, on the one hand, and the Department, on the other, during 2010 and 2011. The main question of statutory interpretation concerns the extent to which the Agreement between the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of Australia concerning the Investigation, Restraint and Confiscation of the Proceeds and Instruments of Crime, done at Canberra on 6 February 1997 has been incorporated into Australian municipal law. In particular, the extent to which Art 7(3) of the Agreement has the force of law in Australia such that the United Kingdom is subject to an obligation not to use evidence or information obtained as a result of a request for purposes other than those stated in the request without the prior consent of Australia.
The issue of construction of the communications between the authorities of Australia and the United Kingdom centres on whether the purpose of the requests extended to the applicant as a person who was not specifically identified in the requests for assistance. The CPS asserts that the purpose extends to the applicant because the letters of request contained a proviso to the effect that, unless the Department indicated otherwise, the evidence obtained pursuant to the request may be used in any criminal prosecution arising from the investigation whether relating to the named subjects or ‘any other person who may become a subject of [the] investigation [known as Operation Centrum]’. In the communications from the Department, consistently with Art 7(3) of the Agreement, it was noted that ‘the material should not be used for any purpose other than that stated in the request without prior consultation with this Department.’ The question for construction is therefore whether the proviso formed part of the stated purpose of the request and, if so, whether the notation in the Department letter was an indication ‘to the contrary’ thereby, in effect, neutralising the proviso.
For the reasons that follow, there is no constitutional question requiring notices to be given under s 78B of the Judiciary Act, the Court has jurisdiction under s 39B(1A)(c) of that Act, but the Agreement and Art 7(3) is not incorporated into Australian municipal law. Further, the Mutual Assistance Act does not impose any obligation on the United Kingdom concerning the use to which that sovereign State may put material provided by Australia under the Act in the territory of that State. Any obligation imposed on the United Kingdom restricting the use to which it may put material provided by Australia pursuant to a request under the Act, or the Agreement, is a matter of international law and the municipal law of the United Kingdom and not the municipal law of Australia. Nor does the Act impose any direct or indirect obligations on the United Kingdom through the provisions of the Act.
It is unnecessary to construe the letters of request the Department received from the CPS. Further, it would be inappropriate to do so, even for the sake of completeness, in the circumstances of this case as it would require the Court to sit in judgment upon the lawfulness of acts of the United Kingdom carried out in the territory of that sovereign State.
It follows that the originating application should be dismissed.
Legislative framework
The objects of the Mutual Assistance Act are to regulate the provision of assistance by Australian authorities in response to requests from foreign countries, and to facilitate the obtaining by Australia of international assistance in criminal matters: s 5. The Mutual Assistance Act is not exhaustive and does not prevent the provision or obtaining of assistance by other means: s 6.
The Act applies to all foreign countries, but regulations may provide that the Act applies subject to, relevantly, any mutual assistance treaty between that country and Australia that is referred to in the regulations: s 7. In accordance with s 7, reg 3 of the Mutual Assistance in Criminal Matters (United Kingdom) Regulations 1999 (Cth) (UK Regulations) provides that the Mutual Assistance Act applies to the United Kingdom subject to the Agreement.
A foreign country may make a request for assistance to the Attorney-General in writing and the request must contain certain information. But, a failure to comply with those requirements is not a ground for refusing the request: s 11. Otherwise, there are a number of circumstances in which the Attorney-General shall, must or may refuse a request: s 8. Further, the Attorney-General may determine to provide assistance subject to conditions: s 9.
The remaining provisions of the Act set out various kinds of requests for assistance that Australia may make to a foreign country, or that a foreign country may make to Australia and the manner in which certain powers to obtain evidence and other materials may be exercised in Australia.
Part II contains provisions relating to requests for taking of evidence and production of documents or other articles. Section 12 addresses requests by Australia for the purpose of a proceeding or investigation relating to a criminal matter in Australia. Sections 13 – 13AB deal with requests by a foreign country for taking evidence and production of other documents or articles in Australia for the purpose of a proceeding in relation to a criminal matter in a foreign country. Section 13A deals with requests by a foreign country for provision of material lawfully obtained by an enforcement agency in Australia where the foreign country has commenced an investigation or prosecution in relation to a serious offence.
Part III contains provisions relating to requests for search and seizure. Section 14 addresses requests by Australia for an appropriate authority of a foreign country to exercise compulsive powers for the production of a thing reasonably believed to be relevant to a proceeding or investigation in relation to a serious offence against an Australian law. Section 15 addresses requests by a foreign country for the Attorney-General to arrange for evidential material to be obtained where a foreign country has reasonable grounds to believe that evidential material relating to an investigation or proceeding in a foreign country involving a serious offence is located in Australia. If such a request is made, the Attorney-General may, in his or her discretion, authorise a police officer, in writing, to apply to a Magistrate or eligible Judge for one or more search warrants in respect of the evidential material.
Part VIIA contains provisions that address the exercise of search, seizure and powers of arrest in Australia. These provisions include:
(a)requirements before a search warrant may be issued: s 38C;
(b)contents of the search warrant, including that it must state ‘the purpose for which it is issued’: s 38D(1)(a);
(c)authority and powers granted to a police officer by a search warrant, including as to the use of force: ss 38E, 38F, 38L and s 38J; and
(d)how seized material must be dealt with by the police officer executing a warrant: s 38ZA.
Parts IIIA - IIIB contain provisions addressing assistance in relation to stored communications, use of surveillance devices, data held in computers and telecommunications data. Part IV addresses arrangements for persons to give evidence or assist investigations. Part IVA addresses requests in relation to certain forensic procedures. Part V contains provisions relating to custody, arrest and escape of persons in transit through Australia for the purpose of giving evidence in a proceeding or assisting in an investigation. Part VI addresses requests relating to proceeds of crime. Part VIII contains various miscellaneous provisions including provisions for making regulations and certain offences relating to misuse of materials provided as a result of requests for assistance by Australia and for disclosure of information associated with requests made by a foreign country to Australia.
Relevant facts
On 18 November 2010, David Green QC of the CPS wrote to the Australian Attorney-General’s Department requesting assistance in relation to an investigation named ‘Operation Centrum’. Under a heading ‘Purpose of the Request’, the letter said evidence was sought ‘for use in the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceedings related thereto) [of] the following [17 individuals identified in a table]’. The letter then said that the list contained the ‘main suspects’ and further suspects were listed in ‘Annex A’. The applicant was not identified in the table or Annex A.
Under a heading ‘Summary of the Case’ the letter set out further information regarding the investigation, the suspected offending, and previous related assistance requested by the United Kingdom. Relevantly, it listed 14 companies and explained the role of those companies and that the officers of those companies were suspected to be involved in the offending. Under a heading ‘Assistance Requested’ the letter asked the Department to obtain documents from Westpac Banking Corporation and Technocash Pty Ltd. The letter then contained the following proviso:
Unless you indicate otherwise, any evidence obtained pursuant to this request may be used in any criminal prosecution or other judicial proceedings arising from this investigation, including any restraint or confiscation proceedings, whether relating to the above named subject(s) or to any other person who may become a subject of this investigation.
On 2 December 2010, the Commonwealth Minister for Justice issued two authorisations under s 15 of the Mutual Assistance Act authorising the making of applications for search warrants in respect of each of Westpac and Technocash.
On 9 December 2010, Mr Green QC sent a further letter to the Department. The second letter requested a broader scope of documents be obtained by Australian authorities. The letter contained further information relating to two entities referred to as ‘companies’. One of the entities identified was Anami Law LLP. I infer that, although referred to as a company, that entity is a limited liability partnership. The letter indicated that the applicant and two other individuals were signatories to a bank account in the name of Anami Law.
Under a heading ‘Further Assistance Requested’ the second letter relevantly asked that the two companies be added to the list of companies included in the first letter. The letter contained the same proviso set out at paragraph [18] and also said:
For the avoidance of confusion, I confirm that Requests 1 and 2 of my initial request relate to all of the companies and persons set out in that letter and not just the persons listed as part of Annex A.
On 16 December 2010, AFP officers attended the last known premises for Technocash, but were advised the company had relocated.
On 7 January 2011, the Minister for Justice issued a further authorisation under s 15 of the Mutual Assistance Act authorising the making of applications for additional search warrants in respect of Technocash, in part due to Technocash’s new address and in part due to the second letter of request. The covering memorandum to the Minister noted:
UK authorities have recently obtained bank records that disclose the transmission of money from Technocash to bank accounts in the name of two additional businesses that UK authorities believe are controlled by the main suspect, Avtar Singh Hare, and his associates. The entities, Anami Asset Management Ltd and Anami Law LLP, and a signatory to one of the accounts, [the applicant], have been added to the entities and individuals listed in the revised authorisation for Operation Centrum. As previously advised, the individuals and entities named in the authorisations are the subjects of the UK investigations.
The authorisation identified the records sought as those ‘relevant to the investigation of Avtar Singh Hare and others (known as Operation Centrum)’, and identified the applicant in the list of individuals and entities to whom records might relate.
The AFP obtained a warrant under s 38C of the Mutual Assistance Act on 10 January 2011 and executed it on Technocash on 14 January 2011. On 18 January 2011 an officer of the Department signed a direction under s 38ZA of the Mutual Assistance Act requiring the AFP to provide the seized material from Technocash to the Department. On 23 March 2011 Melanie Lindner of the Department wrote to the Home Office of the United Kingdom enclosing the material seized from Technocash. The letter, relevantly, included the following statement:
Please note that the enclosed material should not be used for any purpose other than that stated in the request without prior consultation with this Department.
On 20 May 2011 the AFP obtained a warrant under s 38C of the Mutual Assistance Act in respect of Westpac and executed it on 27 May 2011. On 14 June 2011 an officer of the Department signed a direction under s 38ZA of the Mutual Assistance Act requiring the AFP to provide the seized material from Westpac to the Department. On 14 June 2011 Ms Lindner wrote to the Home Office enclosing the material seized from Westpac. The letter included the same note as that set out in the preceding paragraph.
Thereafter, Australian authorities took no further formal steps under the Mutual Assistance Act.
On 10 April 2013 the applicant was interviewed under caution by officers of Her Majesty’s Customs and Excise. About seven and half years later, the applicant became aware that it was alleged that he had committed certain criminal offences. The applicant was charged with two counts of acquiring, using or having in his possession criminal property contrary to s 329(1) of the Proceeds of Crime Act 2002 (UK). The particulars of the first count aver that the applicant committed the offence on or about 14 May 2010. The particulars of the second count aver that he committed that offence between 21 and 24 November 2010. On 16 November 2020 a Magistrate sent the applicant for trial in the Crown Court. That trial was scheduled to commence on 7 April 2025 before his Honour Judge Bartle KC in the Southwark Crown Court.
In the week before the trial was scheduled to commence the applicant’s legal representatives requested the CPS provide details of the provenance of certain documents that the prosecution had indicated that it intended to adduce in evidence. In response to that request the applicant’s legal representatives received copies of the CPS’s letters of request of 18 November 2010 and 9 December 2010 and the Department’s letters by which documents were sent of 23 March 2011 and 14 June 2011 and certain other communications between the CPS and Department during 2010 and 2011.
On 14 April 2025 Alex Johnson of the CPS wrote a letter to the Department. In the letter he indicates that the material the Department sent to the Home Office in 2011 obtained from Technocash was key evidence in the applicant’s trial and the applicant had challenged the admissibility of that evidence on the ground that it cannot be established that no restriction was placed on the use of the Technocash evidence by the Department when it was provided to the Home Office. Under a heading ‘Assistance sought’ attention was drawn to the proviso referred to in paragraph [18] and the note referred to in paragraph [25] (referred to in the letter as ‘paragraph 6’) and then said:
We are seeking from you absolute clarity as to whether:
A.Does paragraph 6 raise any restriction in relation to the Technocash material, sent to the Home Office on 23.3.11, that would restrict its use in the prosecution of [the applicant] for money laundering?
B.If there is a restriction, please could you now consider permitting that use?
(Emphasis omitted.)
On 15 April 2025 Rhianna Walker of the Department wrote to the CPS. The letter summarised the history of the provision of the material and previous correspondence and said: ‘We are of the view that paragraph 6 of the letter is consistent with Article 7(3) of the Agreement.’ The letter referred to and set out the proviso and said:
7.Accordingly, the question as to whether UK authorities may rely on the above-referenced stated purpose in using the material provided by Australian authorities for Operation Centrum in the criminal proceedings against [the applicant], a person not identified in the requests as a subject of Operation Centrum, is whether the criminal prosecution of [the applicant] arises/has arisen from the investigation known as Operation Centrum. We are of the view that this question is a matter for the UK authorities to determine.
On 16 April 2025 Mr Johnson wrote again to the Department. In that letter he expressed the view that the CPS was ‘firmly of the view that the criminal prosecution arises from the investigation known as Operation Centrum, and accordingly, that [the Department has] not imposed any restriction on the use of the material that would prohibit the prosecution of [the applicant].’ The letter indicated that the CPS had been informed of the applicant’s intention to apply in a federal court in Australia for a declaration to the effect that the CPS’s view in relation to the absence of any restriction on the use of the material was wrong. The letter requested, ‘in light of that litigation’, the Department’s explicit consent to use the material obtained from Technocash in the prosecution of the applicant. On 17 April 2025 Susis Williamson de Vries of the Department wrote to the CPS and affirmed the Department’s position in its letter of 15 April 2025 and said: ‘Notwithstanding [the position expressed in the earlier letter set out in paragraph [31] above], I confirm that Australian authorities consent to the use of the material as proposed in your correspondence.’
In an affidavit of Radhia Karaa sworn 22 April 2025 she deposes that the CPS has made extensive and prolonged use of the materials it received from the Department in 2011. She deposes that it was used in the investigation of the applicant including the process by which he was requested to attend and be interviewed under caution. The material was used in the applicant’s questioning and in the process which led to the decision to charge and to prefer charges against him. She deposes that it also featured in the criminal procedure that resulted in sending the applicant’s trial from the Magistrate’s Court to the Crown Court, preparation of evidence bundles and evidence for use in the trial, arraignment in the Crown Court and the prosecution seeking to tender it in evidence at his trial.
The transcript of the trial in the Crown Court on 16 April 2025 reveals that the admissibility of the relevant material is a matter of some importance for the trial. As matters stand, his Honour Judge Bartle KC was persuaded by the applicant’s counsel to defer ruling on the admissibility of the material until a decision is made in a federal court in Australia. His Honour expressed the tentative view that, while he would not be bound by a declaration of an Australian court, ‘the effect of any decision in Australia will be something which will have a profound effect, I anticipate, in relation to this case’. It appears that the trial commenced on 22 April 2025 and was expected to be completed on 9 or 16 May 2025.
The applicant’s claim
The applicant seeks declaratory relief in the following terms:
1.By reason of Article 7(3) of the [Agreement] referred to in Schedule 1 to the [UK Regulations], the only authorised and lawful purpose for which the documents provided by the [Department] to the Home Office of the United Kingdom on 23 March 2011 (pursuant to requests made by the United Kingdom on 18 November 2010 and 9 December 2010 to which the [Department] replied on 23 March 2011) may be used were and are limited to the investigation into and any subsequent prosecution (including any related restraint, confiscation and enforcement proceedings and any ancillary proceeding related thereto) in the United Kingdom of the following natural persons: [the 17 persons identified in the first letter of request and the two companies identified in the second letter of request].
1A.Given that United Kingdom authorities used the evidence and information referred to in paragraph 1 above, for the purposes of investigating and prosecuting [the applicant] without the Australian authorities’ consent from at least 2012:
(a)the United Kingdom authorities did not have and cannot now obtain the Australian authorities’ “prior consent” within the meaning of Article 7(3) of the [Agreement]; and
(b)the United Kingdom authorities’ letters to officers of the [Department], dated 14 April 2025 and 16 April 2025, were incapable of eliciting the requisite prior consent for that use.
Jurisdictional and constitutional issues
The Court has such original jurisdiction as is vested in it by laws made by the Parliament: s 19(1) of the Federal Court of Australia Act 1976 (Cth). Section 39B(1A)(c) of the Judiciary Act provides that the original jurisdiction of the Court includes jurisdiction in any ‘matter … arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted by any other criminal matter.’ Section 19(1) of the Federal Court Act and s 39B(1A)(c) of the Judiciary Act reflect s 76(ii) and s 77(i) of the Constitution which provide respectively that Parliament may make laws conferring original jurisdiction on the High Court in any matter arising under any laws made by the Parliament and may make laws defining the jurisdiction of any federal court other than the High Court.
The Attorney-General objects to the jurisdiction of the Court in this proceeding on the ground that there is not a ‘matter’ within the meaning of that word in s 39B(1A)(c) of the Judiciary Act because the applicant’s claim does not involve any justiciable controversy between the applicant and the Attorney-General. The applicant’s claim does not identify any immediate right, duty or liability to be established in the proceeding and the declarations sought are divorced from any attempt to administer Australian municipal law (the Mutual Assistance Act and UK Regulations).
Therefore, the jurisdictional question is whether the jurisdiction vested in the Federal Court under s 39B(1A)(c) of the Judiciary Act authorises the Court to entertain claims for declarations, by the applicant against the Attorney-General, as to obligations imposed on the United Kingdom under the Mutual Assistance Act, in circumstances in which the applicant is the subject of a criminal prosecution in the United Kingdom in which it is contended that a declaration of the Court would have practical utility for determination of the admissibility of evidence in his trial.
The Attorney-General also submits that the objection to jurisdiction involves the interpretation of the Constitution for the purposes of s 78B of the Judiciary Act because there is a dispute between the parties as to whether there is a ‘matter arising under any laws made by the Parliament’ within the meaning of s 39B(1A)(c) of that Act and that section, in turn, reflects the text of s 76(ii) of the Constitution. The Attorney-General submits that in these circumstances it is impossible for the Court to resolve the jurisdictional objection without determining the meaning of the text of s 76(ii) of the Constitution and, therefore, the jurisdictional issue is a matter involving the interpretation of the Constitution: Attorney-General (NSW) v Commonwealth Savings Bank of Australia [1986] HCA 22; 160 CLR 315 at 327-328.
Section 78B of the Judiciary Act provides, relevantly:
78B Notice to Attorneys-General
(1)Where a cause pending in a federal court including the High Court or in a court of a State or Territory involves a matter arising under the Constitution or involving its interpretation, it is the duty of the court not to proceed in the cause unless and until the court is satisfied that notice of the cause, specifying the nature of the matter has been given to the Attorneys-General of the Commonwealth and of the States, and a reasonable time has elapsed since the giving of the notice for consideration by the Attorneys-General, of the question of intervention in the proceedings or removal of the cause to the High Court.
(2)For the purposes of subsection (1), a court in which a cause referred to in that subsection is pending:
(a)may adjourn the proceedings in the cause for such time as it thinks necessary and may make such order as to costs in relation to such an adjournment as it thinks fit;
(b)may direct a party to give notice in accordance with that subsection; and
(c)may continue to hear evidence and argument concerning matters severable from any matter arising under the Constitution or involving its interpretation.
(3) For the purposes of subsection (1), a notice in respect of a cause:
(a)shall be taken to have been given to an Attorney-General if steps have been taken that, in the opinion of the court, could reasonably be expected to cause the matters to be notified to be brought to the attention of that Attorney-General; and
(b)is not required to be given to the Attorney-General of the Commonwealth if he or she or the Commonwealth is a party to the cause and is not required to be given to the Attorney-General of a State if he or she or the State is a party to the cause.
…
(5)Nothing in subsection (1) prevents a court from proceeding without delay to hear and determine proceedings, so far as they relate to the grant of urgent relief of an interlocutory nature, where the court thinks it necessary in the interests of justice to do so.
The Attorney-General has given notice that the proceeding involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act to the other Attorneys-General in accordance with Form 18 and r 8.11(2) of the Federal Court Rules 2011 (Cth). The Attorney-General informs the Court that responses from seven of the eight other Attorneys-General have been received all indicating that they do not wish to intervene in the proceeding.
At the time of the hearing, I was not persuaded that the jurisdictional issue involves a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act. As a consequence, and due to the urgent nature of the application, I heard argument on that question which, because of its nature, necessarily required the parties to make submissions on the jurisdictional issues and, also, on the substantive issues raised in the proceeding. I then reserved my decision on the question of whether I am duty bound not to proceed unless and until satisfied that notice of the cause has been given and a reasonable time has elapsed for consideration of the question of intervention in the proceeding or removal of the cause to the High Court. I also reserved my decision on the extent to which the cause may continue concerning matters severable from any matter arising under the Constitution or involving its interpretation. I then adjourned the application part-heard with a view to re-listing it should I decide that I am duty-bound not to proceed and one or more Attorneys-General wants to intervene, or proceed to determine the application if none wants to intervene or I decide that s 78B(1) is not applicable.
Is there a ‘matter’ arising under the Constitution or involving its interpretation?
For the reasons that follow, the jurisdictional issues the Attorney-General has raised in this proceeding do not involve a matter arising under the Constitution or its interpretation for the purposes of s 78B(1) of the Judiciary Act.
Section 78B of the Judiciary Act is not engaged merely because a party asserts that the cause involves a matter arising under the Constitution or involving its interpretation: Re Finlayson; Ex parte Finlayson (1997) 72 ALJR 73 at 74 (Toohey J); Glennan v Commissioner of Taxation (Cth) [2003] HCA 31; 198 ALR 250 at [14] (Gummow, Hayne and Callinan JJ); Daniels v Deputy Commissioner of Taxation [2007] SASC 431 at [17] (Debelle J, Sulan and Vanstone JJ agreeing); Australian Education Union v Lee [2010] FCAFC 153; 189 FCR 259 at [23] (Greenwood, Tracey and Buchanan JJ). Section 78B only operates when the circumstances it postulates are made to appear to the Court. What the section contemplates is ‘a constitutional question which is a live issue in the proceeding’: Narain v Parnell (1986) 9 FCR 479 at 489 (Burchett J). Section 78B does not impose on the Court a duty not to proceed pending the issue of a notice no matter how trivial, unarguable or concluded the constitutional point may be: Australian Competition and Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [14] (French J); Nikolic v MGICA Ltd [1999] FCA 849 (French J); Daniels at [17]; Green v Jones [1979] 2 NSWLR 812; 39 FLR 428 at 435 (Hunt J); Narain at 486-489 (Burchett J); State Bank of New South Wales v Commonwealth Savings Bank of Australia (1986) 4 NSWLR 549 at 557 (Kirby P). A matter should really and substantially arise under the Constitution or involve its interpretation before it attracts the operation of s 78B: C G Berbatis Holdings at [13]; Daniels at [17]; Narain at 489.
Section 78B was not intended to permit never-ending challenges to matters which have already been determined by the High Court, particularly recently by that Court: Green v Jones at 818. The same may be said of an interpretation of the Constitution that is long-settled and the cause merely involves the application of that settled meaning to the facts and circumstances of the case at hand. In such circumstances it could not be said that the constitutional question was truly ‘live’ or not ‘concluded’ or that the matter ‘really and substantially’ involves interpretation of the Constitution. As will be explained shortly, the term ‘matter’, where used in Ch III of the Constitution, has a meaning long and well-settled by the High Court as does the expression ‘arising under any laws made by the Parliament’. Plainly, I am bound to apply the meaning or the interpretation of that expression that the High Court has declared. The jurisdictional objections that the Attorney-General has made do not involve any novel interpretation or expansion of the meaning of the relevant text. The objections involve an orthodox application of the settled meaning to the applicant’s claims in the proceeding. In these circumstances I do not consider that s 78B(1) is engaged or applicable.
In any event, as mentioned, seven of the Attorneys-General have responded indicating their intention not to intervene since the s 78B notice was filed and served on the Attorneys-General on 29 April 2025. As at the time of giving these reasons, I am informed that one Attorney-General has not responded to the Commonwealth Attorney-General’s s 78B notice. I am satisfied, having regard to the urgent nature of the relief sought, that even if s 78B of the Judiciary Act is engaged, a reasonable time has elapsed since the giving of the notice for consideration and that any duty not to proceed has been discharged.
Is there a ‘matter’ arising under the Mutual Assistance Agreement or UK Regulations?
In the case of Re Judiciary Act 1903-1920; Re Navigation Act 1912-1920 [1921] HCA 20; 29 CLR 257 (at 265) a majority of the High Court said:
… we do not think that the word “matter” in sec. 76 means a legal proceeding, but rather the subject matter for determination in a legal proceeding. In our opinion there can be no matter within the meaning of the section unless there is some immediate right, duty or liability to be established by the determination of the Court. If a matter exists, the Legislature may no doubt prescribe the means by which the determination of the Court is to be obtained, and for that purposes may, we think, adopt any existing method of legal procedure of invent a new one. But it cannot authorize this Court to make a declaration of the law divorced from any attempt to administer that law. …
That passage is now regarded as containing the settled prima facie meaning of the word ‘matter’ where it appears in Ch III of the Constitution: Crouch v Commissioner for Railways (Q) [1985] HCA 69; 159 CLR 22 at 37-38 (Mason, Wilson, Brennan, Deane and Dawson JJ); State Bank of New South Wales at 563 (McHugh J).
In AZC20 v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 26; 278 CLR 512 Kiefel CJ, Gordon and Steward JJ said that ‘matter’ has two elements: ‘the subject matter itself as defined by reference to the heads of jurisdiction [in s 75 and s 76], and the concrete or adequate adversarial nature of the dispute sufficient to give rise to a justiciable controversy’. As to the second element their Honours said that ‘[e]xceptional categories aside, there can be no ‘matter’ within the meaning of Ch III of the Constitution unless “there is some immediate right, duty or liability to be established by the determination of the Court” in the administration of a law and unless the determination can result in the Court granting relief which both quells a controversy between parties and is available at the suit of the party seeking that relief’: AZC20 at [31]-[32] citing CGU Insurance Limited v Blakeley [2016] HCA 2; 259 CLR 339 at [27] (French CJ, Kiefel, Bell and Keane JJ) and Unions NSW v New South Wales (“Unions NSW [No 3]”) [2023] HCA 4; 277 CLR 627 at [15] (Kiefel CJ, Gageler, Gordon, Gleeson and Jagot JJ). In a similar way, in Re McBain; Ex parte Australian Catholic Bishops Conference [2002] HCA 16; 209 CLR 372 (at [62]), Gaudron and Gummow JJ suggested that the task of identification of the ‘matter’ the subject of a proceeding is to approached as a tripartite inquiry: (1) identification of the subject matter for determination; (2) identification of the right, duty or liability to be established in the proceeding; (3) identification of the controversy between the parties for the quelling of which the judicial power of the Commonwealth is invoked. While the inquiries are pursued separately ‘all are related to the basal question “is there a ‘matter’ in the sense required by Ch III of the Constitution?” …’.
However the identification of the ‘matter’ is approached, the ‘requirement to identify some ‘immediate right, duty or liability’ to be established by determination of the court ‘reinforces that the controversy that the court is being asked to determine is genuine, and not an advisory opinion divorced from a controversy’.’: AZC20 at [32], citing Palmer v Ayres [2017] HCA 5; 259 CLR 478 at [27]. Further, as Gaudron J observed in Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd [2000] HCA 11; 200 CLR 591 at [49]:
Absent the availability of relief related to the wrong which the plaintiff alleges, no immediate right, duty or liability is established by the Court’s determination. Similarly, if there is no available remedy, there is no administration of the relevant law. Thus, as Gleeson CJ and McHugh J pointed out in Abebe v Commonwealth [[1999] HCA 14; 197 CLR 510 at 526], ‘[i]f there is no legal remedy for a “wrong”, there can be no “matter”’.
But, it would be to invert the reasoning in Truth About Motorways to say that, if there is no ‘wrong’, nevertheless there is a ‘matter’ so long as there is an available remedy: Re McBain at [66].
As to the first element or identification of the subject matter falling within s 76(ii) of the Constitution, it is also well settled that a matter will ‘arise under’ a law of the Parliament in a number of ways. These, and the applicable authorities, were summarised by a Full Court (Allsop CJ, Besanko and White JJ) in Rana v Google Inc [2017] FCAFC 156; 254 FCR 1 as follows:
18A matter will “arise under” a law of the Parliament in a number of ways. These include cases where a cause of action is created by a Commonwealth statute; where a Commonwealth statute is relied upon as establishing a right to be vindicated; where a Commonwealth statute is the source of a defence that is asserted; where the subject matter of the controversy owes its existence to Commonwealth legislation — that is where the claim is in respect of or over a right which owes its existence to federal law; where it is necessary to decide whether a right or duty based on a Commonwealth statute exists even where that has not been pleaded by the parties, or where a federal issue is raised on the pleadings but it is unnecessary to decide: see generally R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett (1945) 70 CLR 141 at 154; Felton v Mulligan (1971) 124 CLR 367 at 374, 388, 403; Moorgate Tobacco Company Ltd v Philip Morris Ltd (1980) 145 CLR 457 at 476; LNC Industries Ltd v BMW (Australia) Ltd (1983) 151 CLR 575 at 581-582; Re McJannet; Ex parte Australian Workers’ Union of Employees (Qld) (No 2) (1997) 189 CLR 654 at 656-657; CGU Insurance Ltd v Blakeley (2016) 259 CLR 339; Australian Solar Mesh Sales Pty Ltd v Anderson (2000) 101 FCR 1 at 7-8. A matter may also exist prior to the commencement of formal proceedings and be federal in character at that point: Hooper v Kirella Pty Ltd (1999) 96 FCR 1 at [45]-[55]. There is a difference, however, between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction): see Felton at 374, 408-409, 416.
Although the applicant claims a declaration in terms that by reason of the Agreement referred to in the UK Regulations the authorised and lawful purposes for which the documents provided by the Department to the Home Office are limited, he made it clear in his submissions that the substance of the applicant’s claim is that by operation of the Mutual Assistance Act and UK Regulations an obligation is imposed on the United Kingdom, as the ‘Requesting Party’, in the terms of Art 7(3) of the Agreement. The Attorney-General accepts that the applicant’s claim in this respect is not ‘colourable’ or incapable of legal argument and, for that reason, may be a matter ‘arising under’ a law of the Parliament for the purposes of s 39B(1A)(c) of the Judiciary Act. As explained later, that concession is appropriate. The real nature of the Attorney-General’s objection is that the applicant’s claim does not meet the second element of a ‘matter’ because there is no justiciable controversy between the parties to the proceeding.
The Attorney-General submits that the applicant does not claim any declarations that relate to the manner in which the Attorney-General, or any other person, has exercised power under the Mutual Assistance Act or UK Regulations. Rather, the applicant seeks a primary declaration about the legal consequences of acts the Attorney-General lawfully and properly carried out in Australia for the United Kingdom in the United Kingdom. And, the applicant seeks a secondary declaration about the legal consequences of acts of the United Kingdom carried out in the United Kingdom.
The Attorney-General submits that no aspect of the declarations sought identify any immediate right, duty or liability to be established and, consequently, there is no justiciable controversy to be quelled between the parties to this proceeding. The relevant controversy is between the CPS and the applicant in the United Kingdom in criminal proceedings instituted in that country. The declarations sought in this proceeding are divorced from any attempt to administer the law (the Mutual Assistance Act or UK Regulations) in respect of which the declarations are sought. There are three points flowing from these matters that the Attorney-General submits demonstrate that there is no justiciable controversy between the parties to this proceeding amenable to resolution by the Court.
First, the question as to whether or not the documents provided to the Home Office have been misused in the United Kingdom will be determined by the courts of England and Wales under English law. The Attorney-General refers to s 9(2) of the Crime (International Co-operation) Act 2003 (UK) as the applicable English law and R v Gill [2017] EWCA Crim 1612 as an example of the application of that law by the Court of Appeal of England and Wales. The Attorney-General submits that there is no role that a declaration of this Court could play in determining misuse of the documents under English law and, by reference to Mokbel v Attorney-General (Cth) [2007] FCA 1536 at [65]-[68] (Gordon J) and Samsonidis v Commissioner, Australian Federal Police [2007] FCAFC 159; 163 FCR 111 at [35] (Gray ACJ, Jessup and Middleton JJ), this Court could not make a declaration concerning the lawfulness of the use of the documents in the United Kingdom by representatives of the Government of the United Kingdom.
Second, the issue the applicant requests this Court to determine is not identical to the issue which must be determined by the Crown Court in England which is seized with jurisdiction for the applicant’s prosecution. In this respect, the Attorney-General submits that the question raised in this proceeding is whether the documents should not be used ‘without prior consent’ for the purposes of Art 7(3) of the Agreement (emphasis added). Whereas, the question that arises under s 9(2) of the Crime International Co-operation Act (UK) is whether evidence may not be used ‘without consent’. The Attorney-General submits that this illustrates the flaw in the application because, in making the requested declarations, this Court will not be ruling on the statute that will be applied in the United Kingdom to determine the lawful use and admissibility of documents (evidence) in that forum.
Third, there is no controversy between the applicant and the Attorney-General which may be quelled by the declarations sought. The controversy is between the applicant and the Crown (UK) who is not a party to this proceeding. Therefore, no declaration made in this proceeding could bind the Crown (UK). Nor could any declaration bind the Crown Court in England or any other court of England and Wales. The possibility of the Crown Court regarding a declaration of this Court as persuasive falls short of enlivening this Court’s jurisdiction. Rather, it is an indication that what is really sought is an advisory opinion which is not a ‘matter’ for the purposes of s 39B(1A)(c) of the Judiciary Act.
Notwithstanding the Attorney-General’s formidable submissions, the question as to whether the applicant’s claim meets the description of a ‘matter … arising under a law of the Parliament’ is answered by reference to the applicant’s assertions, not by reference to the merits of his substantive claim. It is sufficient that the claim be genuinely in controversy and that it give rise to an issue capable of judicial determination. Any other approach would involve the extremely inconvenient result that the existence or absence of jurisdiction to deal with a particular claim would depend upon the substantive result of that claim: Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; 276 CLR 216 at [34]-[46] (Kiefel CJ, Gageler, Keane, Gordon, Steward and Gleeson JJ). It is important, therefore, to identify the nature of the applicant’s claim to ascertain whether it falls within s 39B(1A)(c) of the Judiciary Act.
The essence of the applicant’s claim is that the Mutual Assistance Act and UK Regulations ‘draw into’ Australian municipal law the terms of the Agreement. In particular, Art 7(3) of the Agreement. The applicant contends that, through the application of the Agreement as Australian law, in effect, an obligation is imposed on the United Kingdom, as a matter of Australian municipal law, that it must not use the documents the Attorney-General provided under the Mutual Assistance Act for a purpose that was not expressed in the letters of request without the Attorney-General’s prior consent. The applicant contends that the purpose expressed in the letters of request did not include the investigation and prosecution of him for the offences for which he has been charged in the United Kingdom. The applicant contends that it is now too late for the United Kingdom to obtain the Attorney-General’s consent to use the documents for that purpose because it was necessary to obtain that consent prior to that use.
Self-evidently, the claim does not involve any right, obligation, liability or duty of the applicant arising out of the Mutual Assistance Act and UK Regulations. Nonetheless, the claim could be characterised as involving an obligation of the United Kingdom and a corresponding right of Australia that relevant documents not be used for a purpose other than that stated in the request without Australia’s prior consent. That is not an abstract question because it involves the legal effect of acts that have taken place. A dispute about such an obligation and right may be a ‘matter … arising under a law of the Parliament’ because it involves an obligation or right alleged to have its source in a law of the Parliament. Further, there is no general proposition that the immediate right, duty or liability to be established by the determination of the Court must be a right, duty or liability in which the opposing parties have correlative interests: Re McBain at [67] (Gaudron and Gummow JJ). However, in the context of the applicant’s claim in this proceeding, identification of an asserted obligation of the United Kingdom arising under the Mutual Assistance Act and UK Regulations is necessary, but not sufficient, to establish the existence of a matter.
The passage from Re Judiciary and Navigation Acts cited earlier contains two concepts. One is the notion of an abstract question of law not involving the right or duty of any body or person; the second is the making of a declaration of law divorced or dissociated from any attempt to administer it: Mellifont v Attorney-General (Qld) [1991] HCA 53; 173 CLR 289 at 303 (Mason CJ, Deane, Dawson, Gaudron and McHugh JJ). The primary purpose of exercising judicial power is not the maintenance of legal principle, that is incidental to the primary purpose which is the determination of the dispute in hand: Fencott v Muller [1983] HCA 12; 152 CLR 570 at 609. The function of the Court is not giving of legal answers or the declaration of legal principle – it is the resolution of a controversy about a legal right, duty or liability: Unions NSW New South Wales at [13]-[22]. Thus, there is no ‘matter’ within the constitutional meaning of that term unless there is a remedy available at the suit of the person instituting the proceeding in question. A bare declaration with no foreseeable consequences is so divorced from the administration of the law that it does not involve a matter for the purposes of Ch III of the Constitution: Truth About Motorways at [48], [52] (Gaudron J).
In CGU Insurance a majority of the High Court (French CJ, Kiefel, Bell and Keane JJ) said (some footnotes omitted):
30The justiciability requirement encompassed in the concept of “matter” appears in the description of that term by the majority in Fencott v Muller as “a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy” [Fencott v Muller at 603 (Mason, Murphy, Brennan and Deane JJ)]. It has an evaluative element as also appears from the majority judgment in Fencottv Muller [at 608 (Mason, Murphy, Brennan and Deane JJ)]:
“What is and what is not part of the one controversy depends on what the parties have done, the relationships between or among them and the laws which attach rights or liabilities to their conduct and relationships. The scope of a controversy which constitutes a matter is not ascertained merely by reference to the proceedings which a party may institute, but may be illuminated by the conduct of those proceedings and especially by the pleadings in which the issues in controversy are defined and the claims for relief are set out.”
The evaluative element is illustrated by, but not confined to, the delineation of the so called “accrued jurisdiction” to entertain non-federal claims in federal jurisdiction, by their Honours’ observation that it is:
“a matter of impression and of practical judgment whether a non-federal claim and a federal claim joined in a proceeding are within the scope of one controversy and thus within the ambit of a matter.”
[Fencott v Muller at 608]
In National Australia Bank Limited v Nautilus Insurance Pte Ltd (No 2) [2019] FCA 1543; 377 ALR 627 Allsop CJ observed:
84Once one appreciates that the controversy identified independently of the proceedings is the matter, and if the matter is one that engages s 75 or s 76, the whole or part of that matter can be the subject of proceedings in a federal court if that court has jurisdiction to hear the matter by conferral of the relevant jurisdiction by reference to s 75 or s 76. If only part of the matter is sought to be resolved by the proceeding the court will not be denied authority to decide it because no federal issue is involved in the proceeding, as long as the question that arises in the proceeding can properly be seen to be part of a matter within federal jurisdiction, that is as part of “the controversy which is amenable to judicial determination in the proceeding”: Croome v Tasmania at CLR 125; ALR 400; Fencott v Muller at CLR 591 and 603; ALR 54 and 64, Crouch v Commissioner at CLR 37–8; ALR 11–12; and Re Judiciary and Navigation Acts (1921) 29 CLR 257 at 265–6; 27 ALR 193. To require the proceeding itself to raise the federal issue, if only part of the controversy is the subject of the proceeding, is to import the narrower conception of “case and controversy” into Ch III of the Constitution and thereby to narrow it. Any restriction on bringing part of the controversy before the court in a proceeding that does not seek to resolve the whole controversy must be found elsewhere.
In CGU Insurance the liquidators of a company (Akron) commenced proceedings against three former directors and another company (Crewe Sharp) that was also alleged to have been a director of the company under an extended meaning of ‘director’ in which the liquidators asserted claims under the Corporations Act 2001 (Cth). Crewe Sharp and a former director made claims in respect of the proceeding under a contract of insurance and CGU had declined the claim. Crewe Sharp subsequently entered into a creditors’ voluntary liquidation. Neither Crewe Sharp nor its liquidators accepted the denial of liability. The liquidators of Akron applied to join CGU to the proceeding and to amend its claim to include a declaration to the effect that CGU was liable to indemnify Crewe Sharp under the contract of insurance. A majority of the High Court concluded that the interest upon which the claim for declaratory relief was based and CGU’s denial of liability under the policy were sufficient to constitute a justiciable controversy between the Akron liquidators and CGU because the liquidators’ claim was based on the legal consequence created by s 562 of the Corporations Act by which, in the event that CGU was liable to indemnify Crewe Sharpe, the Akron liquidators had a right to the proceeds of the insurance policy payable to Crewe Sharp in respect of its liability to Akron. Although the declaration would only be binding between the liquidators of Akron and CGU, in circumstances in which the insureds were also parties, albeit not claiming relief against CGU, it was unlikely that the insureds or CGU would be permitted to relitigate, in subsequent proceedings, issues which had been determined or could properly, and should, have been agitated in the proceedings against CGU. Therefore, the declaration against CGU had foreseeable consequences for the whole controversy: CGU Insurance at [67]-[68].
The originating application must be dismissed. I will hear the parties on costs if they are not agreed.
I certify that the preceding one hundred and thirty-four (134) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Feutrill. Associate:
Dated: 14 May 2025
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