Background
Muhammad Abdul-Rahman Khan sought judicial review of a Federal Court Registrar’s decision under r 2.26 of the Federal Court Rules 2011 (Cth) refusing to accept an originating application and statement of claim for filing. The proposed proceeding against the State of Victoria concerned alleged noncompliance with Victorian planning controls, including complaints about roads, footpaths, storm-water management and planning-permit conditions. Mr Khan sought injunctions, restoration orders and compensation under the Planning and Environment Act 1987 (Vic).
The Registrar concluded that the documents disclosed no basis for Federal Court jurisdiction and were doomed to fail. In seeking review, Mr Khan did not challenge the Registrar’s treatment of s 118 of the Constitution. He argued instead that the Registrar had failed to consider whether s 2 of the Australia Act 1986 (Cth) supported jurisdiction under s 39B of the Judiciary Act 1903 (Cth).
The Court’s Holding
Button J dismissed the application. Her Honour accepted that legal error may be identified in the Registrar’s failure to consider whether jurisdiction arose through s 2 of the Australia Act. The omission was not material, however, because the Registrar’s decision inevitably would have been the same had that issue been considered.
There was no controversy about Victoria’s legislative power to enact the Planning and Environment Act and therefore no “matter” arising under s 2 of the Australia Act. The dispute’s subject matter did not owe its existence to Commonwealth legislation. Because there was no realistic possibility of a different decision, the error was immaterial; quashing the refusal and remitting the filing decision would also have been futile.
Key Takeaways
- A failure to consider a claimed jurisdictional basis may constitute legal error while still being immaterial if consideration of that basis could not realistically change the outcome.
- Merely referring to a Commonwealth law does not create a matter arising under that law; there must be a genuine controversy whose subject matter owes its existence to Commonwealth legislation.
- Judicial-review relief may be refused where setting aside and remitting the decision would be futile.
Why It Matters
The decision illustrates the distinction between identifying legal error and establishing its materiality. Even though the Registrar did not address the Australia Act argument, relief was unavailable because that argument could not establish Federal Court jurisdiction or affect the filing decision.
It also underscores that parties invoking s 39B jurisdiction must identify an actual federal controversy, not simply cite Commonwealth legislation alongside claims whose substance arises under state law.