FEDERAL COURT OF AUSTRALIA Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 613 Citation: Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 613 Parties: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 and FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 v NOEL WOFF, RICHARD CORBY and FUNERAL PLANNING AUSTRALIA PTY LTD ACN 050 727 015 and ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED File number: SAD 99 of 2012 Judge: BESANKO J Date of judgment: 21 June 2013 Corrigendum: 21 June 2013 Catchwords: PRACTICE AND PROCEDURE – application to join proposed fourth respondent – application to remove matter from Fast Track list – first, second and third respondents opposed application – proposed fourth respondent neither consented nor opposed application – application filed late in the proceedings – whether joinder should be allowed pursuant r 9.05(1)(b)(ii) and (iii) of the Federal Court Rules 2011 – significance of the risk of two trials, inconsistent findings of fact and additional costs. PLEADINGS – application to file and serve draft Statement of Claim – proposed fourth respondent opposed application – whether paragraphs were irrelevant and embarrassing – whether there were insufficient particulars – whether applicants were able to make a claim for a declaration of contravention against the proposed fourth respondent under s 1317E of the Corporations Act 2001 (Cth). COSTS – application for costs thrown away. Held: The applicants be granted leave to join the proposed fourth respondent. The proceeding be removed from the Fast Track list and the matter proceed on pleadings. The applicants to prepare draft orders consistent with these reasons and the relevant time limits for various steps. The applicants to pay the first, second and third respondents' costs thrown away. Legislation: Constitution (Cth) ss 76(ii), 77(i) Corporations Act 2011 (Cth) ss 9, 79, 180, 181, 182, 183, 1317DA, 1317E, 1317F, 1317G, 1317H, 1317J, 1317K, 1317L, 1337B Copyright Act 1968 (Cth) ss 31, 32, 119 Federal Court of Australia Act 1976 (Cth) ss 21, 37M Federal Court Rules 2011 rr 9.05(1), 40.13 Judiciary Act 1903 (Cth) s 39B Cases cited: Fodare Pty Ltd v Shearn [2010] NSWSC 737 Foyster v Foyster Holdings [2002] NSWSC 768 Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 One.Tel Limited (In Liquidation) v John David Rich and Ors [2005] NSWSC 226 Port of Melbourne Authority v Anshun Proprietary Limited (1980) 147 CLR 589 Primary Underwriting Agency Pty Ltd (formerly Landmark Underwriting Agency Pty Ltd) v Kilborn [2007] NSWSC 158 Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727 Date of hearing: 7 June 2013 Date of last submission: 12 June 2013 Place: Adelaide Division: GENERAL DIVISION Category: Catchwords Number of paragraphs: 40 Counsel for the Applicant: Mr M Douglas Solicitor for the Applicant: Ashurst Australia Counsel for the First, Second and Third Respondents: Mr K Esser Solicitor for the First, Second and Third Respondents: Esser Legal Counsel for the Fourth Respondent: Mr D Gration Solicitor for the Fourth Respondent: TurksLegal FEDERAL COURT OF AUSTRALIA Lifeplan Australia Friendly Society Ltd v Woff [2013] FCA 613 CORRIGENDUM 1 Order 7 is amended by inserting the words "within seven days" after the word "lodge". I certify that the preceding one (1) numbered paragraph is a true copy of the Corrigendum to the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 21 June 2013 IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 99 of 2012 BETWEEN: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 First Applicant FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 Second Applicant AND: NOEL WOFF First Respondent RICHARD CORBY Second Respondent FUNERAL PLANNING AUSTRALIA PTY LTD ACN 050 727 015 Third Respondent ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED Fourth Respondent JUDGE: BESANKO J DATE OF ORDERs: 7 JUNE 2013 and 21 JUNE 2013 WHERE MADE: ADELAIDE ON 7 JUNE 2013 THE COURT ORDERED THAT: 1. The applicants be granted leave to join the Ancient Order of Foresters in Victoria Friendly Society Ltd to this proceeding as the fourth respondent. 2. That the proceeding no longer be conducted in accordance with Fast Track Directions. 3. The applicants pay the costs of the first, second and third respondents thrown away as a result of orders (1) and (2) above. 4. The matter proceed on pleadings. 5. The applicants file and serve such short submissions as they may be advised with respect to the cases referred to in Court by counsel for Ancient Order of Foresters in Victoria Friendly Society Limited on 7 June 2013 on or before Wednesday 12 June 2013. 6. The directions hearing be adjourned to Thursday 15 August 2013 at 9.00am (Adelaide time). THE COURT ORDERS THAT: 7. The applicants lodge minutes of order reflecting these reasons and dealing with subsequent interlocutory steps. Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011. IN THE FEDERAL COURT OF AUSTRALIA SOUTH AUSTRALIA DISTRICT REGISTRY GENERAL DIVISION SAD 99 of 2012 BETWEEN: LIFEPLAN AUSTRALIA FRIENDLY SOCIETY LTD ACN 087 649 492 First Applicant FUNERAL PLAN MANAGEMENT PTY LTD ACN 003 769 640 Second Applicant AND: NOEL WOFF First Respondent RICHARD CORBY Second Respondent FUNERAL PLANNING AUSTRALIA PTY LTD ACN 050 727 015 Third Respondent ANCIENT ORDER OF FORESTERS IN VICTORIA FRIENDLY SOCIETY LIMITED Fourth Respondent JUDGE: BESANKO J DATE: 21 JUNE 2013 PLACE: ADELAIDE REASONS FOR JUDGMENT The Interlocutory Application 1 On 12 April 2013, which was nearly 11 months after this proceeding was instituted, the applicants issued an interlocutory application seeking, relevantly, the following orders: 1. That the Applicants be granted leave to join Ancient Order of Foresters in Victoria Friendly Society Ltd to this proceeding as the Fourth Respondent. 2. That the proceeding be removed from the Fast Track list and proceed in the General list. 3. That the matter proceed on pleadings. 4. That the Applicants be granted leave to file and serve a Statement of Claim in the terms proposed by annexure RAJB-1 to the affidavit of Richard Antony James Bunting sworn on 12 April 2013 on or before Tuesday 7 May 2013. 2 In addition to the above orders, the applicants sought orders relating to the filing of defences, replies and categories of documents for the purposes of discovery. With their application the applicants filed and served an affidavit of their solicitor, Richard Antony James Bunting, sworn on 12 April 2013. 3 The parties made written submissions with respect to orders 1, 2 and 4 of the application and with respect to the costs of any joinder and removal from the Fast Track list. The applicants' outline of submissions was dated 14 May 2013. The submissions of the existing respondents were dated 21 May 2013. They opposed the orders sought by the applicants. The Ancient Order of Foresters in Victoria Friendly Society Ltd's ("Foresters") outline of submissions was dated 21 May 2013. Foresters neither consented to nor opposed the application that the applicants be granted leave to join it as a respondent. Foresters did submit that the applicants should not be given leave to file and serve the draft Statement of Claim which was annexure RAJB-1 to the affidavit of Richard Antony James Bunting sworn on 12 April 2013. The applicants' submissions in reply were dated 24 May 2013. The applicants annexed to their submissions in reply a further draft Statement of Claim which they contended "provides those further particulars which the Applicants are able to plead at this time without reference to the information obtained through the Supreme Court proceedings". I have determined this application by reference to this document which I will refer to as the draft Statement of Claim. At a directions hearing on 7 June 2013 Foresters referred to cases relating to s 1317J(4) of the Corporations Act 2001 (Cth). The "Applicants' Submissions in Response to Authorities Cited by the Fourth Respondent in relation to ss 1317E and 1317H of the Corporations Act 2001 (Cth)" were dated 12 June 2013. 4 On 7 June 2013, I made orders substantially in terms of paragraphs 1, 2 and 3 of the applicants' interlocutory application and an order for costs thrown away. I said that I would publish reasons and these are my reasons for making those orders. These reasons also deal with the applicants' application for leave to file and serve the draft Statement of Claim. The Claims made by the Applicants 5 Lifeplan Australia Friendly Society Ltd ("Lifeplan") engaged and engages in the business of, among other things, the provision of professional investment administration services, investment products and information in relation to funeral planning, including pre-paid funeral plans. Funeral Plan Management Pty Ltd ("FPM") engaged and engages in the business of, among other things, the promotion, marketing and distribution of Lifeplan funeral products. It is a wholly owned subsidiary of Lifeplan. Lifeplan in turn is a wholly owned subsidiary of Australian Unity Ltd (ACN 087 648 888). 6 Lifeplan and FPM allege that they are the owners or exclusive licensees of materials and information each item of which comprises confidential information pertaining to their business interests, or is a literary or artistic work within the meaning of ss 31, 32 and 119 of the Copyright Act 1968 (Cth) ("Copyright Act") or both. 7 Mr Noel Jeffrey Woff was employed by Lifeplan in the position of "Manager Funeral Plan Management" pursuant to a written contract of employment dated 27 March 2001. On 29 December 2010 Mr Woff resigned from that employment. Thereafter, he commenced employment with Foresters. Mr Richard John Corby was employed by Lifeplan in the position of "National Sales Manager" of FPM pursuant to a written contract of employment dated 11 November 2002. Mr Corby commenced his employment with Lifeplan on 16 December 2002. On 25 November 2010 he resigned from that employment. Thereafter, he commenced employment with Foresters. Funeral Planning Australia Pty Ltd ("FPA") was registered as a corporation within the meaning of the Corporations Act 2001 (Cth) on 11 November 2010. Messrs Woff and Corby have been its only company directors and secretaries since 2 December 2010. 8 Foresters is a public company limited by guarantee and it engaged and engages in the business of the marketing and management of investment and insurance products including Friendly Society bonds, funeral bonds and death and distress benefit funds. Foresters held and holds an Australian Financial Services Licence. Mr Kerry Allan Hughes is Foresters' chief executive officer and company secretary. 9 On 14 May 2012 Lifeplan and FPM instituted this proceeding which was marked as a Fast Track Application. The respondents to the application were Messrs Woff, Corby and FPA. The essence of the applicants' claim was that Messrs Woff and Corby owed duties to the applicants in relation to the applicants' intellectual property, commercial in-confidence information and electronic information. The alleged duties arose by reason of their employment contracts, their position as officers under the Corporations Act, their position as fiduciaries and as a result of what are referred to as Confidentiality and Intellectual Property Declarations and an Information and Technology Agreement. In essence, the applicants allege that the respondents misused confidential information and breached the applicants' copyright in materials and information protected by copyright. FPA is alleged to have been a party to a knowing and unlawful use of the applicants' confidential and copyright information. 10 The applicants allege that Mr Hughes and Foresters were aware of the standing and position of both Mr Woff and Mr Corby. The applicants allege that during 2010 there were various meetings between Messrs Woff and Corby, on the one hand, and Mr Hughes, as agent for and on behalf of Foresters, on the other. Broadly speaking, it is alleged that these meetings were held with a view to Messrs Woff and Corby resigning from their employment with the applicants and taking up employment with Foresters. The applicants allege that Foresters had knowledge of the fact that Messrs Woff and Corby were acting in breach of various duties to the applicants in relation to confidential information and the reproduction or use of copyright materials. The applicants allege that FPA commenced business immediately in January 2011; that Mr Woff commenced employment with Foresters pursuant to a written contract executed on 31 December 2010; that Mr Corby commenced employment with Foresters pursuant to a written contract executed on 31 December 2010, and that: Foresters entered into an arrangement with FPA in the nature of a joint venture, by which FPA engaged and engages in the business of the promotion and marketing of Foresters' funeral products, in accordance with a written contract between FPA and Foresters entitled "Marketing and Service Agreement" and dated 31 December 2010; 11 The applicants plead the following causes of action against Foresters: (1) Inducing breach of contract and unlawful interference with contractual relations; (2) Accessorial liability for breach of fiduciary duties; (3) Accessorial liability for breach of confidence; (4) Involvement in contraventions of ss 180, 181, 182 and 183 of the Corporations Act within the meaning of s 79 of that Act; (5) Breaches of the Copyright Act; (6) Passing off; and (7) Civil conspiracy. 12 In annexure A of the applicant's draft Statement of Claim they refer to 33 items of confidential information and in annexure B they refer to 55 items of copyright works and materials. 13 The applicants' claim the following declaration against Foresters in paragraph 33(a) of the draft Statement of Claim: a declaration within the meaning of s 1317E of the Corporations Act that Foresters was and is involved within the meaning of s 79 of the Corporations Act in Woff's and Corby's contravention of ss 180 to 183 of the Corporations Act; Joinder, Fast Track Directions and Pleadings 14 All parties accepted that if Foresters was joined to the proceeding then it would no longer be appropriate for the proceeding to be the subject of Fast Track Directions. In other words, it would be a matter in the general list. They also accepted that if the matter was placed in the general list then it would be appropriate that it proceed on pleadings. 15 Rule 9.05(1) of the Federal Court Rules 2011 relevantly provides: (1) A party may apply to the Court for an order that a person be joined as a party to the proceeding if the person: (a) …. (b) is a person: (i) … (ii) whose joinder is necessary to ensure that each issue in dispute in the proceeding is able to be heard and finally determined; or (iii) who should be joined as a party in order to enable determination of a related dispute and, as a result, avoid multiplicity of proceedings. 16 It is unnecessary for me to discuss these grounds for joinder in any detail. As I have said, Foresters neither consented to nor opposed the application that it be joined. The existing respondents advanced a number of matters in opposition to the application for joinder, but they did not suggest that joinder in a case such as the present was not within one or other of the above paragraphs in Rule 9.05 (1)(b)(ii) and (iii). Plainly, it is because the applicants' proceeding against the existing respondents and their proposed proceeding against Foresters are closely related. Furthermore, there are considerable advantages in Foresters being joined as a respondent rather than the applicants pursuing Foresters in a separate proceeding. Those advantages are the well known advantages in cases where there is an overlap between what are potentially two proceedings and include avoiding two trials, avoiding inconsistent findings of facts and avoiding the additional costs involved in two trials. There were powerful arguments in favour of the joinder of Foresters. 17 The existing respondents opposed joinder having regard to the history of the proceeding. They pointed to the fact that it was the applicants who commenced the proceeding as one subject to Fast Track Directions and that by notice of objection pursuant to 2.4 of Practice Notes CM 8 (Fast Track) dated 29 May 2012 they objected to the proceeding being subject to Fast Track Directions. That objection failed. They pointed to the fact that the proceeding had been in the Court for some time, was substantially advanced, if not ready for trial, as a case between the applicants and the existing respondents, and they submitted that substantial costs would be wasted if Foresters was joined and the proceeding placed in the general list. The respondents also pointed to the fact that the applicants sought and obtained pre-action discovery against Foresters in the Supreme Court of South Australia in June 2012. Furthermore, Foresters gave the applicants permission to use the discovered documents for the purposes of this proceeding. 18 One issue of importance on the application for joinder was the reason the applicants had not applied to join Foresters earlier. They had sufficient evidence to issue a pre-action discovery application in the Supreme Court of South Australia in June 2012. The applicants identified an affidavit of Mr Kerry Hughes sworn on 15 March 2013 as the reason they sought to join Foresters, but they did not say that the affidavit made the difference in terms of the evidence they had against Foresters. They put the matter differently. They said that it became apparent from Mr Hughes' affidavit that they could not quarantine the issues between them and the existing respondents and between them and Foresters. In his affidavit in support of the application Mr Bunting said: 11. I refer to the First Walsh Affidavit. At the time of commencing this proceeding I see that the Applicants had documents to indicate that Foresters was at least liaising with Mr Woff and Mr Corby during 2010, while both remained employed by the Lifeplan, but only limited evidence which illuminates the nature and extent of Foresters' involvement in the misconduct alleged against the First, Second and Third Respondents in this proceeding. 12. The Applicants took steps to investigate the evidence available regarding potential causes of action against Foresters as a result of Foresters' involvement in the First to Third Respondents' conduct including by application for pre-action disclosure in the Supreme Court of South Australia. The content of the Hughes FCA Affidavit (filed on behalf of the First to Third Respondents) puts facts relevant to those causes of action into issue in this proceeding, and because it appears the most appropriate course for the effective disposition of issues in dispute, the Applicants now seek to prosecute the claims against Foresters in this Honourable Court. … 18. The Hughes FCA Affidavit is advanced as proposed evidence in chief by the First to Third Respondents and, given its content, the First to Third Respondents have chosen to introduce directly into issue in this proceeding Mr Hughes' and Foresters' role in their conduct before and immediately following the conclusion of Mr Woff and Mr Corby's employment with the Applicants. I am of the view that, given the evidence filed by the First, Second and Third Respondents, it is no longer practical or appropriate to contemplate quarantining the trial of any causes of action which they May (sic) have against Foresters from this proceeding as those causes of action arise from the same matrix of facts which will be tried in this action. To have separate proceedings would involve essentially the same issues and facts, being adjudicated by different courts. Accordingly, the Applicants seek orders for permission to join Foresters to this action. … 19 In their written submissions counsel for the applicants wrote: 15. As explained in paragraphs 10-12 of the Bunting Affidavit, the Hughes Affidavit puts into issue in these proceedings facts relevant to at least the following causes of action, which the Applicants now seek to prosecute against Foresters: (a) accessorial liability for breaches of fiduciary duties by the Existing Respondents; (b) accessorial liability for breaches of confidence by the Existing Respondents; (c) accessorial liability for breaches of the Corporations Act 2001 (Cth) by the Existing Respondents; (d) accessorial liability for breaches of the Copyright Act 1968 (Cth) by the Existing Respondents; (e) passing off; and (f) civil conspiracy in combination or agreement with the Existing Respondents. 20 The applicants knew of Foresters' involvement and of potential causes of action against it and it is difficult to resist the conclusion that Mr Hughes' affidavit caused a re-examination by a fresh pair of eyes (the applicants changed solicitors in January 2013) of the earlier decision not to join Foresters and a greater emphasis by the applicants' advisers on the possibility of an Anshun plea (Port of Melbourne Authority v Anshun Proprietary Limited (1980) 147 CLR 589) by Foresters in any subsequent proceedings. It seemed to me that a realistic appraisal of the position was that as far as the applicants were concerned, the degree of overlap emerged more clearly after Mr Hughes' affidavit was filed. 21 The existing respondents' submissions against joinder by reference to the history of the proceeding had considerable force. However, there were some matters to be placed in the scales on the other side. They were as follows. On 18 December 2012, another judge of the Court made a number of orders, including an order that the existing respondents file and serve their affidavit evidence by 14 February 2013, other than of any proposed witness who will be required by subpoena to attend the hearing and give evidence, and reserving to any party liberty to apply at the hearing for parts of the evidence of a particular witness or witnesses to be given orally. On 5 February 2013 I made an order that the matter be listed for hearing on 12 – 15 March 2013 and 18 – 19 March 2013 with further time for hearing during the week commencing 25 March 2013 if necessary. Until 22 January 2013 the existing respondents were represented by a large legal firm. That firm ceased to act for the existing respondents and the firm filed a notice of ceasing to act on 22 January 2013. It may well be, as Mr Woff asserts, that the existing respondents could no longer afford to pay the legal fees they were being charged, but the fact is that from 22 January 2013 the existing respondents were unrepresented. 22 On 22 February 2013 I conducted a directions hearing. I vacated the trial date on the application of the existing respondents and I ordered that they pay the applicants' costs occasioned by the vacation of the trial dates. The existing respondents had not filed their affidavit evidence in accordance with previous orders and I made an order extending the time within which they were to do so to on or before 4pm on 15 March 2013. As between the applicants and the existing respondents, it was the latter's conduct and actions which led to the vacation of the trial date. 23 At a directions hearing on 19 March 2013 the applicants foreshadowed that they would bring an application to join Foresters. 24 I considered that the arguments in favour of joinder were strong. The applicants' case is that the existing respondents and Foresters are co-contraveners or, that Foresters is liable as an accessory to contraventions or breaches by the existing respondents. In addition, I had not fixed another trial date. To be weighed against those matters was the way in which the proceeding had proceeded so far and the delay associated with how the proceeding may have proceeded if Foresters was joined. I considered the matters in favour of joinder outweighed the matters against an order for joinder. 25 I considered that, if there were any, the existing respondents' costs thrown away by the joinder of Foresters should be paid by the applicants. The joinder of Foresters made two things inevitable. One was the removal of the case from the Fast Track "list" and two, was that the proceeding would now proceed on pleadings. Any wasted work or duplication in those respects gave rise, in my opinion, costs thrown away which should be paid by the applicants. There is force in the applicants' submission that there are no costs thrown away because most of the work already performed will not need to be duplicated because it is relevant to the proceeding as it will be with Foresters as a respondent. However, I cannot rule out the possibility that there will be some costs thrown away. For example, if there are additional costs in terms of the preparation of a Defence as distinct from the Fast Track Response which had already been prepared, then they are costs thrown away as between the applicants and the existing respondents. The former should pay the costs thrown away because it is their conduct which has resulted in costs thrown away. However, I did not think it appropriate to order that the costs be fixed or taxed and paid before the proceeding continues. The ordinary rule is that interlocutory costs are not taxed until the proceeding is finished and I did not consider that there were any grounds to depart from the rule (see Federal Court Rules 2011 r 40.13 and Rafferty v Time 2000 West Pty Limited (No 3) [2009] FCA 727 at 508 – 509 [19] – [24] per Besanko J). Furthermore, the fact that I did not consider that any costs thrown away could be assessed at this stage of the proceeding was an additional reason not to make such an order. It was for these reasons among others that I declined to accept the tender by the existing respondents of the affidavit of Melanie Jane Crow. The Draft Statement of Claim 26 There was no dispute that removal from the Fast Track "list" means that the proceeding should proceed on pleadings. 27 Foresters submits that there are a number of deficiencies in the draft Statement of Claim and that the applicants should not be given leave to file and serve it in its present form. 28 First, Foresters submits that the plea in paragraph 8(e)(ii) which identifies its company directors and the members of its board is irrelevant and causes it embarrassment. I agree with that submission because none of the individuals identified are otherwise specifically referred to in the draft Statement of Claim. Foresters makes a similar submission concerning the reference in paragraph 20(b) to Mr Hughes, who is alleged to be the chief executive officer and company secretary of Foresters. I disagree with that submission. I do not think paragraph 20(b) causes Foresters any embarrassment and it is clear that Mr Hughes is a key figure in the applicants' case against Foresters. 29 Secondly, Foresters submits that the draft Statement of Claim is deficient in that it does not contain particulars of Foresters' knowledge and involvement in various alleged breaches of duty by the first and second applicants. As I have said, the applicants sought to address this submission by attaching to their submissions in reply an amended draft Statement of Claim. I have considered the proposed amendments in that document. In my opinion, they overcome the alleged deficiencies at least for the purposes of a grant of leave to file and serve a Statement of Claim. 30 Thirdly, Foresters submits that the applicants do not have standing to seek a declaration of contravention under s 1317E of the Corporations Act (see [13]). 31 Section 1317E(1) confers on the Court the power to make declarations of contravention. It is contained in Part 9.4B of the Corporations Act and that Part deals with the consequences of contravening provisions in the Act which are defined by reference to s 1317E as "civil penalty provisions". The duties in ss 180(1), 181(1) and (2), 182(1) and (2), and 183(1) and (2) are defined as civil penalty provisions. Section 1317J limits the entity which may apply for declarations of contravention under s 1317E(1) to the Australian Securities and Investments Commission ("ASIC") (subsections (1) and (4)). Aside from declarations of contravention the relevant corporation may apply for a compensation order and that may be done whether or not a declaration of contravention has been made under s 1317E (s 1317J(2)). 32 Where ASIC applies for a declaration of contravention under s 1317J and the Court is satisfied that there has been a contravention, then the Court must make a declaration (s 1317E(1)). There is no discretion in the Court to decline to make a declaration. The declaration must be in a particular form (s 1317E(2)) and it is conclusive evidence of the matters referred to in the declaration (s 1317F). Where a declaration of contravention is made and other conditions are satisfied the Court may order a person to pay the Commonwealth a pecuniary penalty (s 1317G(1)) and furthermore, the Court may order a person to compensate the corporation for damage suffered by it (s 1317H(1)). In the case of a corporation/scheme civil penalty provision (see the definition in s 1317DA) a declaration of contravention may lead to a person being disqualified from managing a corporation by reason of an order made under s 206C of the Act. There is a time limit of six years on an application for a declaration of contravention (s 1317K) and a direction as to the rules of evidence and procedures to be applied in proceedings for a declaration of contravention (s 1317L). 33 Foresters referred to cases which have held that the Court would only make a declaration of contravention under s 1317E in proceedings brought by ASIC and that the Court would only hear the ASIC in support of a declaration of contravention: Foyster v Foyster Holdings [2002] NSWSC 768; One.Tel Limited (In Liquidation) v John David Rich and Ors [2005] NSWSC 226 at [68] – [70] per Bergin J; Primary Underwriting Agency Pty Ltd (formerly Landmark Underwriting Agency Pty Ltd) v Kilborn [2007] NSWSC 158 [6] – [12] per Young CJ in Eq; Futuretronics.com.au Pty Limited v Graphix Labels Pty Ltd [2007] FCA 1621 at [28] per Besanko J; Fodare Pty Ltd v Shearn [2010] NSWSC 737 at [21] – [23] per Barrett J. Those cases do support that proposition. 34 The applicants contend that I should allow the plea seeking a declaration of contravention to be included in the draft Statement of Claim to be filed. They made a number of submissions in support of that contention. 35 The applicants submit that I should give them leave and, if so advised, Foresters can apply to strike out the relevant plea. I disagree with that submission. The applicants apply for leave to join Foresters and to file and serve a Statement of Claim against it. If the draft Statement of Claim contains an allegation against Foresters which is unarguable then it should not be the subject of leave. As I understand it, that was the position before the enactment of s 37M of the Federal Court of Australia Act 1976 (Cth), but if that be wrong, I think it is certainly the position since the enactment of s 37M. Having said that, I accept that before refusing leave to plead a particular allegation, I must be satisfied that the allegation is unarguable. 36 The applicant submits that the Court's general power to grant declaratory relief in s 21 of the Federal Court of Australia Act 1976 (Cth) is the source of a power to grant the declaration it seeks. 37 The Court's power to grant declarations of right is a wide one, but it is limited by the fact that it may only be done "in civil proceedings in relation to a matter in which it has original jurisdiction". The relevant matter in which this Court has original jurisdiction is "with respect to civil matters arising under the Corporations legislation": s 1337B(1) of the Corporations Act. A civil matter is defined to mean a matter other than a criminal matter (s 9). Section 1337B(1) is contained in Part 9.6A Division 1 of the Corporations Act and that Division operates to the exclusion of s 39B of the Judiciary Act 1903 (Cth) (s 1337A(2)). Therefore, the source of the Court's jurisdiction is ss 76(ii) and 77(i) of the Constitution and the Corporations Act itself. Parliament can confer jurisdiction subject to limitations and, in my opinion, that is what it has done. Part 9.4B creates a special regime for the type of declaration it identifies. As I have said, there is a time limit, provision for rules of evidence and procedure, the removal of any discretion in the Court to refuse to make a declaration, provisions dealing with the form of a declaration of contravention and a conclusive evidence provision. Importantly, a declaration of contravention is a precondition to the imposition by order of the Court of a pecuniary penalty and furthermore, it may lead to disqualification of a person from managing a corporation. It is in that context that Parliament has addressed the entities who may apply for various forms of relief specified in Part 9.4B including a provision that only ASIC may apply for a declaration of contravention. The applicants' submission that s 1317J goes no further than creating a freestanding cause of action in ASIC breaks down when the clear terms of s 1317J(1) and (4) are considered: (1) ASIC may apply for a declaration of contravention, a pecuniary penalty order or a compensation order. … (4) No person may apply for a declaration of contravention, a pecuniary penalty order or a compensation order unless permitted by this section. 38 In my opinion, the general jurisdiction conferred by s 1337B(1) is constrained or limited by the express terms of s 1317J read in the context of Part 9.4B as a whole. The lack of jurisdiction to make a declaration of contravention on the application of a party other than ASIC is not overcome by deleting the reference in the claim for relief of the words, "within the meaning of s 1317E of the Corporations Act". 39 I would not allow the draft Statement of Claim to be filed and served with the plea against Foresters in paragraph 33(a). Conclusions 40 The applicants should have leave to file and serve a Statement of Claim consistent with these reasons. I had anticipated making an order about this and other interlocutory orders which flow from the filing and serving of a Statement of Claim. However, on reflection, it seems to me more desirable to give the parties the opportunity to address the orders to be made and the relevant time limits for various steps. The applicants are to lodge within seven days draft minutes of order reflecting these reasons and dealing with subsequent interlocutory steps. If the orders are agreed then I will make them in chambers. I certify that the preceding forty (40) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Besanko. Associate: Dated: 21 June 2013