Bartlett v Roffey - [2024] FCA 906

FEDERAL COURT OF AUSTRALIA
Bartlett v Roffey [2024] FCA 906

File number: WAD 132 of 2023

Judgment of: COLVIN J

Date of judgment: 15 August 2024

Catchwords: DEFAMATION - application for leave to bring proceedings nunc pro tunc under s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic) - where applicant discontinued earlier defamation proceedings in Supreme Court of Western Australia - where earlier proceedings discontinued only after applicant failed on contested interlocutory application for proceedings to be transferred to Supreme Court of Victoria - whether leave should be granted in the circumstances - whether grant of leave would give rise to multiplicity of proceedings - whether application an abuse of process - whether any grant of leave should be subject to conditions - held continuance of proceedings in this Court gives rise to multiplicity only in a very limited sense because earlier proceedings were discontinued before proceedings commenced in this Court - held discontinuance of earlier proceedings for the purpose of circumventing decision of Supreme Court constitutes an abuse of process - held abuse of process could be overcome by further orders transferring proceedings to Victoria Registry and requiring applicant to discharge liability to costs in Supreme Court - application allowed - further orders made

Legislation:
Defamation Act 1974 (NSW) s 9

Defamation Act 2005 (Vic) s 23

Defamation Act 2005 (WA) s 23

Cases cited:
Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90

Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90

Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750; (2015) 237 FCR 127

Lakaev v McConkey [2023] TASSC 48

Massarani v Kriz [2022] FCA 80

Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383

UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77

Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290

Division: General Division

Registry: Western Australia

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 60

Date of hearing: 19 March 2024

Counsel for the Applicant: Mr JD MacLaurin SC

Solicitor for the Applicant: Bartlett Workplace Lawyers And Consultants

Counsel for the Respondents: Mr S Mukerjea

Solicitor for the Respondents: Gilbert + Tobin

ORDERS

WAD 132 of 2023

BETWEEN:
GLEN ROBERT BARTLETT

Applicant

AND:
KATE LOUISE ROFFEY

First Respondent

DAVID IAN RENNICK

Second Respondent

STEVEN JOHN MORRIS

Third Respondent

DAVID ALEXANDER ROBB
Fourth Respondent

ORDER MADE BY:

COLVIN J

DATE OF ORDER:

15 AUGUST 2024

THE COURT ORDERS THAT:
1.For the purposes of s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic), there be leave to the applicant to bring these proceedings.
2.Order 1 shall take effect as if made immediately before these proceedings were commenced.
3.The proceedings be transferred to the Victoria Registry of the Court.
4.On or before 23 August 2024, any party seeking an order for costs of the interlocutory application…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Bartlett v Roffey

Details

AGLC: Bartlett v Roffey [2024] FCA 906
Case: [2024] FCA 906
Decision Date: 15 August 2024

CaseChat Overview and Summary

Bartlett sought leave to bring defamation proceedings against Roffey, having earlier discontinued such proceedings in the Supreme Court of Western Australia. The application for leave was brought under the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic). The key legal issues were whether leave should be granted in the circumstances, whether such a grant would give rise to multiplicity of proceedings, whether the application was an abuse of process, and whether any grant of leave should be subject to conditions.

The Court found that the discontinuance of the earlier proceedings for the purpose of circumventing the decision of the Supreme Court constituted an abuse of process. However, this abuse of process could be overcome by further orders transferring the proceedings to the Victoria Registry and requiring Bartlett to discharge his liability to costs in the Supreme Court. The Court held that the continuance of the proceedings in the Federal Court gave rise to multiplicity only in a very limited sense because the earlier proceedings were discontinued before proceedings commenced in the Federal Court. The application was allowed, and further orders were made, including that the proceedings be transferred to the Victoria Registry and that Bartlett must discharge his liability to costs in the Supreme Court before any further steps could be taken in the Federal Court.

The orders made by the Court included granting leave for the proceedings to be brought, transferring the proceedings to the Victoria Registry, setting a timeline for submissions on costs, and requiring Bartlett to discharge his liability to costs in the Supreme Court before any further steps could be taken. The Court also allowed for any party to seek a further order pursuant to the conditions set out in the orders.

Orders

Orders of the court

1. For the purposes of s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic), there be leave to the applicant to bring these proceedings.

2. Order 1 shall take effect as if made immediately before these proceedings were commenced.

3. The proceedings be transferred to the Victoria Registry of the Court.

4. On or before 23 August 2024, any party seeking an order for costs of the interlocutory application dated 6 September 2023 do file and serve an outline of submissions of no more than three pages setting out the orders sought and the contentions advanced in support of the making of those orders, together with any necessary affidavit.

5. On or before 30 August 2024, each party do file and serve any submissions in response of no more than three pages, together with any necessary responsive affidavit.

6. Subject to further order, any application for costs in accordance with these orders be determined on the papers.

7. Save for the making of submissions as to costs in accordance with these orders and subject to further order, no further step be taken in these proceedings unless and until the applicant has discharged his liability to costs in the proceedings brought by him against the respondents in the Supreme Court of Western Australia in CIV 1987 of 2022 or made adequate provision by way of security for those costs.

8. There be leave to any party to seek a further order pursuant to order 7.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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File number:	WAD 132 of 2023
Judgment of:	COLVIN J
Date of judgment:	15 August 2024
Catchwords:	DEFAMATION - application for leave to bring proceedings nunc pro tunc under s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic) - where applicant discontinued earlier defamation proceedings in Supreme Court of Western Australia - where earlier proceedings discontinued only after applicant failed on contested interlocutory application for proceedings to be transferred to Supreme Court of Victoria - whether leave should be granted in the circumstances - whether grant of leave would give rise to multiplicity of proceedings - whether application an abuse of process - whether any grant of leave should be subject to conditions - held continuance of proceedings in this Court gives rise to multiplicity only in a very limited sense because earlier proceedings were discontinued before proceedings commenced in this Court - held discontinuance of earlier proceedings for the purpose of circumventing decision of Supreme Court constitutes an abuse of process - held abuse of process could be overcome by further orders transferring proceedings to Victoria Registry and requiring applicant to discharge liability to costs in Supreme Court - application allowed - further orders made
Legislation:	Defamation Act 1974 (NSW) s 9 Defamation Act 2005 (Vic) s 23 Defamation Act 2005 (WA) s 23
Cases cited:	Carey v Australian Broadcasting Corporation [2012] NSWCA 176; (2012) 84 NSWLR 90 Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90 Hockey v Fairfax Media Publications Pty Limited (No 2) [2015] FCA 750; (2015) 237 FCR 127 Lakaev v McConkey [2023] TASSC 48 Massarani v Kriz [2022] FCA 80 Rush v Nationwide News Pty Limited (No 9) [2019] FCA 1383 UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77 Zetta Jet Pte Ltd v The Ship 'Dragon Pearl' (No 2) [2018] FCAFC 132; (2018) 265 FCR 290
Division:	General Division
Registry:	Western Australia
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	60
Date of hearing:	19 March 2024
Counsel for the Applicant:	Mr JD MacLaurin SC
Solicitor for the Applicant:	Bartlett Workplace Lawyers And Consultants
Counsel for the Respondents:	Mr S Mukerjea
Solicitor for the Respondents:	Gilbert + Tobin

ORDER MADE BY:	COLVIN J
DATE OF ORDER:	15 AUGUST 2024