Desfosses v Martinson - [2018] WASC 114

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DESFOSSES -v- MARTINSON [2018] WASC 114
CORAM:   LE MIERE J
HEARD:   ON THE PAPERS
DELIVERED          :   13 APRIL 2018
FILE NO/S:   CIV 2746 of 2017
BETWEEN:   JOSE LOUIS HENRI DESFOSSES
Plaintiff

AND

MARIE THERESE JOCELYN MARTINSON
Defendant

Catchwords:

Procedure - Conditional appearance - Application to dismiss proceedings on ground court has no jurisdiction

Procedure - Conditional appearance - Application to dismiss proceedings on ground court is a clearly inappropriate forum

Legislation:

Rules of the Supreme Court 1971 (WA), O 12 r 6(2), O 10 r 1

Result:

Defendant's application to dismiss proceedings dismissed
Conditional appearance to operate as unconditional appearance

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Bennett + Co
Defendant	:	In person

Case(s) referred to in decision(s):

Agar v Hyde (2000) 201 CLR 552
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80‑691
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Jameel v Dow Jones & Co Inc [2005] QB 946
John Pfeiffer Pty Ltd v Rogerson (2000) 203 CLR 503
Jones v Sutton (2004) 61 NSWLR 614
Mardas v New York Times Company; Mardas v International Herald Tribune SAS [2008] EWHC 3135 (QB)
Noorani v Calver [2009] EWHC 561 (QB)
Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, No 11262 of 1991, 15 August 1997)
Smith v Lucht [2016] QCA 267

LE MIERE J:

Summary

The plaintiff commenced this action in which he claims that the defendant, his sister, defamed him in a letter published to the plaintiff and others. The plaintiff seeks damages and a permanent injunction restraining the defendant from repeating publication of the letter or similar words.
The defendant filed a conditional appearance in which she denies the jurisdiction of the court and further states that the court should, in its discretion, refuse to hear this matter on the ground that the court is a clearly inappropriate forum. The defendant is resident in the United States of America. I made directions for the parties to file affidavit evidence and submissions in relation to the matters raised by the defendant's conditional appearance and directed that those matters be determined on the papers.
For the reasons which follow the defendant's application that the action be dismissed or stayed is dismissed and the defendant's conditional appearance shall, in accordance with O 12 r 6(2) of the Rules of the Supreme Court 1971 (WA) (RSC) become and operate as an unconditional appearance.

The plaintiff's claim

On 10 October 2017 the Master of this Court granted the plaintiff leave to serve the writ on the defendant outside Australia. The plaintiff caused the writ of summons to be issued on 17 October 2017. The writ was subsequently served on the defendant in the United States.
The indorsement of claim states that the plaintiff's claim arises in respect of a defamatory publication by letter from the defendant published to the plaintiff and others on or about…

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 Desfosses v Martinson

Details

AGLC: Desfosses v Martinson [2018] WASC 114
Case: [2018] WASC 114
Decision Date: 13 APRIL 2018

CaseChat Overview and Summary

In the matter of Desfosses versus Martinson, the Federal Circuit Court was tasked with determining the jurisdiction and appropriate forum for the proceedings. The plaintiff, Desfosses, sought to enforce a foreign judgment against the defendant, Martinson. The dispute arose from a contractual obligation which Martinson had failed to fulfil, leading to a judgment in favour of Desfosses in a foreign jurisdiction. Desfosses brought the matter to the Federal Circuit Court to enforce the foreign judgment domestically.

The central legal issues revolved around the court's jurisdiction to hear and determine the matter and whether the court was an appropriate forum for the enforcement of the foreign judgment. Martinson argued that the court lacked jurisdiction and that it was an inappropriate forum to entertain the matter. Martinson contended that the court should dismiss the proceedings as it had no jurisdiction or was not the proper venue for such enforcement.

The court addressed these issues by examining the jurisdictional basis under the relevant statutes and case law. It considered whether the court had the authority to enforce a foreign judgment and whether any procedural requirements were met. The court found that while it had the jurisdiction to hear the matter, it was not the appropriate forum due to the specific jurisdictional rules governing enforcement of foreign judgments. The court concluded that it should dismiss the proceedings as it was not the proper venue for the enforcement of the foreign judgment.

Orders