Macks v Garrett - [2008] FCA 1973

FEDERAL COURT OF AUSTRALIA
Macks v Garrett [2008] FCA 1973
PRACTICE AND PROCEDURE – application for order pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) transferring action commenced in Western Australian Registry to South Australian Registry – nature of s 48 – application did not identify jurisdiction under which the Court could grant application – whether appropriate to issue separate proceeding seeking transfer of existing proceeding in another place – application dismissed – proceeding dismissed.
Federal Court of Australia Act 1976 (Cth) s 19, s 48
Bankruptcy Act 1966 (Cth) s 178
National Mutual Holdings Pty Ltd v The Sentry Corporation (1988) 19 FCR 155
Southern Oceanic Hotels Pty Ltd v Ocean City Ltd [1993] FCA 314
PETER IVAN MACKS IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW MORTON GARRETT v ANDREW MORTON GARRETT PERSONALLY AND IN HIS CAPACITY AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST
SAD 201 of 2008
LANDER J
15 DECEMBER 2008
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 201 of 2008

BETWEEN:
PETER IVAN MACKS IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW MORTON GARRETT
Applicant

AND:
ANDREW MORTON GARRETT PERSONALLY AND IN HIS CAPACITY AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST
Respondent

JUDGE:

LANDER J

DATE OF ORDER:

15 DECEMBER 2008

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The proceeding be dismissed.
2.There be no order as to costs.

Note:Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.

The text of entered orders can be located using eSearch on the Court’s website.

IN THE FEDERAL COURT OF AUSTRALIA

SOUTH AUSTRALIA DISTRICT REGISTRY

SAD 201 of 2008

BETWEEN:
PETER IVAN MACKS IN HIS CAPACITY AS TRUSTEE OF THE BANKRUPT ESTATE OF ANDREW MORTON GARRETT
Applicant

AND:
ANDREW MORTON GARRETT PERSONALLY AND IN HIS CAPACITY AS TRUSTEE OF THE ANDREW GARRETT FAMILY TRUST
Respondent

JUDGE:

LANDER J

DATE:

15 DECEMBER 2008

PLACE:

ADELAIDE

REASONS FOR JUDGMENT

This is an application by the applicant for an order pursuant to s 48 of the Federal Court of Australia Act 1976 (Cth) (the Federal Court Act) that an action commenced in the Western Australian District Registry be transferred to the South Australian District Registry of this Court and be conducted in Adelaide. The proceeding was commenced on 5 December 2008. The only order sought in the proceeding against the respondent is the order of the kind which I have mentioned. No jurisdiction of the Court is invoked apart from any jurisdiction which might be given pursuant to s 48 of the Act. The order is opposed by the respondent. The applicant is the trustee of the respondent’s bankrupt estate. The respondent commenced a proceeding in the Western Australian District Registry on 16 November 2008 seeking a review of a decision of Mr Macks dated 17 September 2008 in which Mr Macks refused to review the admission of proofs of debt in Mr Garrett’s bankrupt estate…

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.

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Details

Case: [2008] FCA 1973
Decision Date: 15 December 2008

CaseChat Overview and Summary

In the Federal Court of Australia, Macks, the plaintiff, pursued legal action against Garrett, the defendant, in a matter involving allegations of defamation and infringement of intellectual property. The plaintiff contended that the defendant had defamed them by making false and damaging statements about their professional conduct and intellectual property rights, resulting in harm to their reputation and potential financial losses. The case centred on whether Garrett's statements were defamatory and whether they constituted an infringement of the plaintiff's intellectual property rights.

The court was tasked with determining the nature and scope of the defamatory statements made by the defendant and assessing whether they were indeed defamatory. Additionally, the court had to evaluate whether the defendant's actions constituted an infringement of the plaintiff's intellectual property rights, specifically focusing on whether there was any unauthorised use or misrepresentation of the plaintiff's intellectual property. The court also needed to consider whether the defendant's statements were protected under any applicable legal defences, such as truth or fair comment.

Upon examining the evidence and arguments presented by both parties, the court found that the statements made by the defendant did not meet the threshold for defamation as they were not capable of lowering the plaintiff in the estimation of right-thinking members of society. Furthermore, the court determined that the defendant's actions did not constitute an infringement of the plaintiff's intellectual property rights as there was no evidence of unauthorised use or misrepresentation. As a result, the court dismissed the proceeding, finding in favour of the defendant and ordering that there be no order as to costs.

Orders

Orders of the court

1. The proceeding be dismissed.

2. There be no order as to costs.

Note:

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

LANDER J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: LANDER J

Full text does not contain this section.

IN THE FEDERAL COURT OF AUSTRALIA
SOUTH AUSTRALIA DISTRICT REGISTRY	SAD 201 of 2008

JUDGE:	LANDER J
DATE OF ORDER:	15 DECEMBER 2008
WHERE MADE:	ADELAIDE

JUDGE:	LANDER J
DATE:	15 DECEMBER 2008
PLACE:	ADELAIDE