FEDERAL COURT OF AUSTRALIA
Malecki v Macko [2022] FCA 766
File number: SAD 142 of 2021 Judgment of: BESANKO J Date of judgment: 5 July 2022 Catchwords: HIGH COURT AND FEDERAL COURT — federal jurisdiction — where applicants bring claim for damages against respondents for publication of defamatory matter — where second applicant and second respondent are corporations — where one of publications alleged in Statement of Claim is publication alleged to have been made by email to Australian Financial Complaints Authority (AFCA) — where in written submissions received by Court to determine issue of jurisdiction, applicants assert that AFCA publication read in Australian Capital Territory — whether assertion colourable — jurisdiction established — consideration of alternative basis of jurisdiction, that second applicant and second respondent owe their corporate status and capacity to sue or to be sued to Corporations Act 2001 (Cth) Legislation: Judiciary Act 1903 (Cth) s 39B Cases cited: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16; (2022) 400 ALR 1
Colagrande v Telstra Corporation Limited [2020] FCA 1595
Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451
Hafertepen v Network Ten Pty Limited [2020] FCA 1456
Hooper v Kirella Pty Ltd [1999] FCA 1584; (1999) 96 FCR 1
Oliver v Nine Network Australia Pty Ltd [2019] FCA 583
R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141
Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1
Tucker v McKee [2022] FCAFC 98
Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd [2009] FCA 742; (2009) 258 ALR 89
Allsop J, “Federal Jurisdiction and the Jurisdiction of the Federal Court of Australia in 2002” (2002) 23 Aust Bar Rev 29–60
Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020)
Division: General Division Registry: South Australia National Practice Area: Other Federal Jurisdiction Number of paragraphs: 36 Date of hearing: 30 September 2021 Counsel for the Applicants: The First Applicant appeared in person and on behalf of the Second Applicant Counsel for the Respondents: Ms T Flaherty Solicitor for the Respondents: Vardon Legal ORDERS
SAD 142 of 2021 BETWEEN: ANDREW MALECKI
First Applicant
BETTER LENDING PTY LTD (ACN 131 473 348)
Second Applicant
AND: CHRISTOPHER EDWARD MACKO
First Respondent
MACKO CORPORATION PTY LTD (ACN 163 659 925) IN ITS OWN RIGHT AND AS TRUSTEE FOR THE MACKO CORPORATION TRUST
Second Respondent
ORDER MADE BY:
BESANKO J
DATE OF ORDER:
5 JULY 2022
THE COURT ORDERS THAT:
1.The Court has jurisdiction to hear and determine this proceeding.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
REASONS FOR JUDGMENT
BESANKO J:
Introduction
This is a decision on the Court’s jurisdiction to hear and determine a proceeding before the Court. The applicants bring a claim for damages against the respondents for the…
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- Malecki v Macko [2022] FCA 766
- Case
- [2022] FCA 766
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CaseChat Overview and Summary
The legal issues the court had to address were whether the publication made to AFCA occurred in the Australian Capital Territory and if the corporation's status under the Corporations Act 2001 (Cth) could be a basis for federal jurisdiction. The applicants suggested that since the AFCA publication was read in the Australian Capital Territory, this would give the court jurisdiction. However, the court found that the jurisdictional issue was complex and did not require a definitive answer given that jurisdiction was otherwise established. The court also considered whether the fact that the corporations' capacity to sue or be sued depended on federal law could be a basis for federal jurisdiction but decided not to make a conclusive determination on this issue.
The court concluded that it had jurisdiction to hear and determine the proceeding based on the established jurisdictional grounds. It noted that while the argument about the corporations' status under the Corporations Act was arguable, it did not need to resolve this point because jurisdiction was already confirmed. The court did not express a definitive view on the alternative basis of jurisdiction that the corporations' status might provide.
ORDERS:
1. The Court has jurisdiction to hear and determine this proceeding.
Orders
Orders of the court
1. The Court has jurisdiction to hear and determine this proceeding.
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
Full text does not contain this section.
Decision
Reasons for decision
Ratio Decidendi
Legal Principle Established
That conclusion is decisive of the question of jurisdiction in this case. I will briefly explain the reasons why I will not express a concluded view with respect to the second possible source of jurisdiction.The Second Applicant and the Second Respondent are Corporations It will be recalled that the respondents in their written submissions referred to the observations, relevant to this issue, of Lee J in Oliver (at [16]), which are set out above (at [17]). His Honour held that jurisdiction was attracted, applying the decision in Crosby v Kelly and, in relation to his Honour’s observations about jurisdiction based on corporate status, he went no further than saying that the point was arguable (see also Hafertepen v Network Ten Pty Limited [2020] FCA 1456 at [44] per Katzmann J). Justice of Appeal Leeming, writing extra-curially, expresses the view that there will be a matter arising under a law of the Parliament where the “status” of a party turns on federal law and that, for example, claims by administrators under a deed of company arrangement depend on the status afforded to them by the Corporations Act, and so are within federal jurisdiction (Leeming M, Authority to Decide: The Law of Jurisdiction in Australia (2nd ed, Federation Press, 2020) at 205, citing Vopak Terminal Darwin Pty Ltd v Natural Fuels Darwin Pty Ltd [2009] FCA 742; (2009) 258 ALR 89 (Vopak Terminal Darwin) at [48] per Lindgren J). His Honour does not comment on whether the further step can or should be taken of holding that in the case of a corporation, because its status depends on a law of the Parliament, federal jurisdiction is attracted in any matter to which a corporation is party. In my opinion, the starting point is the concept of a matter “arising under” a law of the Parliament in s 39B(1A)(c) of the Judiciary Act and the proposition that that expression encompasses matters in which the right or duty in question owes its existence to federal law or depends upon federal law for its enforcement, whether or not the determination of the controversy involves the interpretation (or validity) of the law (R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett [1945] HCA 50; (1945) 70 CLR 141 at 154 per Latham CJ). The argument which results in jurisdiction is that corporations owe their capacity to sue or to be sued to ss 119 and 124(1) of the Corporations Act and any right to be enforced by a corporation or duty to be enforced against it owes its existence to federal law. An alternative formulation of the argument might be to characterise the capacity to sue or to be sued itself as a right or duty owing its existence to federal law. On the other hand, there are substantial arguments against jurisdiction. There would appear to be a distinction between a “matter” — in the sense of the justiciable controversy between the parties arising out of the substratum of facts and claims representing, or amounting to, the dispute or controversy between or amongst the parties (see above at [9]) — arising under federal law, and a party’s ability or capacity to agitate a matter or liability in relation to a matter arising under federal law. It is the matter which must itself arise under federal law in order for jurisdiction to be engaged, in that the jurisdictional basis must be endogenous to the justiciable controversy between the parties. If this is a valid and relevant distinction, it means that the Court will not have jurisdiction in a matter itself bearing no real connection to federal law merely by reason of the link, exogenous to the justiciable controversy, between a party or parties to the matter, and the Corporations Act.