Mansell v Cumming

[1989] FCA 117

Re: MICHAEL MANSELL and TASMANIAN ABORIGINAL CENTRE INC
And: FIA CUMMING; NATIONWIDE NEWS PTY LTD; EDWARD STEVENSON and CHRISTOPHER
MILES
No. G13 of 1988
FED No. 117
Practice and Procedure

COURT

IN THE FEDERAL COURT OF AUSTRALIA

TASMANIA DISTRICT REGISTRY
GENERAL DIVISION
Northrop J.(1)

CATCHWORDS

Practice and Procedure - Claims under Trade Practices Act 1974 common law defamation and under the Defamation Act 1957 (Tas) - application for transfer to Supreme Court of Tasmania under cross-vesting legislation - jurisdiction of Federal Court - principles to be applied under cross-vesting legislation.

Trade Practices Act 1974 s.s.52, 56A, 65A, 86A

Defamation Act 1957 (Tas.)

Jurisdiction of Court (Cross-vesting) Act 1987 Commonwealth s.5(4)

Jurisdiction of Court (Cross-vesting) Act 1987 (Tas.) s.s.4(1), 4(3)

Federal Court Act s.s.30, 40

HEARING

HOBART

#DATE 4:4:1989

Counsel for Applicant: Mr Slicer

Solicitors for Applicant: Aboriginal Legal Service

Counsel for 1st & 2nd named Respondents: Mr Kaye

Solicitors for 1st & 2nd named Respondents: Messre Page & Seager

Counsel for 3rd named Respondent: Mr D.J. Parkinson

Solicitor for 3rd named Respondent: Mr D.J. Parkinson

Counsel for 4th named Respondent: Mr Cranswick Q.C. with Mr O'Farrell

Solicitors for 4th named Respondent: Messrs Dobson, Mitchell & Allport

JUDGE1

These reasons for judgment are published with respect to orders made by the Court on 7 February 1989 including an order that this proceeding be transferred to the Supreme Court of Tasmania. In order to understand the orders made, it is necessary to set out in some detail the narrative of events leading to the orders being made.

1. The proceeding was commenced by an application filed on 16 September 1988 in which the applicants claimed damages against the respondents being:-
   

"1. Damages for common law defamation;

2. Defamation contrary to the Defamation Act 1957

(Tas.); and

3. Breach of Section 52 of the Trade Practices Act 1974."

1. The application was accompanied by a statement of claim. At the first directions hearing on 29 September 1988, questions arose as to the names of the parties, defects in the statement of claim and the application of the cross-vesting legislation. Directions were given granting leave to the applicants to correct the name of the second respondent Nationwide News Pty. Ltd. ("Nationwide"), and to file and deliver an amended statement of claim. Other directions were given and the directions hearing was adjourned to 8 November 1988.

2. A reference to the amended statement of claim shows that the first applicant Michael Mansell ("Mansell") is a legal practitioner carrying on his profession in Tasmania as the legal firm Aboriginal Legal Service. The second applicant Tasmanian Aboriginal Centre Inc. ("the Aboriginal Centre") is incorporated in Tasmania and is a body carrying on its work in Tasmania. The first respondent Fia Cumming "(Cumming") is a journalist employed by Nationwide, a trading corporation incorporated in New South Wales and the owner and publisher of the newspaper "The Sunday Telegraph" which is printed and published in New South Wales and circulates throughout Australia including Tasmania. The third respondent Edward Stevenson ("Stevenson") is the secretary general and a member of Tasmanians of Aboriginal Descents Association. The fourth respondent Christopher Miles ("Miles") is a member of the House of Representatives of the Commonwealth being the member for Braddon in Tasmania. He is the spokesman for the opposition on matters relating to Aboriginal Affairs. The applicants claims are based upon articles published in the Sunday Telegraph on 19 June 1988 and entitled "Govt Inquiry into Mansell Centre" and "'He's not Aboriginal' 2 Tassie groups claim". The articles were written by Cumming and contained statements made by Stevenson and Miles. The statement of claim alleges that the articles constituted misleading and deceptive conduct or conduct which was likely to mislead or deceive contrary to the provisions of the Trade Practices Act 1974 and damages are claimed against Nationwide under that Act. The statement of claim alleges that the articles contain libels of the applicants published in New South Wales, Victoria, the Australian Capital Territory and other parts of Australia. The statement of claim alleges that the articles contained defamatory matter which was unlawful under the Defamation Act 1957 (Tas.). Mansell, Stevenson and Miles are residents of Tasmania and Cumming is a resident of New South Wales. The statement of claim alleges that the causes of action arise under the laws of New South Wales, Victoria, Tasmania and the Commonwealth of Australia.

3. At the directions hearing on 8 November 1988 an order was made:-
   

"That the following questions be decided separately from any other question and before any trial of the proceeding:

(a) whether the second-named respondent

(Nationwide) was on 19 June 1988 a prescribed information provider within the meaning of s.65A of the Trade Practices Act 1974;

(b) if yes to (a) whether the publication of the matter contained in Schedules A and B to the amended statement of claim was made by the second-named respondent in the course of carrying on a business of providing information."

A number of consequential and other directions were given and the directions hearing was adjourned to 7 February 1989.

1. At the directions hearing on 7 February 1989, the matters to be heard were the hearing and determination of the preliminary questions and the hearing of motions by the respondents that the proceeding be transferred to the Supreme Court of Tasmania, and that if not transferred, the suit be tried with a jury pursuant to s.40 of the Federal Court of Australia Act 1976. In addition Cumming and Nationwide were moving the Court for an order that the amended statement of claim be struck out.

2. On the facts of this proceeding, the relevant parts of s.65A of the Trade Practices Act provide that nothing in s.52 of that Act applies to a prescribed publication of matter by a prescribed information provider. The applicants do not dispute the facts that Nationwide is a prescribed information provider and that each of the articles containing the material complained of constitutes a prescribed publication of matter by a prescribed information provider. On these facts, it is clear that s.52 does not apply to the conduct by Nationwide upon which the claim under s.52 is based. Counsel for the applicants did not contend to the contrary. On these facts therefore, the Court answered "yes" to each of the questions set out earlier in these reasons.

3. It should be noted that no claim based on the Trade Practices Act was made against any of the respondents other than Nationwide. Accordingly, having regard to the answers given, the only claims remaining in this proceeding are the claims for damages for common law defamation and for defamation contrary to the Defamation Act; ("the State matters").

4. In support of their motions for an order that the proceeding be transferred to the Supreme Court of Tasmania, the respondents relied upon s.5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Commth.) and s.86A of the Trade Practices Act. Before turning to consider those provisions, consideration must be given to the basis of jurisdiction of the Federal Court to hear and determine the State matters which now form the subject matter of the proceeding.

5. Counsel for the applicants contended that the Federal Court had jurisdiction to hear and determine the State matters under its accrued jurisdiction. It is well established that in appropriate circumstances the Federal Court has jurisdiction to hear and determine what essentially are State matters under what is now described as its accrued jurisdiction. There is no need to outline the history of the development of the accrued jurisdiction or to state the basis of that accrued jurisdiction. It has been held that the claims based on Federal jurisdiction must have been brought genuinely and not be 'colourable' in the sense of being made for the improper purpose of fabricating jurisdiction; see for example Denpro Pty. Ltd. v Centrepoint Freeholds Pty. Ltd. (1983) 72 FLR 157 and Burgundy Royale Pty. Ltd. v Westpac Banking Corporation (1987) 18. FCR 212. Right from the beginning, it has been held that even though the claim based upon Federal jurisdiction failed, the Federal Court had jursidiction and power to make orders under its accrued jurisdiction; see Adamson v West Perth Football Club Inc. (1979) 39 FLR 199. It has been held that if the claim based upon Federal jurisdiction fails as the result of a separate question of law being determined before trial, nevertheless the Federal Court has jurisdiction to hear and determine the State matters under its accrued jurisdiction; see the Burgundy Royale case per Bowen C.J., Morling and Beaumont JJ at p 219. That principle, however, does not prevent the Court, in appropriate circumstances, from declining to exercise that jurisdiction.

6. In the present case, on the facts set out, there is a foundation for the view that the claim based upon s.52 of the Trade Practices Act was not a genuine claim. It was argued by counsel for the respondents that the application of s.65A of the Trade Practices Act to the facts of this case was so obvious that the Court should find that it was not a genuine case and that that claim was "'colourable' in the sense that (it was) made for the improper purpose of 'fabricating' jurisdiction" in the Federal Court; see the Burgundy Royale case at p 219. There is much force in this contention, but I do not propose to make any finding on it nor do I propose to exercise my discretion not to exercise the accrued jurisdiction. Attention is drawn, however, to a related matter.

7. As appears later in these reasons, the Federal Court has jurisdiction to hear the State matters by reason of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Tas.). Thus, in this proceeding, the Federal Court has statutory jurisdiction to hear and determine the proceeding. Where the Federal Court has such a statutory jurisdiction to hear and determine matters, it is a nice question whether there is any place for the existence of an accrued jurisdiction. The question need not be decided in this proceeding. The Federal Court proceeds on the basis that pursuant to its accrued jurisdiction, this Court has jurisdiction to hear and determine this application. It should be noted however that the accrued jurisdiction extends to parties as well as causes of action. No claim had been made under the Trade Practices Act against Cumming, Stevenson or Miles.

8. Insofar as the applicants' rely upon the accrued jurisdiction, the respondents move the Court pursuant to s.86A of the Trade Practices Act for an order transfering the proceeding to the Supreme Court of Tasmania. That section assumes the existence of a matter for determination under Division 1 or 1A of Part V of the Trade Practices Act. Section 52 of that Act comes within Division 1 of Part V. Under s.86A(1) the Court has power to transfer to the State court the matter arising under, in this case, s.52 of the Trade Practices Act. The Federal Court may also transfer to the same Court any other matter for determination in the proceeding. The Federal Court should not transfer to the State Court any matter unless it appears to the Federal Court that "it is otherwise in the interests of justice that the matter be determined by the other court". It has not been decided, as far as I know, that s.86A applies where there is no matter pending under the Trade Practices Act.

9. The respondents contend that normally claims for defamation are tried before a jury; that in a defamation case in the Supreme Court of Tasmania, any party may request a jury and the matter will be tried before a jury unless a Judge otherwise orders on specified grounds none of which apply to this proceeding; that in the Federal Court the normal mode of trial is by Judge alone, but that a Judge may direct a trial with a jury; see sections 39 and 40 of the Fedreal Court Act; Counsel referred to and relied upon Insurance Commissioner v Australian Associated Motor Insurers Ltd. (1982) 65 FLR 172 and Construction Industry Long Service Leave Board v Odco Pty. Ltd. (1988) ATPR 49,602. In the former case I refused to order that the trial be by jury where a claim for defamation was attached to a claim under s.52 of the Trade Practices Act even though both parties requested a jury. In the latter case Jenkinson J. ruled that:-
   

"... unless all parties declare themselves content to have the issues tried by a judge alone (he would) transfer to the Supreme Court of Victoria the matter for determination in this proceeding which arose under Div. 1 of Part V of the Trade Practices Act 1974 and also the other matters for determination in this proceeding."

To some extent, the decision was influenced by the practical difficulties of conducting a trial by jury in Melbourne arising from lack of facilities at the court room. These practical difficulties do not arise at Hobart.

1. In the present case, no party raised any question about the constitutional validity of the State cross-vesting legislation and I assume the validity of legislation. Relying on the Jurisdiction of Courts (Cross-vesting) Acts of 1987, I am satisfied the Federal Court has jurisdiction to hear and determine the claims made by the applicants in this proceeding. In the State cross-vesting legislation, a State matter is defined by s.3 to mean a matter in which the Supreme Court of the State has jurisdiction otherwise than by reason of a law of the Commonwealth or of another State. Thus, a State matter is a matter in which the Supreme Court of the State has jurisdiction. Sub-section 4(1) of the States cross-vesting legislation provides that:-
   

"The Federal Court has and may exercise original and appellate jurisdiction with respect to State matters."

Sub-section 4(3) provides:-

"The Supreme Court of another State or of a Territory has and may exercise original and appellate jurisdiction with respect to State matters".

1. The claims by the applicants in this proceeding for damages for common law defamation and defamation contrary to the Defamation Act are State matters and thus can be heard and determined by the Federal Court.

2. The respondents are moving the Court pursuant to sub-paragraphs 5(4)(a) and (b)(ii) and (iii) of the Jurisdiction of Courts (Cross-vesting) Act (Commth.) for an order that the Federal Court transfer this proceeding to the Supreme Court of Tasmania. The relevant parts of these sub-paragraphs are set out:-
   

"5(4) Where-

(a)a proceeding (in this sub-section referred to as the "relevant proceeding") is pending in the Federal Court ... (in this sub-section referred to as the "first court"); and

(b)it appears to the first court that-

(i) ...

(ii) having regard to-

(A) whether, in the opinion of the first court, apart from this Act and any law of a State relating to cross-vesting of jurisdiction, the relevant proceeding or a substantial part of the relevant proceeding would have been incapable of being instituted in the first court and capable of being instituted in the Supreme Court of a State or Territory.

(B) the extent to which, in the opinion of the first court, the matters for determination in the relevant proceeding are matters arising under or involving questions as to the application, interpretation or validity of a law of the State or Territory referred to in sub-sub-paragraph (A) and not within the jurisdiction of the first court apart from this Act and any law of a State relating to cross-vesting of jurisdiction; and

(C) the interests of justice, it is more appropriate that the relevant proceeding be determined by that Supreme Court; or

(iii)it is otherwise in the interests of justice that the relevant proceeding be determined by that Supreme Court of a State or Territory,

the first court shall transfer the relevant proceeding to that Supreme Court."

1. It should be noted that the Federal Court is required to transfer the relevant proceeding to the Supreme Court if the proceeding comes within either sub-paragraph (ii) or sub-paragraph (iii). These are true alternatives. Under (ii) the Court is required to transfer the proceeding to the State Court if, having regard to each of the matters set out in (A), (B) and (C), it appears to the Federal Court that it is more appropriate that the proceeding be determined by the Supreme Court. Under (iii) the Court is required to transfer the proceeding if it appears to the Federal Court that in the interests of justice that the proceeding be determined by the State Court. The phrase "the interests of justice" is not defined, nor is the same phrase defined where it is used in paragraphs 86A(2)(b) of the Trade Practices Act. In paragraph (ii) the words "having regard to" have the effect that in considering the application of the power conferred, the Court must take into account each of the matters specified in (A), (B) and (C) and give weight to each of them.

2. The matters remaining to be determined in this proceeding would, in themselves, have been incapable of being instituted in the Federal Court apart from State cross-vesting legislation. At the most, they came within the accrued jurisdiction of the Federal Court and it is in this respect that in an appropriate case, it may be necessary to determine whether, in applying sub-paragraph 5(4)(1)(b)(ii) of the Commonwealth cross-vesting legislation, the Federal Court should have regard to the nature of its accrued jurisdiction. For present purposes, I have regard to the nature of the claims to be determined as in themselves being incapable of being brought in the Federal Court apart from the accrued jurisdiction and apart from State cross-vesting legislation. I must have regard also to the interests of justice and then determine whether it appears to me that it is more appropriate that the proceeding be determined by the Supreme Court of Tasmania. Under sub-paragraph (iii) I am required to determine whether it appears to me that in the interests of justice the proceeding should be transferred to the Supreme Court of Tasmania.

3. In opposing the motions, counsel for the applicants referred to the facts that the claims related to matters that had occurred in a number of States as well as in the Australian Capital Territory, that the claims involved residents of different States, that some matters may need to be decided according to the different laws of the States and generally the Australia-wide nature of the claims as all supporting the view that in the interest of justice the claims should be heard and determined in the Federal Court. He relied upon the fact that the Aboriginal Centre was funded by the Commonwealth and the articles alleged misuse of Commonwealth moneys provided to support the Centre. He referred to the jurisdiction conferred upon the High Court by s.75 of the Constitution and the power to create federal courts to exercise federal jurisdiction under s.71 of the Constitution as supporting the view that the Federal Court should in the interest of justice hear and determine this proceeding. Reference was made also to s.76 of the Constitution. All these facts, he contended, supported the view that in the interests of justice the motions should be refused.

1. All these matters are considered but in my opinion do not overcome the interests of justice requirement contained in the Commonwealth cross-vesting legislation. That legislation is designed to remove difficulties from determining non-productive or sterile arguments in relation to jurisdiction. Reference is made to s.16 of the Commonwealth Act. This suggests that if the legislation is not applied in a practical and sensible way, its operation may be brought to an end. Under sub-section 5(7) the Federal Court, on its own motion, may exercise the power conferred by sub-section 5(4) irrespective of the wishes of the parties. It is important that the Federal Court does not use the State cross-vesting legislation to deprive State Supreme Courts of their traditional jurisdiction.

2. The substance of the contentions put on behalf of the applicants was:-
   

"The essential nature of the claim now being made is the operation of a complex set of laws of different States which involve residents of different States, which involve a corporation of a different State and the necessity for a tribunal to have to apply at least four separate sets of substantive law; to apply its mind and attention to issues of damages depending on the wideness of the publication of the material; to apply its mind to the effect, in some States of course, of the publication of that material with differing tests or steps or standards, depending on which law is to be applied. And which will have to deal with evidence which is only obtainable in different States. In other words, all of the evidence is not available in Tasmania but some exists in other parts and vice versa. And it becomes the classic case of the furtherance of the interests of justice for the Federal Court to pick up the various threads and applying them."

1. There was no material before the Court to suggest that the application would need to be heard at sittings in different States. Witnesses could be brought to Tasmania. The Supreme Court would be in as good a position to apply the laws of other States as the Federal Court would be to apply State laws.

2. On the material before the Court, it appeared to me, having regard to the matters set out in sub-paragraphs 5(4)(b)(ii)(A)(B) and (C) of the Commonwealth Cross-vesting Act that it was more appropriate in the interests of justice that the proceeding be determined by the Supreme Court of Tasmania. Further, it appeared to me that under sub-paragraph 5(4)(b)(iii) of that Act it was in the interests of justice that the proceeding be determined by the Supreme Court of Tasmania. Further, it appeared to me that under paragraph 86A(2)(b) of the Trade Practices Act, in the interests of justice the proceeding be determined by the Supreme Court of Tasmania.

3. In my opinion the proceeding comprises claims which traditionally have been heard and determined by State courts. Normally the claims for damages are tried before a jury and under the Rules of the Supreme Court of Tasmania, it appears that the respondents almost as of right would be entitled to a trial with a jury. The position is not so clear in the Federal Court. I agree with the views expressed by Jenkinson J. in the Odco case. In hearing the claims the amplitude of the jurisdiction of the Supreme Court of Tasmania would be as wide as that of the Federal Court conferred as it is by the State cross-vesting legislation. I could see no valid argument against making the order made.

4. In my opinion no question of onus arises in applications for an order transferring a matter to another Court. The Federal Court has power to so order on its own motion. I leave aside the case where a respondent makes an unmeritorious claim for a transfer which is refused. In such a case costs may be awarded against the respondent. An applicant has the right to bring a proceeding in the Court of his choice. Costs involved in obtaining an order transferring the proceeding to another court should be costs in the cause. An applicant should not be penalised by an order for costs where the proceedings are transferred. Essentially these costs should be costs in the cause. In the present case, I could see no reason why the applicant should pay the respondents costs of the motions.

5. All the outstanding matters will need to be determined by the Supreme Court of Tasmania.