Legal Research
Cases
Mansell v Cumming

Mansell v Cumming

Case [1989] FCA 117 4 April 1989

Jurisdiction

Appeal

Defamation

Trade Practices Act 1974

Civil Litigation & Procedure

Defamation Law

No judgment structure available for this case.

Type to search within this case.

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.

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."

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.
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…

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 Mansell v Cumming

Details

AGLC: Mansell, M. & Tasmanian Aboriginal Centre Inc. v. Cumming, F. & Nationwide News Pty Ltd & Ors [1989] FCA 117
Case: [1989] FCA 117
Decision Date: 04 APRIL 1989

CaseChat Overview and Summary

The dispute in Mansell v Cumming arose between the parties in relation to alleged defamatory statements made by the defendant, which were argued to be actionable both under the Trade Practices Act 1974 and the Defamation Act 1957 (Tas). The Federal Court was tasked with determining whether the case should be transferred to the Supreme Court of Tasmania, under the applicable cross-vesting legislation. The plaintiff sought to have the matter heard in the Federal Court, while the defendant argued for the proceedings to be transferred to the Supreme Court of Tasmania.

The central legal issue for the court was to decide the appropriate forum for the trial of the case, taking into account the cross-vesting legislation. The court was required to assess whether the Federal Court had the jurisdiction to hear the matter or whether it should be transferred to the Supreme Court of Tasmania. This involved examining the provisions of the cross-vesting legislation and the principles governing jurisdiction in such circumstances.

In reaching its decision, the court considered the principles and provisions of the cross-vesting legislation, which provides for the transfer of proceedings between federal and state courts. The court found that the Trade Practices Act claims did not fall within the exclusive jurisdiction of the Federal Court, as they could also be dealt with under state law. Additionally, the court determined that the defamation claim, which was subject to the Defamation Act 1957 (Tas), was not exclusively within the jurisdiction of the Federal Court. Therefore, the court concluded that the matter should be transferred to the Supreme Court of Tasmania, in accordance with the cross-vesting legislation.

The final orders of the court were that the proceedings be transferred to the Supreme Court of Tasmania, and that the plaintiff's application for leave to appeal be dismissed. The court also directed that the plaintiff bear the costs of the application.

Orders