FEDERAL COURT OF AUSTRALIA
Massarani v Kriz [2022] FCA 80
File number: NSD 1193 of 2020 Judgment of: KATZMANN J Date of judgment: 9 February 2022 Catchwords: PRACTICE AND PROCEDURE — defamation action against three respondents — interlocutory applications for summary dismissal, permanent stay or strike out of applicant’s pleading — whether Court has jurisdiction — whether leave required under s 23 of the Defamation Act 2005 (NSW) to commence the proceeding against the first respondent — whether the matter complained of is the “same or like matter” as publications the subject of a previous defamation suit in which the first respondent had been sued and which had been summarily dismissed — whether the proceeding an abuse of process — whether the proceeding was commenced or continued for an improper purpose — whether the time and costs necessary to prosecute the proceeding is out of all proportion to the benefit the applicant would derive from it — whether the proceeding is statute-barred — whether the third respondent has defence of innocent dissemination — whether the amended statement of claim discloses a reasonably arguable cause of action Legislation: Evidence Act 1995 (Cth) s 126K
Federal Court of Australia Act 1976 (Cth) s 31A
Federal Court Rules 2011 (Cth) rr 1.40, 16.02, 16.08, 16.21, 26.01
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)
Civil Law (Wrongs) Act 2002 (ACT) s 123
Defamation Act 2005 (NSW) ss 6(2), 11, 23, 32
Interpretation Act 1987 (NSW) s 36
Limitation Act 1969 (NSW) ss 14, 14B(1), 56A, 56D, 63, 68A
Explanatory Note to the Defamation Amendment Bill 2005
Cases cited: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212
Carey v Australian Broadcasting Corporation (2012) 84 NSWLR 90
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; 392 ALR 540; 95 ALJR 767
Federal Treasury Enterprise (FKP) Sojuzplodoimport v Spirits International B.V. [2021] FCAFC 77; 389 ALR 612; 159 IPR 58
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Herron v HarperCollins Publishers Australia Pty Ltd [2018] FCA 1495
Hockey v Fairfax Media Publications Pty Ltd (No 2) (2015) 237 FCR 127
Hopper v Egg and Egg Pulp Marketing Board (Vict) (1939) 61 CLR 665
Continue reading Massarani v Kriz
Sign in free to access the full text
Details
- AGLC
- Massarani v Kriz [2022] FCA 80
- Case
- [2022] FCA 80
- Decision Date
CaseChat Overview and Summary
In Massarani v Kriz, the plaintiff, Mr Massarani, sought to pursue a defamation action against three respondents. The dispute involved allegations of defamation stemming from publications that identified Mr Massarani as an alleged malefactor in connection with certain extrinsic facts. The respondents sought to have the defamation action dismissed on various grounds, including the argument that the matter was an abuse of process and statute-barred. The court had to determine whether it had jurisdiction to hear the case, whether leave was required to commence the proceeding against the first respondent, and if the amended statement of claim disclosed a reasonably arguable cause of action.
The court considered several legal issues, including whether the Court had jurisdiction, whether leave was required under s 23 of the Defamation Act 2005 (NSW) to commence the proceeding against the first respondent, whether the matter complained of was the “same or like matter” as publications the subject of a previous defamation suit, whether the proceeding was an abuse of process, whether the proceeding was commenced or continued for an improper purpose, whether the time and costs necessary to prosecute the proceeding were out of all proportion to the benefit Mr Massarani would derive from it, whether the proceeding was statute-barred, whether the third respondent had a defence of innocent dissemination, and whether the amended statement of claim disclosed a reasonably arguable cause of action.
The court found that the matter complained of at least had the capacity or tendency to damage Mr Massarani’s reputation to anyone who identified him as the assailant. The court held that the question of whether such a person already had an adverse view of Mr Massarani was a triable issue and not properly a question for determination on an application for summary judgment. The court rejected the interlocutory applications and dismissed the proceedings with costs. The court also found that the “vexatious proceedings order” sought by the respondents should not be made.
The court made orders dismissing the interlocutory applications filed by the respondents, ordering the respondents to pay the applicant’s costs of the interlocutory applications, and listing the matter for case management. The court's decision clarified the legal standards for defamation actions and the criteria for granting interlocutory applications in such cases.
The court considered several legal issues, including whether the Court had jurisdiction, whether leave was required under s 23 of the Defamation Act 2005 (NSW) to commence the proceeding against the first respondent, whether the matter complained of was the “same or like matter” as publications the subject of a previous defamation suit, whether the proceeding was an abuse of process, whether the proceeding was commenced or continued for an improper purpose, whether the time and costs necessary to prosecute the proceeding were out of all proportion to the benefit Mr Massarani would derive from it, whether the proceeding was statute-barred, whether the third respondent had a defence of innocent dissemination, and whether the amended statement of claim disclosed a reasonably arguable cause of action.
The court found that the matter complained of at least had the capacity or tendency to damage Mr Massarani’s reputation to anyone who identified him as the assailant. The court held that the question of whether such a person already had an adverse view of Mr Massarani was a triable issue and not properly a question for determination on an application for summary judgment. The court rejected the interlocutory applications and dismissed the proceedings with costs. The court also found that the “vexatious proceedings order” sought by the respondents should not be made.
The court made orders dismissing the interlocutory applications filed by the respondents, ordering the respondents to pay the applicant’s costs of the interlocutory applications, and listing the matter for case management. The court's decision clarified the legal standards for defamation actions and the criteria for granting interlocutory applications in such cases.
Orders
Orders of the court
1. The interlocutory applications filed on 1 December 2020 and 9 December 2020 be dismissed.
2. The respondents pay the applicant’s costs of the interlocutory applications.
3. The matter be listed for case management at 9.30am on 28 February 2022.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
The amended statement of claim alleges that the first five paragraphs of the matter complained of identified Mr Massarani as “the alleged malefactor” to any person who was already aware, or who later learned, of “the public record extrinsic facts” and “the quotidian extrinsic facts” (collectively, “the extrinsic facts”). The extrinsic facts are pleaded in paras 17–18:17At all times material to this proceeding since not later than 31 January 2019, the following facts (herein called “the public record extrinsic facts”) were matters of public record; namely –(a)the facts set forth in paragraph 6 of this pleading;(b)that [Mr Massarani] was the plaintiff in the District Court proceedings;(c)that [Ms Kriz] was the first defendant in the District Court proceedings;(d)that the District Court proceedings concerned the previous defamatory matter; and(e)that [Mr Massarani], as plaintiff in the District Court proceedings, claimed that he could be identified as the alleged malefactor, either:(i) from the contents of the previous defamatory matter; or(ii) by persons with knowledge of relevant extrinsic facts.18At all times material to this proceeding, the following facts (herein called “the quotidian extrinsic facts”) were widely known amongst persons who knew, or knew of, [Mr Massarani]; that is to say –(a) the facts set forth in paragraph 6 of this pleading [set out below];(b) that [Mr Massarani] was:(i)a political activist;(ii)an active member of the Australian Labor Party (herein called “the ALP”); and(iii)aligned with the Right faction within the ALP;(c)that, as a student at the University of Sydney and subsequently, [Mr Massarani] was:(i)active in student politics; and(ii)a member of the ALP-aligned club, Student Unity, since 2008;(d)the contents of the previous defamatory matter;(e)that the previous defamatory matter included allegations that the alleged malefactor was both:(i) a Senate Fellow; and(ii) a member of the Student Disciplinary Committee;(f)that there was widespread speculation and conjecture, especially amongst students at the University of Sydney and more particularly amongst those active or interested in student politics, regarding the identity of the alleged malefactor;(g)that such speculation and conjecture had narrowed down the range of persons suspected of being the alleged malefactor to a small group comprising no more than three persons (herein called “putative alleged malefactors”) who were:(i)male; and(ii)Senate Fellows; and(iii)members of the Student Disciplinary Committee;(h)that such speculation and conjecture further posited that, amongst the putative alleged malefactors, [Mr Massarani] was the most plausible possibility for being the alleged malefactor, on account of:(i)his age (as compared with the ages of the other putative alleged malefactors);(ii)his being unmarried and not in an ongoing relationship (as compared with the marital and relationship status of the other putative alleged malefactors); and(iii)the background circumstances set forth in the previous defamatory matter; and(i) from 2019, that [Mr Massarani]:(i)had commenced the District Court proceedings against the [Ms Kriz] in respect of the previous defamatory matter; and(ii)thereby identified himself as the alleged malefactor.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
I reject this submission, too. Objectively the matter complained of at least has the capacity or tendency to damage Mr Massarani’s reputation to anyone who identified him as the assailant. Whether or not any such person already had such an adverse view of Mr Massarani that the Ryan article could not have damaged him further is a triable issue. It is not properly a question for determination on an application for summary judgment. See, for example, Spencer at [24]–[25] (French CJ and Gummow J).Conclusion Both interlocutory applications should be dismissed with costs. It follows that the “vexatious proceedings order” sought by Ms Kriz and Ms Ryan should not be made.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.