Merrett v Marinakos - [2019] FCCA 541

FEDERAL CIRCUIT COURT OF AUSTRALIA

MERRETT v MARINAKOS & ANOR

[2019] FCCA 541

Catchwords:
DEFAMATION – Accrued jurisdiction – no valid associated claim before the court for determination.

PRIVACY – Jurisdiction – no power pursuant the Privacy Act to enliven civil penalty provisions in this court.

PRACTICE AND PROCEDURE – Venue transfer – circumstances – unwarranted.

PRACTICE AND PROCEDURE – Summary dismissal – application fundamentally flawed – misconceived – want of jurisdiction – abuse of process.

Legislation:

Federal Circuit Court of Australia Act 1999, ss 17A(2), 39(3)

Federal Circuit Court Rules 2001, sub‑rr 13.10(a) and (c)

Cases cited:

CFM17 v Minister for Immigration and Border Protection (2018) 331 FLR 249
Director of Consumer Affairs Victoria v Scully (No 2) [2011] VSC 239
Fencott v Muller (1983) 152 CLR 570
Flower & Hart v White Industries (Qld) Pty Ltd (1999) 87 FCR 134
Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc [2007] NSWSC 329

Kristler & Munson [2017] FCCA 499

McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717
Modra v Victoria (2012) 205 FCR 445
Saragas v Martinis [1976] 1 NSWLR 172
Stack v Coastal Securities (No 9) Pty Ltd (1983) 154 CLR 261
Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282
Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165
Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2) (1997) 18 WAR 190

Applicant:

ADELE MERRETT

First Respondent:

JANET MARINAKOS

Second Respondent:

CATHY SKINNER

File Number:

MLG 3259 of 2018

Judgment of:

His Honour Judge J D Wilson QC

Hearing date:

6 February 2019

Date of Last Submission:

6 February 2019

Delivered at:

Melbourne

Delivered on:

8 March 2019

REPRESENTATION

Applicant:

In person

Solicitors for the Applicant:

None

Counsel for the First Respondent:

Mr J Bayly

Solicitors for the First Respondent:

Victorian Government Solicitor’s Office

Counsel for the Second Respondent:

Mr J Bayly

Solicitors for the Second Respondent:

Victorian Government Solicitor’s Office

ORDERS

Pursuant to s 17A(2) of the Federal Circuit Court of Australia Act and sub‑rr 13.10(a) and (c) of the Federal Circuit Court Rules, the application filed on 30 October 2018 is summarily dismissed.
The applicant pay the respondents’ costs of the proceeding, to be taxed in default of agreement.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT MELBOURNE

MLG 3259 of 2018

ADELE MERRETT

Applicant

And

JANET MARINAKOS

First Respondent

And

CATHY SKINNER

Second Respondent

REASONS FOR JUDGMENT

Introduction

By application filed on 30 October 2018 to commence this proceeding, Adele Merrett advanced a claim under the civil penalty provisions of the Privacy Act as well as relief under the Defamation Act. The applicant sought $420 000 in respect of the relief under the Privacy Act and $1 000 000 “for constructive fraud” together with such other damages as the court considered appropriate.
The respondents did not file a response to the initiating application. Instead, by application in a case filed 5 February 2019 the respondents sought…

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 Merrett v Marinakos

Details

AGLC: Merrett v Marinakos [2019] FCCA 541
Case: [2019] FCCA 541
Decision Date: 8 March 2019

CaseChat Overview and Summary

Merrett v Marinakos concerned a defamation claim brought by the plaintiff, Merrett, against the defendant, Marinakos. The dispute arose from alleged defamatory statements made by the defendant. The matter was heard in the County Court of Victoria.

The primary legal issues before the court were whether it possessed accrued jurisdiction to hear the plaintiff's claim, given the absence of a valid associated claim, and whether it had the power under the *Privacy Act 1988* (Cth) to enforce civil penalty provisions. The court also considered an application for venue transfer and an application for summary dismissal of the proceedings.

His Honour Judge J D Wilson QC found that the plaintiff's claim was fundamentally flawed and misconceived, lacking jurisdiction. The court determined that there was no valid associated claim before it to enliven accrued jurisdiction. Furthermore, the court held that it lacked the power under the *Privacy Act* to enforce civil penalty provisions. Consequently, the application for venue transfer was deemed unwarranted, and the application for summary dismissal was granted on the basis of want of jurisdiction and abuse of process.

Orders