Merrett v Marinakos
[2019] FCCA 541
•8 March 2019
FEDERAL CIRCUIT COURT OF AUSTRALIA
| MERRETT v MARINAKOS & ANOR | [2019] FCCA 541 |
| Catchwords: 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 Kristler & Munson [2017] FCCA 499 McLaughlin v Dungowan Manly Pty Ltd (No 3) [2011] NSWSC 717 |
| 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 interlocutory relief dismissing the proceeding for want of jurisdiction. The respondents sought an order that the applicant pay their costs of the proceeding.
In essence, the respondents argued that the Federal Circuit Court of Australia has no jurisdiction to hear and determine applications under the Privacy Act and that it has no accrued jurisdiction to deal with the defamation and constructive fraud component or the equitable claim allegedly advanced in this proceeding.
Synopsis
For the reasons that follow, in my judgment the claims in this proceeding are not maintainable in the Federal Circuit Court of Australia. I dismiss this proceeding and order the applicant to pay the respondents’ costs.
Relevant factual narrative
In her application to commence this proceeding the applicant relied on seven grounds. They were not grounds, strictly speaking, but they provided a small glimmer of insight into the basis of the applicant’s claims. It is useful to set out those grounds in precise terms as follows (with errors in the original) –
1. That between 2014 to present date Janet Marinakos did breach my privacy and defame me to other parties which included numerous malicious false statements and reports intentionally designed to unduly influence others and damage my reputation including ostracising me within the Community, causing enormous psychological and emotional harm and distress, and ease set out grounds.”
2. That between 2014 to present date Cathy Skinner did breach my privacy and defame me causing severe emotional distress including ostracising me within the community by unduly influencing others with false statements in a malicious manner, and
3. That on 15.6.2018 I received further evidence from Ringwood Magistrates Court that Cathy Skinner had access to and use my private phone numbers and address of which I did not provide her as I do not know Cathy Skinner, and
4. That on 20.8.2018 I did receive from the Office of Public Prosecutions a criminally defaming letter Janet Marinakos had written in response to my complaint about Janet Marinakos’s discriminations, victimisations, harassments and multiple criminalities, and
5. Janet Marinakos and Cathy Skinner have pending charges to be heard in the Magistrates’ Court in April 2019 for pervert the course of, and obstruct justice and use the Courts for an improper purpose to deliberately cause further harm, trauma, loss and damage, and
6. As per Judgement of Honourable Judge Bender [Kristler & Munson [2017] FCCA 499] Dated [17 March 2017], and
7. Claim of breach of trust, wilful default, undue influence, constructive fraud, et al and seek relief and damages.
The applicant filed an affidavit she affirmed on 15 February 2019. It was a lengthy document with a very significant number of exhibits many of which were of dubious or no probative value. A large amount of the affidavit material was inadmissible. On that point, the High Court in Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd[1] strongly discouraged a trial judge such as me from uncritically receiving without objection inadmissible material prepared in an affidavit.
[1] (2004) 219 CLR 165
Certain statements made by the applicant in her affidavit were not strictly correct. Those included –
a)her contention in paragraph 7 that both parties (meaning respondents) failed to rebut her 19 October 2018 affidavit “which now stands as fact and law”;
b)her contention at paragraph 8 of her affidavit that both respondents had “acted ultra vires and as such became personally liable as a result”;
c)her contention in paragraph 10 of her affidavit that the State of Victoria, its agents, delegates and subordinates terrorised her children and committed war crimes against them, denied her access to education, severely interfered with and halted her children’s education and halted her son’s medical needs;
d)her assertion in paragraph 13 of her affidavit that she has “possibly two foot of evidence against the State of Victoria … who are all personally liable when they act outside of their legal authority and capacity …”;
e)her assertion in paragraph 15 of her affidavit that she was arrested and her mobile telephone was stolen;
f)her assertion in paragraph 23 of her affidavit that the first respondent in this case along with the Department of Education have refused to produce documents and such refusal constitutes a contempt of court as well as a destruction of documents under the provisions of the Crimes Act;
g)the assertion in paragraph 25 of her affidavit that the first respondent and others have conspired against her in respect to which she has “counterclaimed” (her word) under the Crimes Act;
h)the contention in paragraph 27 of her affidavit that the Privacy Commissioner’s response to her claims is not valid “as the State cannot invoke the provisions of its internal law for its failure to perform a treaty specifically with regards to breach of privacy …”;
i)her contention in paragraph 28 of her affidavit that there is no separation of power including the Privacy Commissioner and she seeks relief under international law;
m)her assertion in paragraph 29 of her affidavit that the State is and will continue to take advantage of her children and her by reason of her trauma;
n)her contention in paragraph 30 of her affidavit of the first respondent as principal of Chirnside Park Primary School had a duty to ensure that school level policies complied with departmental policies and the respondents had intentionally breached departmental policies as well as federal and state laws, rendering them personally liable;
o)her assertion in paragraph 31 of her affidavit that the second respondent as school council president on multiple occasions made false allegations and false reports, conspired to pervert the course of justice and interfered with witnesses;
p)her allegations in paragraph 32 of her affidavit that the respondents, over four years, “caused enormous and severe psychological distress, harm and damage” (her words) constituting “multiple breaches of privacy” (again, her words) attracting civil penalties of $340 000 for a first breach, $680 000 for a second breach and $1 700 000 for each breach thereafter;
q)her assertion in paragraph 33 of her affidavit that –
i)“the level of criminality inflicted upon [her] whole family … has been overwhelming”;
ii)her children are unsafe in her own home;
iii)her children and she remain at an unacceptable level of risk of harm of further retaliations; and
iv)the respondents have enjoyed inflicting “this torture” (her words) upon the applicant and her family;
r)the assertion in paragraph 34 of her affidavit that a person called Ms Tamsin Derix was intentionally sent to attack the applicant’s son and her; and
s)the assertion in paragraph 35 of her affidavit that “the Victorian Department of Education is an extremely dangerous institution subjecting many vulnerable children and their families to unacceptable unimaginable practices of gross negligence under the watchful eye of Minister Merlino” (her words).
At once it will be apparent that the applicant did not use the process of adducing evidence in affidavit form in its intended manner by setting out factual matters. Instead, she used the affidavit procedure to catalogue a seemingly endless array of personal grievances dressed up as provisions of fact or law without providing the factual basis for those assertions. That conduct represents an abuse of the process of the court. Several authorities may be called in aid to support that conclusion, including Flower & Hart v White Industries (Qld) Pty Ltd,[2] Saragas v Martinis,[3] Modra v Victoria,[4] Unioil International Pty Ltd v Deloitte Touche Tohmatsu (No 2),[5] McLaughlin v Dungowan Manly Pty Ltd (No 3),[6] Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys,[7] Director of Consumer Affairs Victoria v Scully (No 2)[8] and Kinda Kapers Charlestown Pty Ltd v Newcastle Neptunes Underwater Club Inc.[9]
[2] (1999) 87 FCR 134
[3] [1976] 1 NSWLR 172
[4] (2012) 205 FCR 445
[5] (1997) 18 WAR 190
[6] [2011] NSWSC 717
[7] [2012] FCA 282
[8] [2011] VSC 239
[9] [2007] NSWSC 329
Very many other authorities exist to like effect.
To the applicant’s affidavit made 15 February 2019 the applicant exhibited a collection of documents many of which were contentious, argumentative and in some instances scandalous, self‑serving or of dubious or zero probative value. Among them were –
a)an alleged notice to admit containing ill‑informed assertions purportedly of law, especially of international treaties;
b)a chronology;
c)a copy email dated 2 February 2015 in which the applicant purported to record events that commenced from 22 October 2014;
d)a copy email from the first respondent dated 18 February 2015;
e)correspondence dated 18 March 2015 from the regional director of the Department of Education and Training to the applicant;
f)private diary entries;
g)correspondence of an increasingly rude level emanating from the applicant to the first respondent;
h)snapshots of Facebook postings between the applicant and the second respondent;
i)other snapshots of other Facebook postings between the applicant and other school parents, the contents of which can only be described as classless, vulgar and despicable;
j)a copy of correspondence from the Victoria Police to the applicant dated April 2017;
k)intervention orders variously dated in early 2016 and 2017 sought by the first respondent against the applicant; and
l)freedom of information correspondence dated December 2015 refusing the applicant access to certain federal documentation.
Importantly, nowhere in that material was a determination by the Privacy Commissioner.
Against that backdrop the respondent brought an application for dismissal of this proceeding.
As mentioned earlier in this reasons, in my view this proceeding should be dismissed.
Privacy Act
The applicant sought orders in the nature of civil penalties under the Privacy Act. The respondents said this court had no jurisdiction under the Privacy Act. For reasons I will now explain, this court does in fact have certain powers under the Privacy Act but no powers concerning civil penalties.
The Federal Circuit Court of Australia has power under the Privacy Act to enforce determinations of the Privacy Commissioner as well as private sector adjudications. The Federal Circuit Court of Australia does not have power to deal with civil penalty applications. To the extent that the applicant seeks to enliven the civil penalty provisions of the Privacy Act in this case, this proceeding is incompetent.
While the Federal Circuit Court of Australia has power to transfer a proceeding commenced in it to the Federal Court of Australia, that power is seriously circumscribed by s 39(3) of the Federal Circuit Court of Australia Act, a matter considered by me in CFM17 v Minister for Immigration and Border Protection.[10] Circumstances warranting such a transfer are not engaged in this case.
[10] (2018) 331 FLR 249
Defamation
This court has accrued jurisdiction to deal with claims that are associated with claims validly within its jurisdiction. The High Court pronounced on the accrued jurisdiction of the Federal Court in largely similar terms in Fencott v Muller[11] and in Stack v Coastal Securities (No 9) Pty Ltd.[12] In this case, the Federal Circuit Court of Australia does not have power to determine defamation litigation. Whether or not a defamation claim is part of this court’s accrued jurisdiction need not be considered as there is presently no valid claim falling for this court’s consideration in this litigation. It follows that there is no valid claim on foot in this case to which anything can be appended or accrued, in particular a defamation proceeding as the applicant wished to agitate.
[11] (1983) 152 CLR 570
[12] (1983) 154 CLR 261
This litigation is fundamentally flawed. It is wholly misconceived. It smacks of an abuse of the court process. It should be stopped in its tracks immediately. I hereby make such an order. I order the applicant to pay the respondents’ costs.
I certify that the preceding eighteen (18) paragraphs are a true copy of the reasons for judgment of his Honour Judge J D Wilson QC
Date: 8 March 2019
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