Mount v Dover Castle Metals Pty Ltd

Case [2021] FCA 1356

FEDERAL COURT OF AUSTRALIA

Mount v Dover Castle Metals Pty Ltd [2021] FCA 1356

File number(s): NSD 962 of 2021
Judgment of: BROMWICH J
Date of judgment: 16 November 2021
Catchwords: DISCOVERY – application for preliminary discovery under rr 7.22 and 7.23 of the Federal Court Rules 2011 (Cth) – where seeking discovery to determine whether to commence defamation proceedings – whether reasonable belief rather than suspicion that defamation occurred – whether publication occurred so as to create jurisdiction – whether matter could be heard in conjunction with the existing Fair Work Act proceeding so as to create jurisdiction – held: for all but one of the prospective respondents, no reasonable belief existed – held: no jurisdiction demonstrated to be likely – application dismissed with costs
Legislation:

Corporations Act 2001 (Cth) s 1317AC

Federal Court of Australia Rules 2011 (Cth) rr 7.22, 7.23

Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) s 9(3)

Cases cited:

Apache Northwest Pty Ltd v Newcrest Mining Ltd [2009] FCAFC 39 182 FCR 124

Bleyer v Google Inc [2014] NSWSC 897; (2014) 88 NSWLR 670

Crosby v Kelly [2012] FCAFC 96; (2012) 203 FCR 451

Lin v Google [2021] FCA 1113

Mulley v Hayes [2021] FCA 1111

Oliver v Nine Network [2019] FCA 583

Pfizer Ireland Pharmaceuticals v Samsung Bioepis AU Pty Ltd [2017] FCAFC 193; 257 FCR 62

Poole v Australian Pacific Touring Pty Ltd [2017] FCA 424

Rana v Google Inc [2017] FCAFC 156; (2017) 254 FCR 1

Urbanchich v Drummoyne Municipal Council [1991] Aust Torts Rep 81-127
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 22
Date of hearing: 16 November 2021
Counsel for the Applicant: M White SC
Solicitor for the Applicant: Batch Mewing Lawyers
Counsel for the Prospective First, Second, Third and Fourth Respondents: G Fredericks
Solicitor for the Prospective First, Second, Third and Fourth Respondents: Paul Almond Employment Pty Ltd
Counsel for the Prospective Fifth, Eighth, Ninth and Tenth Respondents: M Keene
Solicitor for the Prospective Fifth, Eighth, Ninth and Tenth Respondents: Harris Friedman Lawyers

ORDERS

NSD 962 of 2021
BETWEEN:

RYAN MOUNT

Applicant
AND:

DOVER CASTLE METALS PTY LTD

First Respondent

GEORGE TUCKER

Second Respondent

SIMON TRIPP (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

BROMWICH J

DATE OF ORDER:

16 NOVEMBER 2021

THE COURT ORDERS THAT:

1.The originating application be dismissed with costs.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.


REASONS FOR JUDGMENT
Revised from Transcript

BROMWICH J:

  1. This is an application for preliminary discovery under rr 7.22 and 7.23 of the Federal Court of Australia Rules 2011 (Cth) in aid of deciding whether to bring a defamation proceeding.  The prospective applicant, Mr Ryan Mount, was, in the period from 18 March 2021 until 6 April 2021, or perhaps until 10 April 2021, in a contractual relationship with the first prospective respondent, Dover Castle Metals Pty Ltd, until he was advised that his…

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Details
AGLC
Mount v Dover Castle Metals Pty Ltd [2021] FCA 1356
Case
[2021] FCA 1356
Decision Date

CaseChat Overview and Summary

Mount sought an order for preliminary discovery against Dover Castle Metals and several of its employees, seeking documents that would assist in determining whether to commence defamation proceedings. The application was brought under the Federal Court's inherent jurisdiction, exercising the court's discretion under the Federal Court Rules 2011 to order discovery in specific circumstances. The applicant needed to demonstrate a reasonable belief that defamation had occurred and that the Federal Court had jurisdiction. The respondents argued that the application was an abuse of process and that the applicant did not have a reasonable belief of defamation, with no publication occurring. Additionally, the respondents contended that the application could not be heard in conjunction with the existing Fair Work Act proceeding.

The court examined whether the applicant had a reasonable belief that defamation had occurred, which was necessary to meet the criteria for preliminary discovery. The applicant had to demonstrate more than a mere suspicion, and the court found that this was not met for all but one of the prospective respondents. The court also considered whether the Federal Court had jurisdiction, which required the existence of a publication that created the defamation. The applicant did not provide sufficient evidence to demonstrate that publication had occurred, and therefore, the court held that jurisdiction was not demonstrated to be likely. The court noted that it was not appropriate to hear the application in conjunction with the existing Fair Work Act proceeding.

The application was dismissed with costs. The court found that the applicant had not met the necessary threshold to proceed with preliminary discovery, as it had not demonstrated a reasonable belief of defamation or established the court's jurisdiction. The court's order was entered in accordance with Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The originating application be dismissed with costs.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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