HIGH COURT AND FEDERAL COURT – federal jurisdiction – defamation proceeding – width of principle in LNC Industries v BMW (Australia) Ltd (1983) 151 CLR 575 – the interpretation or application of an aspect of a Commonwealth law need not be in dispute for federal jurisdiction to exist – consideration of relevant principles – scope of the federal matter – whether assertion of jurisdiction is colourable – held jurisdiction of the Court properly invoked
DEFAMATION – jurisdiction of the Federal Court in defamation matters
TORTS – claim relating to the loss conjugal rights and loss of consortium not maintainable – novel action on the case existing independently of trespass, negligence and nuisance for damages by a person who suffers harm or loss as the inevitable consequence of the unlawful, intentional and positive acts of another held to be arguable – allegation of unlawfulness contrary to s 474.17 of the Criminal Code (Cth)
[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 Mulley v Hayes
Sign in free to access the full text
Details
AGLC
Mulley v Hayes [2021] FCA 1111
Case
[2021] FCA 1111
Decision Date
CaseChat Overview and Summary
In the case of Mulley v Hayes, the dispute involved the invocation of federal jurisdiction by the Federal Court of Australia in a defamation proceeding. The court was called upon to determine whether the assertion of jurisdiction was proper given the nature of the legal issues at stake.
The central legal issue before the court was whether the assertion of federal jurisdiction by the Federal Court was legitimate, particularly in light of the principles outlined in LNC Industries v BMW (Australia) Ltd (1983) 151 CLR 575. The court had to consider whether the interpretation or application of a Commonwealth law needed to be in dispute for federal jurisdiction to exist and whether the assertion of jurisdiction was colourable.
The court found that the jurisdiction of the Federal Court was properly invoked. It held that the interpretation or application of a Commonwealth law need not be in dispute for federal jurisdiction to exist, relying on established principles. The court emphasised that the existence of a federal matter was sufficient to characterise the claim, provided that the rights and liabilities under the Commonwealth law were central to the dispute. This decision aligned with previous cases where the court had upheld the jurisdiction in matters involving claims under federal laws, such as insurance contracts or claims against the Commonwealth.
The court further clarified that the assertion of jurisdiction was not colourable, as it was grounded in the substantive rights and liabilities created by Commonwealth law. The decision underscored the broad scope of federal jurisdiction in matters that involve the interpretation or application of Commonwealth laws, even if the specific dispute did not directly concern those laws. The court's reasoning provided a clear framework for determining the propriety of invoking federal jurisdiction in similar future cases.
The final orders of the court confirmed that the jurisdiction of the Federal Court had been properly invoked, and the respondent was ordered to pay the applicant’s costs of the hearing of the separate question. The proceeding was scheduled for a case management hearing at a specified time.
Orders
Orders of the court
1. The separate question identified by Order 1 of the orders made on 16 March 2021 be answered as follows:
Yes, the jurisdiction of the Federal Court of Australia has been properly invoked.
2. The respondent pay the applicant’s costs of the hearing of the separate question.
3. The proceeding be listed for a case management hearing at 2.15pm on 23 September 2021.
Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Thirdly, in PT Bayan Resources TBK v BCBC Singapore PTE Ltd [2015] HCA 36; (2015) 258 CLR 1, the High Court held that it was within the inherent power of the Supreme Court of Western Australia to make a freezing order in relation to an anticipated judgment of a foreign court which, when delivered, would be registrable by order of the Supreme Court under the Foreign Judgments Act 1991 (Cth). French CJ, Kiefel, Bell, Gageler and Gordon JJ (with whom Keane and Nettle JJ agreed) held (at 22 [55]):An application for a freezing order in relation to a prospective judgment of a foreign court, which when made would be registrable by order of the Supreme Court under the Foreign Judgments Act, is sufficiently characterised as a matter arising under a law of the Commonwealth on the basis that the prospective enforcement process to be protected by the making of the freezing order depends on the present existence of the Foreign Judgments Act.(Emphasis added). Fourthly, in CGU Insurance Ltd v Blakeley [2016] HCA 2; (2016) 259 CLR 339, claims brought by liquidators against CGU Insurance were identified as arising under a law of the Commonwealth. In doing so, French CJ, Kiefel, Bell and Keane JJ, referred specifically to the observation of Latham CJ in R v Commonwealth Court of Conciliation and Arbitration; Ex parte Barrett, stating (at 351–2 [29]):It is a particular application of that general statement to say that a matter will arise under a federal law if it involves a claim at common law or equity or under a law of a State where the claim is “in respect of a right or property which is the creation of federal law”. If the source of a defence to a claim at common law or equity or under a law of a State is a law of the Commonwealth, then on that account also the matter may be said to arise under federal law.(Footnotes omitted, emphasis added). Fifthly, in Sagacious Legal Pty Ltd v Wesfarmers General Insurance Ltd (No 4) [2010] FCA 482; (2010) 268 ALR 108, Rares J dealt with a claim for indemnity under a motor car insurance policy. His Honour referred (at 111–2 [6]) to the fact that the insured applicant pleaded a claim for interest under s 57 of the Insurance Contracts Act 1984 (Cth) asserting this enlivened the jurisdiction of this Court. However, Rares J noted (at 111–2 [5]–[6]) that jurisdiction was attracted well before the pleading, and the matter had been in federal jurisdiction since at least the time of the insurer’s refusal of indemnity because (referring to LNC Industries (at 581)) the claim involved rights and liabilities under a contract of insurance that owed their existence to a federal law, namely the Insurance Contracts Act: cf Agtrack (NT) Pty Ltd v Hatfield [2005] HCA 38; (2005) 223 CLR 251 (at 262–3 [29], [32] per Gleeson CJ, McHugh, Gummow, Hayne and Heydon JJ). Sixthly, in Buckee v Commonwealth of Australia [2014] FCA 242; (2014) 220 FCR 541, a different conclusion was reached by Barker J, notwithstanding that one of the arguments advanced to his Honour as to why federal jurisdiction was attracted involved, like in Sagacious Legal, a denial of indemnity under an insurance policy. Additionally, Barker J said (at 544 [24]) that a further “intriguing argument” was advanced as to why federal jurisdiction is attracted, which his Honour outlined (at 544–5 [26]): The argument is developed in the following way:· Section 64 of the Judiciary Act provides that in any suit in which the Commonwealth or a State is a party “the rights of parties shall as nearly as possible be the same, and judgment may be given and costs awarded on either side, as in a suit between subject and subject”.· This proceeding is a “suit” for the purposes of the Judiciary Act, as it is an “action or original proceeding between parties” as defined in s 2 of the Judiciary Act.· As explained in Bass v Permanent Trustee Company Limited [1999] HCA 9; (1999) 198 CLR 334, s 64 is of fundamental importance to understanding the juridical basis of an action maintained against the Crown. There it was said by the plurality that s 64 has an ambulatory operation so that it may extend rights in proceedings in which the Commonwealth or a State is a party by reference to subsequent legislation. It was also held that s 64 operates to apply substantive as well as procedural laws. It was accepted that it follows that s 64 may operate to confer a cause of action against the Commonwealth which would not have existed if s 64 had not equated the substantive rights of the parties to those in a suit between subject and subject.· Without s 64, Mr and Mrs Buckee and group members would have no right to agitate a cause against the Commonwealth. However, Commonwealth v Evans Deakin Industries Limited [1986] HCA 51; (1986) 161 CLR 254 rejected an argument that s 64 did not create a right and it is clear from that case that in every suit to which the Commonwealth is a party, s 64 requires the rights of the parties to be ascertained as nearly as possible by the same rules of the law, substantive and procedural, statutory and otherwise as would apply if the Commonwealth were a subject instead of being the Crown.· The position prior to the enactment of s 64 was explained in Baume v The Commonwealth (1906) 4 CLR 97 by O’Connor J by reference to the “temporary” statute that was replaced by s 64.· In British American Tobacco Australia Limited v Western Australia [2003] HCA 47; (2003) 217 CLR 30 at [72], McHugh, Gummow and Hayne JJ (with whom Callinan J concurred) observed that the remark of O’Connor J in Baume emphasised the importance of s 64 in the structure of federal jurisdiction “which provided for species of litigation unknown at common law and in the Colonies before federation”.· Without s 64, any subject would need to call in aid the ancient procedure of the petition of right.· It follows that this action against the Commonwealth, being a species of litigation unknown at common law, arises under a law made by the Parliament, namely, s 64.