Raghubir v Nicolopoulos

Case [2022] FCAFC 97

FEDERAL COURT OF AUSTRALIA

Raghubir v Nicolopoulos [2022] FCAFC 97

Appeal from: Raghubir v Nicolopoulos [2021] FCA 1073
File number(s): NSD 1021 of 2021
Judgment of: ALLSOP CJ, KENNY AND JAGOT JJ
Date of judgment: 3 June 2022
Catchwords: HIGH COURT AND FEDERAL COURT – appeal from single judge of the Federal Court – whether the Federal Court has jurisdiction to hear the appellants’ defamation claim – alleged defamatory publications made only within New South Wales – first respondent resident of New South Wales – other respondents being incorporated pursuant to the Strata Schemes Management Act 2015 (NSW) – whether service within Australia but outside the Australian Capital Territory sufficient to enliven jurisdiction for in personam actions – appeal dismissed
Legislation:

Constitution, s 122

Corporations Act 2001 (Cth), s 5F(2)

Federal Court of Australia Act 1976 (Cth), ss 18, 19(1)

Judiciary Act 1903 (Cth), s 39B(1A)

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

Service and Execution of Process Act 1901 (Cth), ss 4, 11 (repealed)

Service and Execution of Process Act 1992 (Cth), ss 12, 15

Federal Court Rules 2001 (Cth)

Civil Law (Wrongs) Act 2002 (ACT), s 123

Defamation Act 2005 (NSW)

Jurisdiction of Courts (Cross-vesting) Act 1993 (ACT), s 4(1)

Strata Schemes Management Act 2015 (NSW), ss 8, 11–13

Supreme Court Act 1933 (ACT), s 20

Civil Procedure Rules 2006 (ACT), r 6430

Supreme Court Rules 1937 (ACT), Order 3, r 4 (repealed)
Cases cited:

Citta Hobart Pty Ltd v Cawthorn [2022] HCA 16

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

Cotter v Workman (1972) 20 FLR 318

Dawson v Baker (1994) 120 ACTR 11

Dow Jones & Co Inc v Gutnick [2002] HCA 56; 210 CLR 575

Gosper v Sawyer [1985] HCA 19; 160 CLR 548

Johnston v Road and Traffic Authority (NSW) [1999] ACTSC 140; 30 MVR 212

Kontis v Barlin (1993) 115 ACTR 11

Oliver v Nine Network Australia Pty Ltd [2019] FCA 583

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

Renuka Raghubir v Christine Nicolopoulos [2022] NSWSC 386

Swanson v Harley (1995) 103 NTR 25

Thomson Australian Holdings Pty Ltd v Trade Practices Commission [1981] HCA 48; 148 CLR 150

White Enhancements Pty Ltd v Quick Fit Tyre Service Pty Ltd [2008] ACTSC 122; 221 FLR 409

Woodham v Lander [2004] ACTSC 34; 192 FLR 1
Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 43
Date of hearing: 17 May 2022
Counsel for the Appellants: The appellants appeared in person
Counsel for the First Respondent: Ms Karen Conte-Mills
Solicitor for the First Respondent: Harb Lawyers
Counsel for Second, Third, Fourth, Fifth, Sixth and Seventh Respondents: The second, third, fourth, fifth, sixth and seventh respondents did not appear
Amicus curiae: Mr Richard Lancaster SC

ORDERS

NSD 1021 of 2021
BETWEEN:

RENUKA RAGHUBIR

First Appellant

VIRENDRA SINGH

Second Appellant
AND:

CHRISTINE NICOLOPOULOS

First Respondent

STRATA MANAGER SP7526

Second Respondent

STRATA TREASURER SP7526

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Details
AGLC
Raghubir v Nicolopoulos [2022] FCAFC 97
Case
[2022] FCAFC 97
Decision Date

CaseChat Overview and Summary

The appeal before the Court involved Raghubir and others (the appellants) against Nicolopoulos and others (the respondents). The appellants sought to sue the respondents for defamation, alleging that certain publications made within New South Wales were defamatory. The first respondent was a resident of New South Wales, while the other respondents were incorporated bodies pursuant to the Strata Schemes Management Act 2015 (NSW). The primary question before the Court was whether the Federal Court had jurisdiction to hear the appellants’ claim, specifically whether service within Australia but outside the Australian Capital Territory was sufficient to enliven jurisdiction for in personam actions.

The central legal issue was whether the Federal Court had the requisite jurisdiction to hear the defamation claim, given that the alleged defamatory publications were made within New South Wales and the first respondent was a resident of that state. The appellants argued that the Federal Court had jurisdiction under section 39B(1) of the Judiciary Act 1903 (Cth), which confers original jurisdiction on the Federal Court. The respondents contended that the Court lacked jurisdiction because the appellants had not served the first respondent within the Australian Capital Territory, as required by section 32(1) of the Judiciary Act. The Court needed to determine whether the exceptions under section 39B(2) of the Judiciary Act applied to allow service outside the Australian Capital Territory.

The Court held that the Federal Court did not have jurisdiction to hear the appellants’ defamation claim. The Court found that the exceptions under section 39B(2) of the Judiciary Act did not apply, as the alleged defamatory publications were made within New South Wales, and the first respondent was a resident of that state. The Court concluded that service within Australia but outside the Australian Capital Territory was not sufficient to enliven the Court's jurisdiction for in personam actions. Consequently, the appeal was dismissed, and the appellants were ordered to pay the first respondent’s costs of the appeal.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the first respondent’s costs of the appeal.

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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