Sarina & Anor v O'Shannassy - [2019] FCCA 732

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARINA & ANOR v O'SHANNASSY

[2019] FCCA 732

Catchwords:

COURTS AND JUDICIAL SYSTEM – Federal jurisdiction – proceeding commenced in Federal Circuit Court of Australia (Court) by two applicants alleging contraventions by respondent of s.18(1), s.20, and s.50 of the Australian Consumer Law (ACL), being Schedule 2 to the Competition and Consumer Act 2010 (Cth) (Act), and also asserting causes of action in defamation – Court has jurisdiction under s.138A of the Act in relation to any matter arising under the ACL subject to the limitation that it does not have jurisdiction to award an amount for loss or damage that exceeds $750,000 - applicants concede that causes of action based on alleged contraventions of the ACL have no reasonable prospects of success because the ACL applies as a law of the Commonwealth only to the conduct of corporations and the respondent is not a corporation – whether notwithstanding concession that claims based on the ACL have no reasonable prospects of success the Court has jurisdiction to determine causes of action based on defamation – whether the causes of action for defamation and those for contravention of the ACL arise out of a common substratum of facts such that the causes of action for defamation and the claims under the ACL form part of a single controversy – Court has jurisdiction to determine causes of action based on defamation.

PRACTICE AND PROCEDURE – DEFAMATION – application for leave to file amended statement of claim in the form of a proposed amended statement of claim – whether imputations pleaded in proposed amended statement of claim are reasonably capable of arising from the matter by which it is alleged the imputations were conveyed – all imputations capable of so arising but one of the proposed imputations not capable of bearing defamatory meaning – leave to file amended statement of claim granted in the form of the proposed amended statement of claim subject to a number of omissions.

PRACTICE AND PROCEDURE – whether applicants estopped from pursuing claims on the ground that they ought reasonably have raised them in earlier proceedings in the Local Court of New South Wales – not unreasonable for the applicants not to have raised claims in earlier proceedings.

Legislation:

Australian Constitution, ss.71, 75, 76, 77

Competition and Consumer Act 2010 (Cth), Schedule 2, ss.18(1), 20, 50, 131(1), 138A

Defamation Act 2005 (Cth), s.6(1)

Judiciary Act 1903 (Cth), ss.79, 80

Local Court Act 2007 (NSW), s.33(1)(b)

Cases cited:

Adeang v The Australian Broadcasting Corporation [2016] FCA 1200

Air Link Pty Ltd v Paterson (2005) 223 CLR 283

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37

Dow Jones & Company Inc v Gutnick (2002) 210 CLR 675

Fairfax Media Publications Pty Ltd v Bateman [2015] NSWCA 154

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52

Fencott v Muller (1983) 152 CLR 570

Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84

In re The Judiciary and…

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.

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Details

Case: [2019] FCCA 732
Decision Date: 29 March 2019

CaseChat Overview and Summary

In the Federal Circuit Court of Australia, Judge Manousaridis considered a dispute between two applicants and a respondent. The applicants alleged contraventions of sections 18(1), 20, and 50 of the Australian Consumer Law (ACL), as well as causes of action in defamation. The Court's jurisdiction in relation to ACL matters was limited to claims not exceeding $750,000 for loss or damage. The applicants conceded that their ACL claims had no reasonable prospects of success because the ACL, as a Commonwealth law, only applies to the conduct of corporations, and the respondent was not a corporation.

The central legal issues before the Court were whether, notwithstanding the concession regarding the ACL claims, it possessed jurisdiction to determine the defamation causes of action. This involved considering whether the defamation causes of action and the ACL contraventions arose from a common substratum of facts, thereby forming a single controversy over which the Court could exercise jurisdiction. Additionally, the Court had to determine whether the applicants should be estopped from pursuing their claims due to their failure to raise them in earlier proceedings in the Local Court of New South Wales.

The Court reasoned that it had jurisdiction to determine the defamation causes of action. It found that the defamation claims and the ACL claims did indeed arise from a common substratum of facts, constituting a single controversy. The Court also determined that it was not unreasonable for the applicants to have omitted raising these claims in the earlier Local Court proceedings, thus rejecting the estoppel argument. Furthermore, the Court considered an application for leave to file an amended statement of claim in defamation. It found that all but one of the imputations pleaded were reasonably capable of arising from the material in question and that one proposed imputation was not capable of bearing a defamatory meaning.

Consequently, the Court granted leave to file the amended statement of claim, subject to the omission of the imputation that was not capable of bearing a defamatory meaning.

Orders