Sharples v Hanson

[2006] FCA 387

FEDERAL COURT OF AUSTRALIA

Sharples v Hanson & Ors [2006] FCA 387

CATCHWORDS

JURISDICTION - associated jurisdiction of the Federal Court - whether claim in defamation associated with claims in the Federal Court falls with the Court’s associated jurisdiction

DEFAMATION – statute barred proceedings - application to amend pleadings – failure of applicant to lodge claim in time – whether just to grant an extension to institute proceedings

DECLARATIONS – whether utility in making declarations

Federal Court of Australia Act 1976 (Cth) ss 32, 21
Federal Court Rules O 13
Limitation of Actions Act 1974 (Qld) s 10(1)(a)

Fencott v Muller (1983) 152 CLR 570 applied
Re Wakim; Ex parte McNallyand Another (1999) 198 CLR 511 considered
Global Sportsman Pty Ltd & anor v Mirror Newspapers Ltd & anor (‘Global Sportman’) (1984) 55 ALR 25 considered
Lloyd’s Ships v Davros (1987) 72 ALR 643 considered
Warramunda Village Inc v Pryde [2001] FCA 61 applied

No QUD 390 of 2005

SPENDER J
7 APRIL 2006
BRISBANE

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	QUD 390 OF 2005

JUDGE:	SPENDER J
DATE OF ORDER:	7 APRIL 2006
WHERE MADE:	BRISBANE

THE COURT ORDERS THAT:

1The Notice of Motion by the applicant seeking that the ‘Time for issuing of these proceedings be extended if required by law until…….. 2 October 2005’ be dismissed.

2The relief claimed in par [2] of the applicant’s Notice of Motion filed 11 November 2005, namely, ‘That leave be granted for further amended pleadings after the examination of the First and Second Respondents in relation to the description of persons concerned with the printing, production and publication of the newspaper known as the catalyst’ be refused.

3On the Notice of Motion by the First and Second Respondents, the applicant’s application and statement of claim be struck out as statute barred.

4The applicant in the principal proceedings should pay the costs of the first and second respondents of the two Notices of Motion, to be taxed if not agreed.

IN THE FEDERAL COURT OF AUSTRALIA
DISTRICT REGISTRY	QUD 390 OF 2005

BETWEEN:	TERRY PATRICK SHARPLES
AND:	ADAM MARK HANSON FIRST RESPONDENT
AND:	PAULINE LEE HANSON SECOND RESPONDENT
AND:	LEONNARD WILLIAM HARRIS THIRD RESPONDENT
AND:	ROSS BENSTEAD FOURTH RESPONDENT
AND:	CATALYST NEWSPAPER PTY LTD (CAN 088 944 218) FIFTH RESPONDENT

JUDGE:	SPENDER J
DATE:	7 APRIL 2006
PLACE:	BRISBANE

REASONS FOR JUDGMENT

5I am presently concerned with two Notions of Motion before the Court, one by the first and second respondents (‘the respondents’), and one by the applicant, which relate to an application filed on 3 October 2005 by Terry Patrick Sharples (‘the applicant’), seeking various forms of relief against various respondents, being persons connected with the political party known as Pauline Hanson’s One Nation. 

6On 8 November 2005, the first and second respondents filed a Notice of Motion, seeking, inter alia, that the applicant’s Application and Statement of Claim be struck out, as being statute barred.  The respondents also seek to have the claims for declarations struck out, on the basis, that there is no utility in making such declarations.  On 14 November the applicant filed a Notice of Motion seeking, amongst other things:

‘1. That time for issuing of these proceedings be extended, if required by law, until the date of issue of the application and statement of claim by the applicant dated 2 October 2005.
2. That leave be granted to further amend pleadings, after examination of the first and second respondents in relation to the description of persons concerned with the printing production and publication of the newspaper know as the [C]atalyst.’

7The applicant, who is self-represented, in the principal proceedings, seeks various claims for relief, for damages and declarations.  He applies to the Court for damages for defamation pursuant to the Defamation Act 1889 (Qld), for breach of s52(1) of the Trade Practices Act 1974 (Cth), a compensation order pursuant to s1317H of the Corporations Act 2001 (Cth), for breach of the civil penalty provisions s232(2), (4) and (6) pursuant to the Corporations Law 1999, for conspiracy to injure at common law, together with various ancillary declarations and orders. 

8The applicant alleges:

‘8 That between 19 August 1999 and 30 September 1999 [and in the proposed Amended Statement of Claim, (which I will return to later), from 19 August 1999 to 30 November 1999), the … respondents… did agree and conspire with each other and other persons unknown to the applicant to injure to the applicant by unlawful means and to commit offences against the laws of the Commonwealth and the state of Queensland and to wit to defame and injure the applicant in the conduct of his business. So to conspire would constitute an offences under s29D of the Crimes Act 1914 pursuant to s11.5 of the Criminal Code 1995 (Cth), s543(1)(b)(d)(f) of the Criminal Code Act 1899 (Qld), (Cth); for which, if convicted the said respondents’ would be liable to be imprisoned.

Similar allegations were repeated in the next paragraph, concluding ‘and to wit defraud the applicant and injure his economic well being ss52, 75B91(d) and 79(10)(e) of the Trade Practices Act 1974, for which, if convicted the said respondents’ would be liable to be imprisoned.’

9The applicant claims that at all material times he conducted himself in the business as a public accountant under his own name at Burleigh Heads in Queensland.

10The Statement of Claim continues that between the same dates, and at the same places, the same parties did proceed to implement those arrangements or understandings by writing, printing and causing to be published a document titled ‘The Catalyst’ Volume 1 Issue 1.  The Statement of Claim refers to a story on the front page of that publication, which had the headline ‘Sharples Money Trail Leads to Senior Liberal’. 

11The story asserted that there was an agreement by Tony Abbott, a Minister in the Federal Government, to fund an action which the applicant took in the Supreme Court of Queensland, relating to the validity of the registration of One Nation as a political party in Queensland, and further asserted that the applicant wrote to Mr Abbott, which letter, amongst other things, said ‘Attached is a list of moneys I have expended on the cause and your personal cheque by return mail is requested in satisfaction thereof.’ 

12The article further said ‘This astounding hard evidence shows to what extent Abbott and the Liberal Party will go to force One Nation and Pauline Hanson out of politics.  They have a lot to lose.’

13The applicant alleges he ‘has been injured in his personal and professional reputation and otherwise dammed’.  He ‘has suffered economic loss’ alleging a minimum of $700,000 and ‘special damages’ alleging a minimum of $70,000. 

14It is necessary to consider the jurisdiction of this Court in a claim for defamation, brought under the Defamation Act 1889 (Qld).

15The Federal Court of Australia Act 1976 (Cth), s 32 provides:

‘32 Jurisdiction in associated matters

(1)To the extent that the Constitution permits, jurisdiction is conferred on the Court in respect of matters not otherwise within its jurisdiction that are associated with matters in which the jurisdiction of the Court is invoked.

(2)The jurisdiction conferred by subsection (1) extends to jurisdiction to hear and determine an appeal from a judgment of a court so far as it relates to a matter that is associated with a matter in respect of which an appeal from that judgment, or another judgment of that court, is brought’.

16Under s 32, this Court is empowered to determine the applicant’s claim in defamation, if it is associated with a matter or matters that fall within the Court’s jurisdiction. The question is whether the claim in defamation is ‘associated’ with the federal claims.

17In Fencott v Muller (1983) 152 CLR 570 at 603 - 604, the majority (Mason, Murphy, Brennan and Deane JJ) said:

‘On the other hand, particular legal proceedings may relate to part only of what should properly be seen as the one larger “matter”. … The concept of “matter” as a justiciable controversy, identifiable independently of the proceedings which are brought for its determination and encompassing all claims made within the scope of the controversy, was accepted by a majority of the court in [Philip Morris v Brown (1981) 148 CLR 457] Barwick CJ said (at 474): “It is settled doctrine in Australia that when a court which can exercise federal jurisdiction has its jurisdiction attracted in relation to a matter, that jurisdiction extends to the resolution of the whole matter. This accrued federal jurisdiction is not limited to matters incidental to that aspect of the matter which has, in the first place, attracted federal jurisdiction. It extends, in my opinion, to the resolution of the whole matter between the parties. This accrued jurisdiction carries with it the authority to make such remedial orders as are necessary or convenient for or in consequence of that resolution. For this purpose, the court exercising federal jurisdiction may enforce rights which derive from a non-federal source. This exercise of this jurisdiction, which for want of a better term I shall call ‘accrued’ jurisdiction, is discretionary and not mandatory, though it will be obligatory to exercise the federal jurisdiction which has been attracted in relation to the matter.”

18The majority continue (152 CLR 570 at 609 - 610):

‘However, federal judicial power is attracted to the whole of a controversy only if the federal claim is a substantial aspect of that controversy. A federal claim which is a trivial or insubstantial aspect of the controversy must, of course, itself be resolved in federal jurisdiction, but it would be neither appropriate nor convenient in such a case to translate to federal jurisdiction the determination of the substantial aspects of the controversy from the jurisdiction to which they are subject in order to determine the trivial or insubstantial federal aspect. Again, impression and practical judgment must determine whether it is appropriate and convenient that the whole controversy be determined by the exercise of federal judicial power’

19In Re Wakim; Ex parte McNallyand Another (1999) 198 CLR 511, the High Court determined that the Federal Court is not competent to hear matters which are solely State matters. In my judgment, the constitutional ‘matter’ of the applicant’s claim is the alleged agreement or conspiracy to publish the article in ‘The Catalyst’ which is set out in the Statement of Claim.   This matter is not, in my view, one of which it can clearly be said to involve no federal aspect.  I will therefore consider whether it is just to extend time to bring proceedings, notwithstanding the periods of limitation have expired.

20The applicant claims against all of the respondents:

‘Damages including aggravated and exemplary damages, together with interest pursuant to the Federal Court of Australia Act 1976 (Cth) and costs for;

(a)breach of section 52(1) when read with s 6 (2) of the Trade Practices Act 1974 (Cth);

(b)defamation pursuant to the Defamation Act 1889 (Qld);

(c)criminal conspiracy to injure defame and defraud the applicant in his professional business;

(d)breaches of for contravention of civil penalty provisions ss 232920(4)(5) and (6) as defined by s 1317DA of the Corporations Law 1999;

(e)compensation order pursuant to section 1317H of the Corporations Act 2001.’

21During the hearing of this Motion, the applicant admitted that the essence of his claim was defamation.   When asked by the Court, ‘Are [the declarations sought] not simply dependent on your making good your claims in respect of defamation and other breaches of the trade practices and corporations laws?’, the applicant stated ‘They don't stand apart from it, except perhaps the order for declaration, but I suppose that's tied to the defamation action in any case’. (emphasis added)

22Further, in his affidavit dated 11 November 2005, the applicant said:

‘3. I was legally advised [in early March 2002] that the evidence of Mr. Ettridge was insufficient to found a claim for damages for defamation.’ (emphasis added)

23It is clear that a ‘matter’ may properly found a claim based on s 52 of the Trade Practices Act 1974 (Cth) and a claim for defamation. The Federal Court, per Bowen CJ, Lockhart and Fitzgerald JJ in Global Sportsman Pty Ltd & anor v Mirror Newspapers Ltd & anor (‘Global Sportman’) (1984) 55 ALR 25, said at 29:

‘There is no definable boundary between conduct which is misleading or deceptive or likely to mislead or deceive and material which is defamatory.  Material which is defamatory does not fall outside the operation of sub-s 52(1) of the Act merely for that reasons any more than it is brought within the operation of sub-s 52(1) by reason only that it is defamatory.  If the operation of sub-s 52(1) was limited to exclude material because it was defamatory, not only newspaper publishers, but all corporations would be exonerated.  Such a proposition would severely restrict the broad generality of s 52(1)…’

24I referred to Global Sportsman in Lloyd’s Ships v Davros (1987) 72 ALR 643 and noted, at 675:

‘…if a statement for which a corporation is responsible is made in trade or commerce and, if the statement contains or conveys a misrepresentation, the making of it will constitute conduct which is misleading or deceptive or likely to misled of deceive.  The fact that the material is defamatory does not for that reason fall outside the operation of s 52, nor is it brought within the operation of s 52 because it is defamatory.’

25Counsel for the respondents, Mr Tim Matthews, argued that in commencing proceedings on 3 October 2005, the applicant was out of time in relation to the claim for damages based on the (alleged) defamation.  It was further submitted that the claims for breaches of the Trade Practices Act and Corporations Act are also out of time.

26In the case of the tort of defamation, time starts to run at the date of publication. The Limitation of Actions Act 1974 (Qld) s 10(1)(a) provides:

‘10 Actions of contract and tort and certain other actions
(1) The following actions shall not be brought after the expiration of 6 years from the date on which the cause of action arose—
(a) subject to section 10AA, an action founded on simple contract or quasi-contract or on tort where the damages claimed by the plaintiff do not consist of or include damages in respect of personal injury to any person;’

27The original Statement of Claim was filed on 3 October 2005.  The impugned conduct there is said to have occurred between 19 August 1999 and 30 September 1999.

28Atkinson J gave Reasons for Judgment, in proceedings in the Supreme Court of Queensland on August 18, 1999, the effect of which led to the deregistration of Pauline Hansons’ One Nation as a political party, pursuant to the Electoral Act 1992 (Qld).

29O 13 of the Federal Court Rules provides the Court with power extend the time within which to bring a proceeding, notwithstanding it is statute barred. O 13 r 2(1) provides:

‘2(1) Subject to the following provisions in this rule, the Court may, at any stage of any proceeding, order that any document in the proceeding be amended, or that any party have leave to amend any document in the proceeding, in either case in such manner as the Court thinks fit.

2 (2) All necessary amendments shall be made for the purpose of determining the real questions raised by or otherwise depending on the proceeding, or of correcting any defence or error in any proceeding, or of avoiding multiplicity of proceedings.

2(3) Where an application to the Court for leave to make the amendment mentioned in sub-rules (4), (5) or (6) or paragraph (7)(a) is made after the relevant period of limitation current at the date of the commencement of the proceeding has expired, the Court may, nevertheless, grant such leave in the circumstances mentioned in that sub-rule if it thinks it is just to do so.

30Federal Court Rules, O 13 r 3 allows for the amendment of pleading without leave:

‘3(1) A party may, without leave, amend any pleading of his once at any time before the pleadings are closed…’

31Federal Court Rules, O 13, r 3(4) provides:

‘3(4) Subrule (3) does not permit an amendment that would have an effect inconsistent with any statute that limits the time within which an action or proceeding of a particular kind may be brought or instituted’

32Federal Court Rules, O 13, r 5 provides for the disallowance of amendment:

‘5(1) If a party amends a pleading under sub-rule 3 (1), the Court may, subject to sub-rule (3), by order disallow the amendment…’

33In the present circumstances, O 13 r 2(3) confers a discretion on the Court to extend the time within which to bring proceedings, from 30 September 2005 to 3 October 2005,  ‘if it thinks it is just to do so’. 

34The issue for the Court is whether the applicant should be permitted to rely on his new and extended allegation, yet to be pleaded, that, between 19 August and 30 November 1999, certain things happened.  The applicant has provided no evidence explaining why this change in the period was introduced into the Statement of Claim.

35On 14 November 2005 the Court gave the applicant leave to amend the Statement of Claim.  Those Orders were as follows:

1.Leave is granted to the applicant to amend the principal proceedings to remove “Gympie Times Pty Ltd ACN 009 656 928” as fifth respondent in those proceedings.

2.Leave is granted to the applicant to amend the name of the fourth respondent in the principal proceedings to read “Ross Bensted” rather than “Ross Binstead”.

3.The foreshadowed amended statement of claim is to be filed and served by Friday 18 November 2005.  It should be served by post on the third and fourth respondents forthwith and served in the usual way on the first and second respondents forthwith.

4.If there is any additional material on which the respondents seek to rely in addition to the pleading, or the motion, or the material Mr Sharples has filed, that material should be filed and served by Friday 18 November and posted by ordinary pre-paid post to Mr Sharples at 45 Charles Street, Tweed Heads, on that day.

5.Any material on which the applicant wishes to rely in support of the foreshadowed amended notice of motion or in response to the first and second respondent's notice of motion should be filed by 25 November and posted by that day to the solicitors for the first and second respondents and the third and fourth respondents.

6.Any material in response to the applicant’s material in support of his motion for an extension of time should be filed and served by 4 pm on Friday 2 December.’ 

36These comprehensive directions appear to have been misconstrued by the applicant.  An Amended Statement of Claim was filed by the applicant on 5 December 2005.  This document goes well beyond what the applicant had ‘foreshadowed’. 

37The Amended Statement of Claim has changed the pleading of the date of publication, from ‘between 19 August and 30 September 1999’, to ‘between 19 August 1999 and 30 November 1999’.  The effect of this change is to plead a cause action for which the limitation period has expired.  Secondly, in his Amended Statement of Claim, the applicant has added a respondent, being Catalyst Newspapers Proprietary Limited.

38There was nothing in the grant of leave that gave the applicant the ability to add a party or to amend the substance of the claim, as the applicant has done.  In particular, it is not competent, without leave, to amend a pleading if the effect of the amendment was to plead a cause of action in respect of which the relevant period of limitation had expired.

39Because Mr Sharples is acting for himself, I think the better course is to consider his notice of  motion to be an application  for an extension of time in which  to bring his proposed causes of action; the relevant periods of limitation having expired.

40In an affidavit filed 11 November 2005, the applicant provides various reasons for his failure to lodge his claim within time.  He says that although he became aware of the publication in late 2001, he received legal advice in March 2002 that he had insufficient evidence to found a claim in damages.  He further asserts that, despite his best endeavours, he could not receive a copy of the article to enable him to pursue his action until searching the Queensland State Archives in September 2005. He contends the newspaper was not available by normal means, being posted out to supporters and members of the party.

41In his affidavit, the applicant also contends:

‘5. I verily believe no prejudice will be occasioned by the respondents by an order extending time, should such an order, as a matter of law, be required to found these proceedings.
6. I verily believe there is an addition to my own interests in this litigation a public interest in bring to account people who wrongfully misuse and abuse the constitutional freedom of speech in this country, for personal advantage.’

42One difficulty the applicant faces is his claim that he first obtained a copy of the newspaper article in late September 2005.  Only at this time, the applicant claims, did he have sufficient evidence to institute legal proceedings against the various respondents.  However, the applicant seeks to show a republication of the article.  He points to an affidavit of Mr Ettridge, who swears that ‘sometime’ in December 1999, he received a copy of the Catalyst newspaper by post.  Of course, this is after 30 November 1999, the end point of the period for which he contends in the Amended Statement of Claim filed 5 December 2005.

43The applicant contends that publication occurs ‘not just when the newspaper is printed.  It’s when it is – when people read it.  Every time people read something like that, it’s re-published.  And that’s the time-frame that should be applied here’.    He further stated ‘the person is defamed every time someone reads it’.

44The only evidence before the Court of publication, or re-publication of the article, is to Mr Ettridge ‘sometime’ in December 1999.  This is the date that the applicant contends the limitation period should commence; this is the date the applicant seeks to have as the ‘publication point’.

45The applicant contends that his ignorance of the publication should be no bar against his claim; that he did not have any reasonable way of knowing about the alleged defamation until it was told to him verbally, and he could thus make proper inquiry and obtain a copy of the newspaper.

46The applicant’s reasoning poses problems.  If the applicant’s contentions are correct, and it is ‘just’  to extend time to bring an action to the time a party learns that he has suffered damage, then there would effectively be no limitation period in respect of defamation.  Unfortunately for the applicant (except for exceptions of fraudulent concealment and the like), limitation periods do not start to run from the period a person learns they have suffered damage.

47In the original Statement of Claim the conduct on which of the respondents on which he complains is said to have taken place between 19 August 1999 and 30 September 1999.  The applicant’s proceedings were not commenced until 3 October 2005, which is after the affluxion of the period of limitation of six years.  Even with the changes introduced by the Amended Statement of Claim filed on 5 December 2005, which extended the period so that the relevant period was 19 August 1999 to 30 November 1999, the causes were then out of time.

48The right to bring actions under the Trade Practices Act 1974 (Cth) at the time was within the period of three years. The period of limitation by subsequent amendments to the Trade Practices Act has now been extended to six years, but those amendments were not retrospective.  The applicant on any view of the relevant time period is out of time and statute barred in respect to breaches of the Trade Practices Act 1974 (Cth).

49In respect of claims based on the Corporations Law 1999 (Cth) or compensation pursuant to the Corporations Act 2001 (Cth), the relevant limitation periods again were no more than three years.

50Viewing the matter more generally, the present application by the applicant, is one made in early 2006, for an extension of time to bring proceedings in respect of conduct that occurred at the latest by the end of December 1999.  Nothing in the material before the Court provides a basis for concluding that it would be just for the period within which to bring proceedings to be extended this time.

51The claims for damages, with their various statutory foundations are statute barred and those claims should be struck out:  see Kim v Minister for Immigration, Local Government and Ethnic Affairs and the Commonwealth of Australia (1989) FCA 770. 

52As to the applicant’s claims for declarations, s 21 of the Federal Court of Australia Act 1976 (Cth) provides:

‘21 Declarations of right

(1)The Court may, in relation to a matter in which it has original jurisdiction, make binding declarations of right, whether or not any consequential relief is or could be claimed.

(2)A suit is not open to objection on the ground that a declaratory order only is sought.’

53The purpose of declarations were discussed by this Court in Warramunda Village Inc v Pryde [2001] FCA 61, where the Court, discussing the power in s 21, said at par [8]:

‘…The remedy of a declaration of right is ordinarily granted as final relief in a proceeding. It is intended to state the rights of the parties with respect to a particular matter with precision, and in a binding way. The remedy of a declaration is not an appropriate way of recording in a summary form, conclusions reached by the Court in reasons for judgment. This is even more strongly the case when the conclusion is not one from which any right or liability necessarily flows.’

54In the light of my conclusions about the various claims for damages, the present case is not one in which there would be any basis for the making of the declarations sought.

55For the above reasons the Notice of Motion by the applicant seeking that the ‘Time for issuing of these proceedings be extended if required by law until…….. 2 October 2005’ be dismissed and that the relief claimed in par [2] of the applicant’s Notice of Motion filed 11 November 2005, namely, ‘That leave be granted for further amended pleadings after the examination of the First and Second Respondents in relation to the description of persons concerned with the printing, production and publication of the newspaper known as the catalyst’ be refused.

56On the Notice of Motion by the First and Second Respondents, the Court orders that the applicant’s application and statement of claim be struck out, as statute barred.

57The applicant in the principal proceedings should pay the costs of the first and second respondents of the two Notices of Motion, to be taxed if not agreed.

I certify that the preceding fifty-seven (57) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Spender.

Associate:

Dated:             7 April 2006

Counsel for the Applicant:	The applicant appeared in person
Counsel for the Respondent:	Tim Matthews
Solicitor for the Respondent:	Greg Ploetz
Date of Hearing:	7 February 2006
Date of Judgment:	7 April 2006