Case: Fencott v Muller [1983] HCA 12 ; (1983) 152 CLR 570
Outcome: applied
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.' 7 The 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. 8 The 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.' 9 The 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. 10 The 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' . 11 The 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.' 12 The 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.' 13 The 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. 14 It is necessary to consider the jurisdiction of this Court in a claim for defamation, brought under the Defamation Act 1889 (Qld). 15 The 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'. 16 Under 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. 17 In Fencott v Muller [1983] HCA 12 ; (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] HCA 7 ; (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." 18 The 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' 19 In Re Wakim; Ex parte McNally and Another [1999] HCA 27 ; (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. 20 The 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 .' 21 During 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) 22 Further, 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) 23 It 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 &amp; anor v Mirror Newspapers Ltd &amp; 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)...' 24 I 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.' 25 Counsel 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. 26 In 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;' 27 The 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. 28 Atkinson 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). 29 O 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. 30 Federal 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...' 31 Federal 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' 32 Federal 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...' 33 In 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'. 34 The 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. 35 On 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".