Federal Court of Australia

Raghubir v Nicolopoulos [2021] FCA 1073

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed for want of jurisdiction.

2.    The applicants pay the respondents’ costs.

Note:    Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

(REVISED FROM THE TRANSCRIPT)

RARES J:

1    On 6 August 2021, the applicants, Renuka Raghubir and Virendra Singh, filed an originating application in this Court claiming $5,504,100 damages for defamation under the Defamation Act 2005 (NSW) in respect of what, conveniently, they said in their affidavit sworn on 6 August 2021 was a dispute as follows:

While we, the Plaintiffs were living there, we never talked to the defendants. We did not entertain her. The defendants started to instigate problems, by letting her dog bark at us every time we pass by from the front of the property, we go in the backyard to wash clothes, hang clothes, clean the backyard, do gardening in the backyard. The defendants will let her dog keep barking at us. Even when the defendants sense that we are in our kitchen, she will let her dog bark at us.

2    The applicants claim that the first respondent, their former next-door neighbour, Christine Nicolopoulos, who was the chairperson and secretary of the strata corporation in which both the applicants and the first respondent then lived. They claimed that, commencing on 2 July 2019, the first respondent wrote a series of allegedly defamatory letters to the other owners, and their real estate agents, of units in the block in Bexley, a suburb of Sydney. The applicants rely on these letters to claim that the first respondent alleged to the local council, as well as to their then landlord who owned the unit the applicants were renting, the real estate agent of the landlord, the New South Wales police, New South Wales Fair Trading and other members of the owners corporation, that, among other things, the applicants had made false complaints about the first respondent’s dog and they had falsely impersonated a council officer in a telephone call to the first respondent.

3    The quarrel escalated to the point where it became, literally, a backyard dispute with claims being made by the first respondent that the applicants were nailing material to her back fence, which she claimed was part of her own, and not common, property.

4    The first respondent wrote several letters in 2019 to the agent. Acting on the owner’s instructions, and accepting, apparently, the first respondent’s side of the story, the agent, on the landlord’s instructions, engaged in conduct leading to the termination of the tenancy. There is some dispute as to whether or not the tenancy was terminated for non-payment of rent, or because of the conduct of the applicants.

5    The applicants asserted, repeatedly, that they were unable to rent property anywhere in Australia because of the consequences of their dispute with their former landlord, the agent and their former neighbour. There was no evidence of any attempt that the applicants had made to rent property anywhere else in Australia, including within New South Wales.

The jurisdictional question

6    The applicants have addressed me this morning, at some length, to seek to explain why it was that this Court might conceivably have any original jurisdiction to hear and determine this dispute, which arises out of a dog barking in a backyard and its sequel.

7    First, the applicants relied on s 19(1) of the Federal Court of Australia Act 1976 (Cth), which provides:

19    Original jurisdiction

(1)    The Court has such original jurisdiction as is vested in it by laws made by the Parliament.

8    The Defamation Act is a law made by the Parliament of the State of New South Wales, not of the Commonwealth, and, accordingly, s 19(1) does not have any relevance to this Court’s jurisdiction under the State Act.

9    Secondly, the applicants alleged that the chapeau to s 39B(1A) of the Judiciary Act 1903 (Cth) gives the Court original jurisdiction “in any matter”. Section 39B(1A) provides:

(1A)    The original jurisdiction of the Federal Court of Australia also includes jurisdiction in any matter:

(a)    in which the Commonwealth is seeking an injunction or a declaration; or

   (b)    arising under the Constitution, or involving its interpretation; or

(c)    arising under any laws made by the Parliament, other than a matter in respect of which a criminal prosecution is instituted or any other criminal matter.

10    However, the applicants were unable to point to any matter that conceivably could fall within any of subparagraphs (a), (b), or (c) of s 39B(1A). Manifestly, this is not a case in which the Commonwealth is seeking an injunction or a declaration, or that arises under the Constitution or involves its interpretation, or that arises under any laws made by the Parliament of the Commonwealth.

11    Thirdly, the applicants sought to allege that jurisdiction arose because of s 9(3) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth), which provides, relevantly, that this Court may exercise jurisdiction, whether original or appellate, conferred on it by a provision of that Act or a law of the Australian Capital Territory or the Northern Territory relating to cross-vesting of jurisdiction, and hear and determine such a proceeding. The Defamation Act of New South Wales is not such a law, and so s 9(3) can have no application: Crosby v Kelly (2012) 203 FCR 451 at 458 [34]–[35] per Robertson J, with whom Bennett J and Perram J agreed. Nor does that Act create State jurisdiction in this Court for, as Gummow and Hayne JJ explained in Re Wakim; Ex parte McNally (1999) 198 CLR 511 at 582 [127], with the agreement of Gleeson CJ and Gaudron J (at 546 [25] per Gleeson CJ and at 546 [26] per Gaudron J) in respect of, specifically, the Jurisdiction of Courts (Cross-Vesting) Act:

The Commonwealth legislation that purports to confer State jurisdiction on federal courts (or, as the respondents and interveners would have it, consented to the conferring of the jurisdiction by the States) is invalid.

12    In my opinion, this proceeding has no basis for the invocation of federal jurisdiction. There is no “matter” attracting the exercise of the judicial power of the Commonwealth.

Other issues

13    I pointed out to the applicants that, under the Defamation Act, there may be issues as to their ability to maintain their claim for $5,504,100 by reason of its limitation on the quantum of damages awards in s 35(1) of the Defamation Act.

14    Moreover, the applicants’ affidavit indicates that the matters complained of on which they wish to sue involve communications commencing on 2 July 2019 and continuing until February 2020. During the course of argument today, Ms Raghubir told me that they only found out about these matters in December 2020, although the applicants’ own descriptions in their annexure notes for the February 2020 materials state that the communications complained of were made to the applicants, the New South Wales Civil and Administrative Tribunal, and the Department of Fair Trading of that State by the real estate agent in express terms that referred to all of the preceding matters complained of. Thus, there may be an issue as to whether the applicants will need an extension of time in which to commence the defamation proceedings under ss 14B and 56A of the Limitation Act 1969 (NSW).

15    It is not necessary to deal with those issues because I am satisfied beyond argument that this Court does not have jurisdiction to deal with a dispute about neighbours arguing over the back fence as to barking dogs and allegedly defamatory publications made as its consequences.

Conclusion

16    For these reasons, I will order that the proceeding be dismissed for want of jurisdiction. The applicants must pay the respondents’ costs.

Associate:

Dated:    6 September 2021

SCHEDULE OF PARTIES