Federal Court of Australia

Dakin v Bellizzi [2026] FCA 488

ORDERS

THE COURT ORDERS THAT:

1.    The proceeding be dismissed.

2.    The applicant pay the respondents’ costs, assessed on an indemnity basis.

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

REASONS FOR JUDGMENT

(Delivered ex tempore, revised from transcript)

WIGNEY J:

1    In October 2025, the applicant in this proceeding, Mr Harrold Dakin, commenced proceedings in the Federal Court of Australia alleging that the respondents, Mr Mario Bellizzi and Mrs Cheryl Bellizzi, defamed him. The allegedly defamatory statements were said to have been made at a private dinner attended by approximately 100 guests. The essence of Mr Dakin’s case is that Mrs Bellizzi heckled him during a speech he gave at the dinner. Mrs Bellizzi allegedly called Mr Dakin a “crook” who had refused to repay a loan owing to a woman named Ms Sonia Fenton. Similar statements were allegedly later made by both Mr and Mrs Bellizzi to a table of diners which included Mr Dakin. Mr Dakin claimed that those statements were defamatory and caused him serious harm.

2    Shortly after the proceeding was commenced, Mr and Mrs Bellizzi applied to have the proceeding dismissed on the basis that this Court did not have jurisdiction to try Mr Dakin’s claim in defamation because the allegedly defamatory statements were only made or published in New South Wales. The Court has jurisdiction to try a claim in defamation pursuant to s 9(3) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), but only when the alleged defamatory statements are published in the Australian Capital Territory or the Northern Territory. Mr and Mrs Bellizzi also contended that Mr Dakin’s pleading of his defamation case was deficient and defective because it failed to properly plead any material facts capable of supporting his allegation that the defamatory statements caused him serious harm as required by s 10A of the Defamation Act 2005 (NSW).

3    Mr Dakin now concedes that the Court does not have jurisdiction to try his existing claim in defamation. He seeks, however, to avoid the dismissal of his proceeding by seeking leave to amend his originating application and to file a new pleading in which it is alleged that a company with which Mr Dakin is associated has a cause of action against Mr and Mrs Bellizzi in respect of which the Court has jurisdiction. That cause of action is said to be that Mr and Mrs Bellizzi aided, abetted, counselled or procured Ms Fenton to make a misleading representation to that company and thereby contravened s 18 of the Australian Consumer Law (ACL) (being sch 2 to the Competition and Consumer Act 2010 (Cth)). Mr Dakin contends that if he is permitted to amend his originating application and pleading to include that claim under the ACL, the Court will have jurisdiction to entertain his claim in defamation. Such jurisdiction has in the past been referred to as accrued jurisdiction, though that terminology is now largely eschewed: cf Rizeq v West Australia (2017) 262 CLR 1; [2017] HCA 23 at [55].

4    For the reasons that follow, Mr Dakin’s application for leave to amend his originating application should be refused. In short, the proposed claim against Mr and Mrs Bellizzi under the ACL is a colourable claim which he seeks to raise on behalf of the company so as to sidestep the dismissal of his defamation action for want of jurisdiction. That conclusion is supported not only by the chronology of events preceding the hearing of Mr and Mrs Bellizzi’s application for summary dismissal of Mr Dakin’s defamation action, but also by the manifest deficiencies in the proposed pleading of the action under the ACL. There is also some merit in Mr and Mrs Bellizzi’s alternative contention that Mr Dakin’s defamation action is, in any event, liable to be summarily dismissed given the failure to plead any material facts in support of his claim that the allegedly defamatory statements caused him serious harm, which is an essential element in the cause of action in defamation.

Mr Dakin’s pleaded defamation claim

5    It is necessary to provide some more detail in respect of Mr Dakin’s claim in defamation. It is also important to refer to some additional facts which, while not currently pleaded, can nevertheless be gleaned from the proposed amended pleading, which includes the proposed claim against Mr and Mrs Bellizzi under the ACL. Those additional facts provide some important context to Mr Dakin’s defamation claim.

6    Mr Dakin is the director and chief executive officer of two companies: ICC Development Group Pty Ltd and ICC Group Peakhurst Pty Ltd. In August 2022, ICC Peakhurst purchased two properties in Peakhurst from Ms Fenton and entities associated with her. The purchase price of those properties was $10 million, though ICC Group Peakhurst paid only $2.5 million of that purchase price. The balance was to be paid pursuant to a loan facility that was guaranteed by Mr Dakin.

7    Ms Fenton had for some time operated a function centre business at the Peakhurst properties. Mr Dakin and one of the ICC companies was apparently going to take over that business following the purchase of the Peakhurst properties. It was in that context that a dinner was held at one of the Peakhurst properties in October 2024. The dinner, which was attended by about 100 people, was held to commemorate Ms Fenton upon her departure from the business, and to introduce Mr Dakin to the “stakeholders” of that business. At the time of the dinner ICC Group Peakhurst had not repaid the balance of the purchase price of the Peakhurst properties to Ms Fenton or the entities associated with her. As will be explained later, however, Mr Dakin’s ACL claim is based on the contention that Ms Fenton had told him that she would not pursue the repayment of the balance of the purchase price.

8    Mr Dakin gave a speech during the dinner. During that speech, Mrs Bellizzi heckled Mr Dakin. She allegedly called out: “[d]o you own the building?”; “[do] you have a conscience”; “[w]hy don’t you pay Sonia [Fenton] the $7.5 million you owe her”; and “[t]his guy owes Sonia $7.5 million and is a crook.” Mr Dakin claims that those statements were defamatory of him and conveyed the following imputations: Mr Dakin does not have a conscience; Mr Dakin or entities controlled by Mr Dakin owe money to Ms Fenton; Mr Dakin had taken advantage of Ms Fenton in a business arrangement; and Mr Dakin was a crook engaging in illegal or unlawful conduct.

9    About 45 minutes after Mr Dakin’s speech, Mr and Mrs Bellizzi approached a table where Mr Dakin was seated with his family and some friends or associates. Mr Dakin alleged that Mrs Bellizzi made several statements to Mr Dakin which were similar to those that she made during Mr Dakin’s speech. It is unnecessary to provide the precise details of those statements. Mr Bellizzi also allegedly made similar statements to Mr Dakin in the presence of those seated at the table at the time. The imputations allegedly conveyed by the statements made by both Mr and Mrs Bellizzi at this time are broadly similar to those that were said to have been conveyed by the statements made by Mrs Bellizzi during the speech.

10    Mr Dakin alleges that the defamatory imputations conveyed by the statements made by Mr and Mrs Bellizzi caused him “serious damage, harm, distress and embarrassment”, including “serious harm to the perception of Mr Dakin’s professional reputation by his peers and subordinates”, “serious harm to the perception of Mr Dakin’s personal reputation by his friends”, “serious harm to the perception of Mr Dakin’s professional reputation” and “serious harm to his business prospects”. The contention that the defamatory imputations caused Mr Dakin serious harm in that regard is said to flow from the “gravity and seriousness of the defamatory statements”. The existing pleading, however, does not plead any material facts to support the allegation that the defamatory statements or imputations caused Mr Dakin to suffer serious harm. Nor does the pleading identify any meaningful particulars of that allegation.

The Court does not have jurisdiction to try Mr Dakin’s existing claim in defamation

11    Mr Dakin now correctly concedes that the Court does not have jurisdiction to try his existing claim in defamation, though that concession was not squarely made until shortly before the hearing of Mr and Mrs Bellizzi’s summary dismissal application.

12    The Court only has jurisdiction in relation to actions in defamation as a result of the operation of s 9(3) of the Cross-vesting Act. That jurisdiction, however, only exists where the defamatory statements or imputations were published in the Australian Capital Territory or Northern Territory: Rana v Google (2017) 254 FCR 1; [2017] FCAFC 156 at [40]; Raghubir v Nicolopoulos [2022] FCAFC 97 at [28]. As the alleged defamatory statements made by Mr and Mrs Bellizzi were only made or published in New South Wales, the Court does not have jurisdiction to entertain Mr Dakin’s claim in defamation. Mr Dakin did not contend otherwise.

13    Mr Dakin initially contended that the Court could and should transfer the proceeding to the Supreme Court of New South Wales pursuant to s 5(4) of the Cross-vesting Act. The Court can only exercise that discretionary power, however, if the proceeding in question had regularly invoked the Court’s jurisdiction: Amalia Investments Ltd v Virgtel Global Networks NV (No 2) [2011] FCA 1270 at [33]-[35] and [101]-[102]. Perhaps not surprisingly in those circumstances, Mr Dakin did not press his attempt to have the proceeding transferred to the Supreme Court of New South Wales.

14    Mr Dakin seeks to overcome the fact that the Court lacks jurisdiction to entertain his existing defamation claim by seeking leave to amend his originating application to add, as an applicant, ICC Group Peakhurst and to include additional claims for relief. The additional claims for relief include a declaration that Mr and Mrs Bellizzi engaged in misleading and deceptive conduct in contravention of s 18 of the ACL and damages pursuant to s 236 of the ACL. In support of the application for leave to amend the originating application, Mr Dakin has tendered a proposed amended statement of claim which purports to plead material facts and particulars in relation to the proposed claim under s 18 of the ACL. I will say something more about the nature of the proposed claim against Mr and Mrs Bellizzi for aiding and abetting a contravention of s 18 of the ACL later in these reasons. It should perhaps also be noted that the proposed amended statement of claim pleads two other causes of action. It is unnecessary to consider those causes of action as they would not, in any event, attract the Court’s jurisdiction if the ACL claim cannot be pursued.

Mr Dakin’s application for leave to amend the originating application

15    Mr Dakin requires leave to file an amended originating application: see r 8.21 of the Federal Court Rules 2011 (Cth). While he does not require leave to file an amended statement of claim in the circumstances (see r 16.51 of the Rules), there would be no point in filing the proposed amended statement of claim if leave to file the amended originating application is not granted as it would be liable to be struck out. That is so for a number of reasons, but mainly because the applicant in respect of the new causes of action pleaded in the proposed amended statement of claim is said to be ICC Group Peakhurst, however ICC Group Peakhurst is not currently a party to the proceeding. It will only be a party if leave to file the amended originating application is granted.

16    As was noted earlier, Mr Dakin’s application for leave to amend the originating application clearly occurred in the context of his belated acknowledgment or acceptance that the Court lacked jurisdiction to entertain his defamation claim. It may be accepted that, if Mr Dakin was granted leave to file the proposed amended originating application and filed the proposed amended statement of claim, the Court would have jurisdiction to entertain his claims, including his claim in defamation, but only if ICC Group Peakhurst’s claim against Mr and Mrs Bellizzi under the ACL was not considered to be colourable. The word colourable in that context conveys that the claim is made for the “improper purpose of ‘fabricating’ jurisdiction”: Burgundy Royale Investments Pty Ltd v Westpac Banking Corporation (1987) 18 FCR 212 at [219].

17    A claim cannot be said to be colourable if it is “genuinely in controversy” or “genuinely raised” and “not incapable on its face of legal argument”: Citta Hobart Pty Ltd v Cawthorn (2022) 276 CLR 216; [2022] HCA 16 at [35]. A claim will not be considered to be colourable merely because it is unarguable or untenable, unless perhaps it is so obviously untenable that it amounts to “legal nonsense”, or is so obviously unarguable that it may be inferred that the claim is not genuinely raised: Qantas Airways Ltd v Lustig (2015) 228 FCR 148 at [88]; Johnson Tiles Pty Ltd v Esso Australia Ltd (2000) 104 FCR 564; [2000] FCA 1572 at [88]; Scott v Steritech Pty Ltd [2025] FCAFC 110 at [48]; Tucker v McPhee (2022) 292 FCR 666; [2022] FCAFC 98 at [71]. There is otherwise no “threshold of arguability”: Steritech at [48].

18    There could, in the circumstances, be no doubt that Mr Dakin’s application for leave to file the amended originating application should be refused if it is open to conclude that the ACL claim is colourable in the sense just explained. The first question to consider, therefore, is whether the ACL claim is colourable. It would, however, also be open to the Court to refuse leave to amend if the ACL claim as articulated in the proposed amended statement of claim, while perhaps not colourable, is nonetheless sufficiently untenable or unarguable as to be liable to be struck out or summarily dismissed. In order to determine either of those questions, it is necessary to first analyse the ACL claim.

The proposed ACL claim by ICC Group Peakhurst

19    As discussed earlier, ICC Group Peakhurst paid only $2.5 million of the $10 million purchase price for the Peakhurst properties and agreed to pay the balance pursuant to a loan agreement secured by a guarantee provided by Mr Dakin. The essence of ICC Group Peakhurst’s proposed ACL claim against Mr and Mrs Bellizzi is that Ms Fenton represented to Mr Dakin that she would not pursue the repayment of ICC Group Peakhurst’s $7.5 million debt and would discharge the security in respect of that loan. That representation is alleged to have been misleading and, critically, Mr and Mrs Bellizzi are alleged to have aided, abetted, counselled or procured Ms Fenton in respect of the making of that misleading representation. When those allegations are unpacked and analysed, however, it becomes readily apparent that they are obviously untenable and unarguable.

20    The allegedly misleading representation is said to have been made by Ms Fenton to Mr Dakin at a meeting between the two that took place on 20 September 2024 at a café or restaurant in Parramatta, and a meeting at one of the Peakhurst properties on 8 October 2024. The proposed pleading also refers to an email dated 4 October 2024, though the particulars provided in respect of the contents of the email do not appear to unequivocally support the terms of the representation as pleaded. The pleading also notes that further particulars will be provided after the applicant’s evidence is served, which is somewhat surprising in the circumstances given that the representation was allegedly made to Mr Dakin in person.

21    In any event, the proposed pleading states that the representation allegedly made by Ms Fenton that she would not pursue the repayment of the $7.5 million balance of the purchase price and would discharge the security she held in respect of that debt was a “future representation” for the purposes of s 4 of the ACL, and that Ms Fenton did not have reasonable grounds for making it. No particulars are provided in respect of the allegation that Ms Fenton did not have reasonable grounds for making the representation. Rather, it is simply alleged that, unbeknownst to Mr Dakin, at some unspecified time Ms Fenton took some steps to “directly or indirectly” enforce the payment of the outstanding $7.5 million, including by “approaching business associates of Mr Dakin and ICC Peakhurst”, and had refused to “transfer the entirety of the [property] to ICC Peakhurst by retaining a security interest” in the property.

22    Pausing there, it is entirely unclear how the largely unparticularised “steps” apparently taken by Ms Fenton at some stage to recover the debt and her retention of the security could be said to be capable of supporting the contention that Ms Fenton did not have reasonable grounds for making the alleged representation. The “steps” appear to have been taken after the alleged representation was made. The case as pleaded appears to amount to nothing more than a claim that Ms Fenton told Mr Dakin that she would not seek to recover the outstanding debt, but at some later point in time changed her mind. More will be said later about this deficiency or defect in the pleaded ACL case. It suffices at this point to note that the allegation that Ms Fenton did not have reasonable grounds for the making of the representation is central to the claim. It is solely on that basis that it is alleged that the representation was misleading. Failure to plead a tenable basis for that allegation would be fatal.

23    It is also important to emphasise that ICC Group Peakhurst does not make any claim or seek any relief against Ms Fenton in respect of her alleged contravention of s 18 of the ACL. Rather, it alleges that Mr and Mrs Bellizzi were involved in Ms Fenton’s contravention because they aided, abetted, counselled or procured the contravention. The particulars that are provided in respect of that critical allegation are, however, puzzling to say the very least. The particulars, in summary, are that Mr and Mrs Bellizzi: discussed and knew about the sale of the Peakhurst properties and the fact that ICC Peakhurst’s outstanding debt of $7.5 million had (allegedly) been forgiven; at some unspecified time induced and procured Ms Fenton to take steps to repay that debt; made the alleged defamatory statements at the dinner; and intended to receive a benefit from Ms Fenton, including a rocking horse and Ms Fenton’s dogs. Significantly, it is not alleged that Mr and Mrs Bellizzi knew about the alleged representation made by Ms Fenton, or somehow procured her to make it, or knew that Ms Fenton did not have reasonable grounds for making it. More will be said later about this deficiency in the pleaded case.

24    ICC Group Peakhurst alleges that it relied on Ms Fenton’s (allegedly) misleading representation and suffered loss and damage as a result of Mr and Mrs Bellizzi’s contravention of s 18 of the ACL. The particulars of those allegations, however, are scant and difficult to understand, to say the very least. The particulars of reliance include that ICC Group Peakhurst relied on Ms Fenton’s representation to “restructure its financing arrangements in the manner in which it approach [sic] negotiations with its financiers and advisers”. Exactly how it restructured its finances and changed its approach to its negotiations is left unexplained. The particulars of the alleged loss and damage are also somewhat mystifying in that it is difficult to see how the particularised loss or damage could sensibly be said to have flowed from or been caused by the alleged misleading representation or any reliance upon it. For example, the particulars of loss include a “decrease in the rental income derived from the Property” and “[s]taff employed at the function business operating from the Premise resigning”.

The proposed ACL claim is colourable

25    I am satisfied that the proposed ACL claim by ICC Group Peakhurst is colourable in the relevant sense. In short, I am satisfied that Mr Dakin and ICC Group Peakhurst propose to advance that claim in order to sidestep the fact that the Court does not have jurisdiction to entertain Mr Dakin’s existing claim in defamation. In other words, they effectively seek to manufacture or fabricate jurisdiction to entertain the defamation claim by introducing a supposedly associated claim under the ACL which the Court would have jurisdiction to entertain. The fact that the purpose of the ACL claim is to fabricate jurisdiction and is not genuinely raised is readily apparent both from the timing of the proposed amended originating application and from the fact that the proposed pleading of the ACL claim is so deficient that it could fairly be described as “legal nonsense”.

26    Turning first to the timing of the proposed filing of the amended originating application and supporting pleading, the events that are said to give rise to Mr Dakin’s defamation claim and the proposed ACL claim occurred as long ago as September and October of 2024. The alleged defamatory remarks were made at the dinner which occurred on 31 October 2024. The proceeding was commenced on 13 October 2025, which was effectively the last day of the limitation period for the commencement of Mr Dakin’s claim in defamation: see s 14B of the Limitation Act 1969 (NSW).

27    Within two weeks of the commencement of the proceeding, Mr and Mrs Bellizzi’s legal advisers wrote to Mr Dakin’s legal advisers about the proceeding. They pointed out that the Court did not have jurisdiction to entertain the claim in defamation given that the alleged defamatory statements were only published in New South Wales and were not published or republished in the Australian Capital Territory or the Northern Territory.

28    Mr and Mrs Bellizzi’s legal advisors received no immediate response to that letter. That prompted them to file the current interlocutory application seeking the dismissal of the proceedings. That interlocutory application was filed on 14 November 2025. On 16 December 2025, the Court made orders by consent which listed the interlocutory application for hearing on 26 March 2026. Mr and Mrs Bellizzi were directed to file their submissions in support of the interlocutory application by 5 March 2026. They complied with that direction. Mr Dakin was ordered to file his submissions in respect of the interlocutory application by 12 March 2026. He did not comply with that order.

29    It was not until 17 March 2026, less than two weeks before the hearing, that Mr and Mrs Bellizzi’s legal advisers heard from Mr Dakin’s legal advisers. In that correspondence, Mr Dakin’s legal advisers foreshadowed that they would be serving a proposed amended originating application and statement of claim. There was further correspondence the following day from Mr Dakin’s legal advisers in which Mr Dakin sought Mr and Mrs Bellizzi’s consent to an adjournment of the hearing of the interlocutory application. Two days later, Mr Dakin’s legal advisers served a copy of the proposed amended originating application and statement of claim. It will be recalled that Mr and Mrs Bellizzi’s interlocutory application was listed for hearing on 26 March 2026. The proposed amended originating application and statement of claim were served within days of that hearing. Shortly prior to the hearing, Mr and Mrs Bellizzi’s solicitors wrote to Mr Dakin’s legal advisers and advised that they would oppose any adjournment of the interlocutory application and, by implication, that they opposed leave being granted to file the amended originating application.

30    It is in my view tolerably clear from that chronology of events that preceded the hearing of Mr and Mrs Bellizzi’s interlocutory application, that the proposed amended originating application and the proposed ACL claim against Mr and Mrs Bellizzi was prompted and motivated by the likely dismissal of the defamation proceeding for want of jurisdiction. It was, in effect, a last-ditch effort to avoid the almost inevitable summary dismissal of Mr Dakin’s defamation case for want of jurisdiction.

31    The inference that the proposed addition of ICC Group Peakhurst’s ACL claim was conjured up with a view to introducing a federal element into the proceeding is strengthened by the absence of any credible explanation for why it took Mr Dakin and his legal advisers over two years to advance that proposed claim. As will be apparent from the earlier outline of the proposed ACL claim, the claim essentially hinges on what was said to be a misleading representation made by Ms Fenton to Mr Dakin as long ago as September or early October 2024. While the date that Mr Dakin supposedly became aware that Ms Fenton’s representation was misleading is unclear from the proposed pleading, it is likely to have been not long after October 2024. While Mr Dakin commenced the defamation action within a year of those events, shortly before the expiry of the relevant limitation period, no steps were taken to advance the ACL claim for well over another year.

32    Mr Dakin, through his legal representatives, sought to explain that delay in an affidavit sworn by the solicitor who currently has carriage of the matter. That solicitor, who is in the same firm as the solicitor who originally had carriage of the defamation proceeding, states that it only recently became apparent to him, when reviewing Mr Dakin’s “preliminary evidence”, that the loss flowing from Mr and Mrs Bellizzi’s conduct was not limited to the loss suffered by Mr Dakin as a result of the alleged defamatory statements, but extended to the loss suffered by ICC Group Peakhurst as a result of the allegedly misleading statement by Ms Fenton. That rather vague and ambiguous evidence is, with respect, scarcely a plausible or credible explanation for why no steps were taken to advance the proposed ACL claim until the very eve of the hearing of the application to strike out Mr Dakin’s defamation claim. It certainly does not prevent the drawing of the inference that almost inescapably flows from the chronology of events.

33    The inference flowing from the chronology of events that strongly suggests that the ACL claim is colourable is still further strengthened by the fact that the proposed pleading of the ACL claim is beset by defects and deficiencies to the point where it could fairly be said to be unarguable or nonsensical. Some of those defects and deficiencies were identified earlier when the proposed ACL claim was outlined. It is sufficient to highlight three fundamental problems with the claim.

34    First, the central allegation that founds the ACL claim is that Ms Fenton made a representation concerning a future matter in circumstances where she had no reasonable grounds to make the representation. The representation was, in essence, that Ms Fenton would not seek to recover the outstanding debt owed by ICC Group Peakhurst. Ms Fenton is alleged not to have had reasonable grounds to make that representation simply because she subsequently sought to recover the debt, though the particulars of what she is said to have done in that regard are very vague. The problem is that it is well established that it is not misleading to make a promise which is not performed: Fubilan Catering Services Ltd (Incorporated in PNG) v Compass Group (Australia) Pty Ltd [2008] FCAFC 53 at [91]. Equally, a representation about a future event is not rendered misleading, on the basis that it was unsupported by reasonable grounds, simply because a contrary decision was made at some later point: Mobil Oil Australia Ltd v Lyndel Nominees Pty Ltd (1998) 81 FCR 475 at [521].

35    Second, another essential allegation that founds the ACL claim against Mr and Mrs Bellizzi is that they aided, abetted, counselled or procured Ms Fenton’s contravention of s 18 of the ACL. To make out that allegation, ICC Group Peakhurst would have to establish, at a minimum, that Mr and Mrs Bellizzi somehow encouraged or assisted Ms Fenton to make the alleged representation and knew at the time that Ms Fenton had no reasonable grounds to make it. The proposed ACL pleading, however, does not make any such allegation and does not identify any material facts capable of making out any such allegation.

36    Third, the pleading of the loss or damage said to have been caused by Mr and Mrs Bellizzi’s supposed knowing involvement in the making of the misleading representation by Ms Fenton is at best difficult to understand. To the extent that the case in respect of causation and damage can be discerned, the loss or damage said to have been suffered by ICC Group Peakhurst appears to be the loss or damage that it has suffered as a result of the steps taken, or proposed to be taken, by Ms Fenton to recover the outstanding loan. That, however, could not sensibly be said to be a loss flowing from the alleged misleading representation, let alone Mr and Mrs Bellizzi’s supposed knowing involvement in that conduct.

37    As discussed earlier, it may be accepted that a claim cannot be said to be colourable simply because it appears to be very weak or even untenable. A claim can, however, be said to be colourable if it is so untenable or unarguable that it amounts to legal nonsense. That is essentially because it may more readily be inferred that such a claim has been advanced to fabricate or manufacture jurisdiction. In my view, the proposed ACL claim by ICC Group Peakhurst against Mr and Mrs Bellizzi is such a claim. Its defects and deficiencies are such that it could fairly be said to amount to little more than legal nonsense. In any event, the manifest hopelessness of the pleaded claim provides further support for the powerful inference that is otherwise available from the chronology of events.

38    I should also add that, even if the deficiencies in the proposed claim were not sufficient to support the conclusion that the claim was colourable, I would in any event refuse to grant leave to amend the originating application to include the ACL claim. That is because the deficiencies and defects in the proposed pleading are such that the claim would in any event be liable to be summarily dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth), or the proposed pleading would be liable to be struck out pursuant to r 16.21 of the Rules on the basis that it was relevantly frivolous, vexatious, or failing to disclose a reasonable cause of action.

Deficiencies in the pleaded defamation case

39    Finally, it appears to me that there is considerable merit in Mr and Mrs Bellizzi’s contention that the existing pleading fails to properly plead the threshold element of serious harm. It seems to me, at first blush, that comments made at a dinner, albeit heckling comments during a speech, are the very sort of defamation cases that are meant to be excluded by the threshold requirement of serious harm. It is unnecessary, however, to reach a concluded view on that point.

Conclusion and disposition

40    There is essentially no dispute that the Court does not have jurisdiction to entertain Mr Dakin’s claim for defamation. If leave to file the proposed amended originating application is not granted, it must follow that the existing claim must be dismissed for want of jurisdiction. The proposed amendment to the originating application is made to enable ICC Group Peakhurst to pursue a claim under the ACL against Mr and Mrs Bellizzi. It may be accepted that, if leave to amend was granted, the Court would have jurisdiction to entertain that claim and would, as a result, effectively accrue jurisdiction to try Mr Dakin’s claim in defamation. For the reasons that have been given, however, the proposed ACL claim is colourable in the sense that it simply intended to fabricate or manufacture jurisdiction. That is apparent both from the chronology of events that preceded the application to amend and from the manifest defects and deficiencies in the proposed ACL claim. I would in any event refuse leave to amend the originating application on the basis that the proposed ACL claim would in any event be liable to be summarily dismissed or struck out. As leave to amend is to be refused, the existing proceeding in defamation must be dismissed for want of jurisdiction.

41    Mr and Mrs Bellizzi sought an order for indemnity costs, essentially on the basis that the application for leave to amend the originating application had no prospects of success and because of the unreasonable conduct of the matter revealed by the chronology of events to which I referred earlier. There is considerable merit in those arguments. It is also noteworthy that Mr and Mrs Bellizzi’s legal advisers sent what is customarily called a Calderbank letter (see Calderbank v Calderbank [1975] 3 All ER 333) to Mr Dakin’s legal advisers shortly before the hearing, in which they made an open offer that the proceeding be dismissed and that there be no order as to costs. The evidence before the Court indicates that there was no response to that correspondence. That provides an additional basis for an order of indemnity costs.

42    The orders of the Court will accordingly be that the proceeding be dismissed and that the applicant pay the respondents’ costs, assessed on an indemnity basis.

Associate:

Dated:    23 April 2026