Bartlett v Roffey [2024] FCA 906

Procedural Posture

Defamation Proceedings; Interlocutory Application for Leave to Bring Further Defamation Proceedings Nunc Pro Tunc Under S 23 of the Defamation Act 2005 (wa) and S 23 of the Defamation Act 2005 (vic) / Interlocutory Application for Leave After Discontinuance of Earlier Supreme Court of Western Australia Proceedings

Legal Issues

1. 1 ['Whether leave should be granted nunc pro tunc under s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic) to bring further defamation proceedings against the same respondents in relation to the same alleged publications.' 'Whether granting leave would give rise to a multiplicity of proceedings of the kind addressed by the Defamation Acts.' "Whether the applicant's discontinuance of the Supreme Court of Western Australia proceedings after an adverse transfer ruling and commencement of proceedings in this Court constituted an abuse of process." 'Whether any abuse of process could be addressed by conditions or further procedural orders, including transfer to the Victoria Registry and requiring discharge of costs liability in the Supreme Court proceedings.']

Ratio Decidendi

Leave under s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic) should be granted nunc pro tunc because the further proceedings gave rise to multiplicity only in a very limited sense: the earlier Supreme Court proceedings had been discontinued before this proceeding commenced, there had been no substantive determination of the defamation claims, and no feature of the defamation claims made leave unfair or unreasonable. However, the applicant's discontinuance of the Supreme Court proceedings after an adverse transfer ruling, followed by commencement in this Court to avoid the effect of that ruling, was an abuse of process because it failed to respect the Supreme...

Court Disposition

Application allowed; leave granted nunc pro tunc, proceedings transferred to the Victoria Registry, and further procedural and costs-related orders made.

Orders

• ['For the purposes of s 23 of the Defamation Act 2005 (WA) and s 23 of the Defamation Act 2005 (Vic), there be leave to the applicant to bring these proceedings.' 'Order 1 shall take effect as if made immediately before these proceedings were commenced.' 'The proceedings be transferred to the Victoria Registry of...