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Harassing Facebook messages can lead to a defamation case in the Federal Court

Malcolm Campbell, ||

The case of Mulley v Hayes [2021] FCA 1111 raises issues regarding the jurisdiction of the Federal Court in defamation matters. More specifically, the case concerns not simply whether there is a matter in federal jurisdiction, but rather whether there is a proceeding relating to a matter, which attracts the subject-matter jurisdiction of the Federal Court.

The Facts

The applicant is a resident in New South Wales and the respondent is a resident in Queensland. Due to the matter falling between residents of different States, the meaning of s75(iv) of the Constitution applies. Consequently, the matter certainly falls within the parameters of federal jurisdiction. Despite this, the clauses of s75(iv) of the constitution do not answer whether the Federal Court has authority to decide the matter due to there being no general conferral of this diversity jurisdiction on the Federal Court.

The preliminary facts of the case involve the sending of messages on “Facebook Messenger”. The first message was sent on 10 January 2020 by the respondent (Mr Hayes) to the applicant (Mr Mulley) which allegedly harassed Mr Mulley. This messaged formed the fourth aspect of the applicants statement of claim whereby Mr Mulley has characterised the sending of both the January message and the February message as unlawful, amounting to conduct contrary to s 474.17 of the Criminal Code (being in the Schedule to the Criminal Code Act 1995 (Cth).

The second message was sent on 6 February 2020 by Mr Hayes to Mrs Mulley, the wife of Mr Mulley. The second message formed the basis for the third aspect of the applicants amended statement of claim which specifies that the February message was defamatory in nature as it was said to carry an accusation that Mr Mulley is a paedophile.

It becomes obvious that the fourth claim has, as its foundation, an allegation of a breach of a criminal norm contained in a law of the Parliament and therefore is a distinct cause of action from a tort concerned with damage to reputation. Therefore, the question that arises is: whether the assertion of this novel common law action on the case by Mr Mulley means the Federal Court has subject-matter jurisdiction to quell the dispute.


Lee J held that the interpretation or application of an aspect of a Commonwealth law need not be in dispute for federal jurisdiction to exist. Therefore, the jurisdiction of the Federal Court has been appealed.


Within his discourse, Lee J fundamentally explains that there is a difference between a matter “arising under” a law of the Parliament and a matter that merely involves the interpretation of a federal law (and which will not on its own attract federal jurisdiction). Within this distinction, Lee J considers the case of LNC Industries v BMW (Australia) Ltd (1983) 151 CLR 575[1] which specifies that a matter can arise under a federal law if the right or duty in question in the matter owes its existence to federal law or alternatively, depends upon federal law for its enforcement.

Turning to the specifics of the case, Lee J addressed the three arguments Mr Hayes made regarding the scope of the matter.

Within his first submission, Mr Hayes contended that because Mr Mulley’s claims involve different publications, different recipients, and different dates, they should be considered completely disparate claimsLee J found that although only the February message is said to give rise to a claim in defamation, both publications are said to give rise to a tortious claim on the basis of unlawful conduct. The claims cannot be described as distinct and unrelated, and are, therefore, non-severable.

Secondly, Mr Hayes submitted that the Court cannot determine Mr Mulley’s fourth claim of tortious liability without a determination of unlawfulness at first instance.  Lee J rejected this proposition on the basis that the unlawfulness alleged is an element in the proof of a civil cause of action and would entail a determination being made on the balance of probabilities in a civil case.

The third point was directed towards whether there was a factual overlap in the claims, specifically whether the February message raised a claim in defamation and a claim in tortious liability for unlawful conduct. Lee J explained that once a federal claim is made, regardless of its plausibility, the whole matter in which that claim is made is within federal jurisdiction. Hence, even if the common law of Australia does not recognise the tort alleged or the facts proved prevent it from being maintained, the Court’s jurisdiction has been properly invoked, provided Mr Mulley’s claim of civil liability was made in good faith.  Indeed, Lee J found that there was no basis to find that Mr Mulley was motivated in bringing the fourth claim by anything other than the proper purpose of attempting to recover common law damages for harm caused by the alleged unlawful conduct and therefore his claim was not colourable nor artificial.

In the light of the above, it is established that a matter including the claim for damages for defamation and for damages based on an action on the case (whatever their merits), is wholly within federal jurisdiction.

What does this tell us?

This decision is illustrative of the Federal Courts jurisdiction to hear a wide range of defamation disputes. It confirms the increasing flexibility afforded to litigants in being able to elect the federal court to hear matters that involve a claim for damages for defamation and for damages based on an action on the case, if they arise out of a common substratum of facts.


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