mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bryanston Finance Ltd v de Vries [1975] 1 QB 703
Outcome: referred to
seems to me that the communication by the second respondent of the ATO letter to the Australian Taxation Office at the request of the third respondent was protected by qualified privilege. Just as a communication to the Australian Securities and Investments Commission about maladministration, incompetence or possible dishonesty within a company would be protected by qualified privilege (see per Lawton LJ in Bryanston Finance Ltd v de Vries [1975] 1 QB 703 at 736) so also, in my opinion, would a communication such as the ATO letter be protected by qualified privilege, subject to the possible loss of such privilege due to malice on the part of the second or third respondents that may be proved by the applicants. It is apparent from the terms of the ATO letter itself that the second respondent was not well disposed towards the second and third applicants. One might say that he was personally aggrieved by their conduct in relation to the affairs of the first applicant. However, I do not consider that the communication by the second applicant of the ATO letter was other than for the common convenience and welfare of society. It was not actuated by a desire to injure the second and third applicants. The occasion for the qualified privilege had not been misused by the second respondent. I do not consider that the second respondent was actuated by malice in sending the ATO letter to the Australian Taxation Office. In my opinion the second respondent's conduct in publishing the ATO letter was reasonable in the circumstances within the meaning of s 22(1)(c) of the Defamation Act 1974 (NSW).
Case: Bellino v Australian Broadcasting Corporation [1995] HCA 34 ; (1996) 185 CLR 183
Outcome: referred to
Bellino v Australian Broadcasting Corporation [1995] HCA 34 ; (1996) 185 CLR 183 at 221, Dawson, McHugh and Gummow JJ considered that the discussion of the conduct of any person holding public office, participating in the administration of justice or public affairs, offering goods or services to the public or otherwise engaging in public conduct that invites public criticism or discussion came within the term 'subject of public interest' within the meaning of the Criminal Code Act 1899 (Qld). I do not consider that imputations contextual to the imputations complained of which related to persons associated with the first applicant as a supplier of automotive glass products to the public, related to a matter of public interest. Furthermore, even though the contextual imputations relied upon, or some of them, may have been matters of substantial truth, I consider that the imputations complained of would further injure the reputations of the second and third applicants in the estimation of right-thinking members of society generally. In my opinion the contextual imputation defences under s 16 of the Defamation Act 1974 (NSW) fail.
Case: Carson v John Fairfax &amp; Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44
Outcome: referred to
three purposes to be served by an award of damages for defamation were identified in the joint reasons of Mason CJ, Deane, Dawson and Gaudron JJ in Carson v John Fairfax &amp; Sons Limited [1993] HCA 31 ; (1993) 178 CLR 44 ('Carson') at 60: (i) consolation for the personal distress and hurt caused to the relevant applicant by the publication; (ii) reparation for harm done to the relevant applicant's personal and, where appropriate, professional, reputation; and (iii) vindication of the relevant applicant's reputation. As pointed out in Carson the first two purposes are frequently considered together and constitute consolation for the wrong done to the relevant applicant. Vindication looks to the relevant attitude of others (per Hayne J in Rogers v Nationwide News Pty Limited [2003] HCA 52 ; (2003) 216 CLR 327 ('Rogers') at [60]; see also at [35]).
Case: Random House Australia Pty Ltd v Abbott [1999] FCA 1538 ; (1999) 167 ALR 224
Outcome: referred to
Random House Australia Pty Ltd v Abbott [1999] FCA 1538 ; (1999) 167 ALR 224 a Full Court comprising Beaumont, Miles and Drummond JJ considered awards of damages that had been made in respect of a book entitled 'Goodbye Jerusalem: Night Thoughts of a Labor Outsider' written by Mr Bob Ellis and published by Random House Australia Pty Ltd. In that case modest amounts had been awarded by the Primary Judge by way of compensatory and aggravated damages broken down as to damages for injury to reputation, damages for injury to feelings and aggravated damages. One matter which was addressed on the hearing of the appeal was the relevance of a defendant's failure to apologise in determining both ordinary compensatory damages and aggravated compensatory damages. The Court held that a failure to apologise could be taken into account on both aspects of the matter.
Case: Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Outcome: referred to
reaching these determinations as to the amounts to be awarded by way of damages I have had regard to the principles enunciated by Beazley, Giles and Santow JJA in Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419 ('Marsden') at [1313] et seq. In dealing with damage to reputation their Honours said at [1370] that, in fulfilling the purpose of reparation for harm done to, and vindication of, reputation, it is necessary to know the reputation said to have been injured. In principle, a plaintiff with a bad reputation will be entitled to lower damages than a plaintiff with a high reputation, because the injury to the reputation will be less if the reputation is already diminished. In this regard it is important to remember that reputation is to be contrasted with character, that is, what a person is as distinct from what other people think of the person, but 'character' can properly be used in the same sense as 'reputation'. Exemplary damages depart from the notion of compensation. They are separately assessed, and their purpose is to punish a respondent and teach a respondent that defaming an applicant does not pay. In assessing compensatory damages a jury must consider how much an applicant ought to receive whereas in assessing punitive damages a jury must consider how much a respondent ought to pay. Exemplary damages may be awarded, for example, when a newspaper respondent chooses to publish without belief in the truth of what it publishes because circulation will rise and enough money will be made to offset any damages, in the traditional words 'in contumelious disregard' of the applicant's rights (see per Beazley, Giles and Santow JJA in Marsden at [1317] and [1473]). In my opinion, publication by the third respondent of the 13 September facsimile on behalf of the first respondent did not demonstrate a contumelious disregard of the rights of the second and third applicants. It is apparent that the third respondent had a conviction that the second and third applicants had defrauded the Australian Taxation Office in relation to the disclosure of the taxable income of the first applicant. I do not consider the circumstances to be such as to warrant the imposition of exemplary damages in respect of publication of the 13 September facsimile in jurisdictions other than New South Wales.
Case: Wishart v Mirror Newspapers Ltd (1963) 63 SR (NSW) 745
Outcome: referred to
knowledge that an applicant has a criminal record among the section of the community in which it is claimed that a defamatory imputation has been published forms part of an applicant's general reputation, which is of necessity brought into the field of relevancy by a claim by the applicant that his or her reputation has been injured (see per Hardie J in Wishart v Mirror Newspapers Ltd (1963) 63 SR (NSW) 745 at 756-7). As I understand the Defence to Third Further Amended Statement of Claim, the first and third respondents' case in respect of mitigation of damages was directed at the relevance of harm to reputation in the context of a person with a bad reputation. In the absence of evidence as to the reputation of the second and third applicants and having regard to the notoriety that would surround their convictions for very serious customs fraud offences, the clear inference is that they were people with diminished reputations as at September 2005. I now turn to the question of exemplary damages outside of New South Wales.
Case: Gray v Motor Accident Commission [1998] HCA 70 ; (1998) 196 CLR 1
Outcome: referred to
damages are awarded rarely. They recognise and punish fault, but not every finding of fault warrants their award. Something more must be found. (See per Gleeson CJ, McHugh, Gummow and Hayne JJ in Gray v Motor Accident Commission [1998] HCA 70 ; (1998) 196 CLR 1 at [12] and [20]).
Case: John Fairfax &amp; Sons Ltd v Kelly (1987) 8 NSWLR 131
Outcome: applied
proper approach to the determination of interest up to judgment in a defamation case was considered by McHugh JA, as his Honour then was, in John Fairfax &amp; Sons Ltd v Kelly (1987) 8 NSWLR 131. Kirby P, as his Honour then was, agreed with McHugh JA's reasons in that case.
Case: Akai Pty Ltd v Peoples Insurance Co Limited [1998] 1 Lloyd's Rep 90
Outcome: discussed
Exhibit A before me is the judgment of Thomas J in Akai Pty Ltd v Peoples Insurance Co Limited [1998] 1 Lloyd's Rep 90. In that case his Lordship concluded that Peoples Insurance had not submitted to the jurisdiction of the courts of New South Wales. He held that the judgment of the High Court of Australia ( Akai Pty Ltd v Peoples Insurance Co Ltd [1996] HCA 39 ; (1996) 188 CLR 418) was not one that was recognised as giving rise to a decision binding on Peoples Insurance in accordance with the rules of private international law operative in England. He concluded that because the parties had freely bargained for the English choice of law and jurisdiction clauses, that bargain should be upheld, unless there were strong reasons for not doing so and should not as a matter of comity give effect to the decision of the High Court of Australia which overrode that bargain and that choice ([1998] 1 Lloyd's Rep at 100). The effect of allowing the Australian proceedings to proceed, his Lordship held, would deprive Peoples Insurance of the results of that bargain by imposing a set of statutory provisions which made the contract much less favourable to the insurer than English law provided. 18 I am of opinion that those threats clearly conveyed that on the basis of English law as evidenced in Akai Pty Ltd v People's Insurance Co Ltd [1998] 1 Lloyd's Rep 90, the owners would seek to enjoin the further progress of these proceedings and the issue of any statement of claim pursuant to r 22 of the Admiralty Rules . 19 The basis on which the plaintiff seeks an injunction is, in effect, to preserve the subject matter of such rights as the plaintiff may have, having regularly invoked, as the concession of the unconditional appearance demonstrates, the jurisdiction of this court to decide the in rem proceedings. 20 The power of the court to protect its own processes is one that is not susceptible of definition in closed categories. The purpose for which the court, as a superior court of record, has inherent powers is to protect its processes is so that, inter alia, all persons may approach the court and so that its jurisdiction may be not merely invoked but exercised where it exists. 31 If the defendant were permitted to bring injunctive proceedings in London then on the evidence before me, which is uncontested, it is highly likely that the Commercial List Judge would grant an injunction on the basis and for similar reasons to that granted by Thomas J in Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyd's Rep 90. If that were to happen then these proceedings would be unable to be pursued by the plaintiff at all and such rights as the plaintiff may have under the laws passed by the Parliament of the Commonwealth, and which the public policy of this nation regards as being ones which ought to be able to be availed of by persons who come before courts in this country, will be set at nought.
Case: Akai Pty Ltd v Peoples Insurance Co Ltd [1996] HCA 39 ; (1996) 188 CLR 418
Outcome: discussed
Exhibit A before me is the judgment of Thomas J in Akai Pty Ltd v Peoples Insurance Co Limited [1998] 1 Lloyd's Rep 90. In that case his Lordship concluded that Peoples Insurance had not submitted to the jurisdiction of the courts of New South Wales. He held that the judgment of the High Court of Australia ( Akai Pty Ltd v Peoples Insurance Co Ltd [1996] HCA 39 ; (1996) 188 CLR 418) was not one that was recognised as giving rise to a decision binding on Peoples Insurance in accordance with the rules of private international law operative in England. He concluded that because the parties had freely bargained for the English choice of law and jurisdiction clauses, that bargain should be upheld, unless there were strong reasons for not doing so and should not as a matter of comity give effect to the decision of the High Court of Australia which overrode that bargain and that choice ([1998] 1 Lloyd's Rep at 100). The effect of allowing the Australian proceedings to proceed, his Lordship held, would deprive Peoples Insurance of the results of that bargain by imposing a set of statutory provisions which made the contract much less favourable to the insurer than English law provided. 31 If the defendant were permitted to bring injunctive proceedings in London then on the evidence before me, which is uncontested, it is highly likely that the Commercial List Judge would grant an injunction on the basis and for similar reasons to that granted by Thomas J in Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyd's Rep 90. If that were to happen then these proceedings would be unable to be pursued by the plaintiff at all and such rights as the plaintiff may have under the laws passed by the Parliament of the Commonwealth, and which the public policy of this nation regards as being ones which ought to be able to be availed of by persons who come before courts in this country, will be set at nought.
Case: Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27
Outcome: followed
In Batistatos v Roads and Traffic Authority of New South Wales [2006] HCA 27 Gleeson CJ and Gummow, Hayne and Crennan JJ said at [9]: 'What amounts to abuse of court process is insusceptible of a formulation comprising closed categories. Development continues. One example is the line of authority dealing with the stay of proceedings instituted in a second forum where there are pending proceedings in another forum and the continuance of the second proceedings would be an abuse of the process of the first forum ( Logan v Bank of Scotland (No 2) [1906] 1 KB 141; Maritime Insurance Co Ltd v Geelong Harbor Trust Commissioners [1908] HCA 37 ; (1908) 6 CLR 194; Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 ; (1988) 165 CLR 197; Voth v Manildra Flour Mills Pty Ltd [1990] HCA 55 ; (1990) 171 CLR 538). Again, in Cardile v LED Builders Pty Ltd ((1999) [1999] HCA 18 ; 198 CLR 380 at 393 [25] ), Gaudron, McHugh, Gummow and Callinan JJ referred to the passage in the joint judgment in CSR Ltd v Cigna Insurance Australia Ltd ((1997) [1997] HCA 33 ; 189 CLR 345 at 391) where it was said of the grant of an anti-suit injunction that the counterpart of the power of a court to prevent the abuse of its processes was the power of the court to protect the integrity of those processes once set in motion.'
Case: Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1
Outcome: referred to
This court has recognised that rights granted to parties under the Trade Practices Act 1974 (Cth) are important considerations in determining whether or not stays should be granted under s 7 of the International Arbitration Act 1974 (Cth) and under contractual arrangements for arbitrations or choice of law or jurisdiction in other jurisdictional areas. Allsop J recently affirmed these matters in Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Limited [2005] FCA 1102 at [73] ; see also at [71]-[74] and [110]-[111]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 7 and 23-24.
Case: Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146
Outcome: referred to
The proceedings were brought on quickly and the ship was arrested just immediately before its detention by the authorities was about to cease. Since then the solicitors have concentrated on the agitation of the inter-jurisdictional dispute. In Queensland v JL Holdings Pty Ltd [1997] HCA 1 ; (1997) 189 CLR 146 at 152-155, 164-165, the High Court made it quite clear that the pleadings and the rules were not the masters but were the servants of the interests of justice. If by oversight, or because of pressure of time, or otherwise the plaintiff has not hitherto been able clearly to articulate a formulated cause of action which could be maintained in this court but may not be able to be maintained in English courts, there should be some recognition that this court should allow its procedures to be invoked in a regular way and in a way in which rights, that do exist under Australian law, can be articulated and recognised. 35 I was of opinion that in order to protect the processes of this court and its ability to hear and determine what appears to me to be a bona fide dispute between these parties that the injunctive relief that I granted earlier this afternoon was appropriate. While ordinarily one would expect to see the precise definition of the issues in dispute and the controversy for the purposes of identifying the relevant constitutional matter under Chapter III of the Constitution of the Commonwealth in pleadings, r 22 of the Admiralty Rules recognises that indeed such a course is likely not to occur necessarily immediately the writ is issued. That is why there is a provision for time to be given to a plaintiff, after the writ in rem has issued, and after the defendant has appeared to it, to put on a statement of claim in personam.
Case: Raymond v Honey [1981] UKHL 8 ; [1983] 1 AC 1
Outcome: applied
Just as the court can protect the efficacy of execution in proceedings which it has not yet decided, it can also protect the ability of persons to approach the court who seek the regular invocation and exercise of its jurisdiction. The law of contempt both in England and Australia enables courts to grant injunctions to protect the administration of justice by protecting them from interferences by outside influences. So, in Raymond v Honey [1981] UKHL 8 ; [1983] 1 AC 1 at 10D Lord Wilberforce said: '... any act which is calculated to obstruct or interfere with the due course of justice, or the lawful process of the court is a contempt of court.' 24 His Lordship held ([1983] 1 AC at 13C) that the actions of prison officers in interfering with the plaintiff's mail by stopping him applying to the High Court in England even though it was only a temporary interference was a contempt. 25 In my opinion it is part of the court's inherent power to protect the efficacy of proceedings already on foot which the Admiralty Rules contemplate can be supplemented by the pleading of a statement of claim. That may include in personam claims and other claims outside those contemplated under the Admiralty Act 1988 (Cth). These proceedings, which have been regularly instituted should not be interfered with peremptorily by the threats which the defendant has made to enjoin the plaintiff from proceeding with its rights to invoke and have the court exercise its judicial power.
Case: Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511
Outcome: referred to
In Re Wakim; Ex parte McNally [1999] HCA 27 ; (1999) 198 CLR 511 at 585 [139] Gummow and Hayne JJ with whom, Gleeson CJ and Gaudron J, expressly agreed (198 CLR at 546 [25], [26]) said that: 'The central task was to identify the justiciable controversy. In civil proceedings that will ordinarily require close attention to the pleadings (if any) and to the factual basis of each claim.' 37 Having regard to the facts articulated in the evidence before me, the factual basis of the claims demonstrate that there is the potential for a controversy that will invoke or be capable of invoking relief under the Trade Practices Act 1974 (Cth) at the very least, in addition to whatever contractual remedies might be available. In my opinion, the plaintiff ought to have a reasonable opportunity in order to do so. 38 No serious opposition was made by the defendant to the application of the plaintiff that it should be allowed till 5 July 2006 in order to put on a statement of claim were I otherwise to grant an interim injunction. I took the view that the interim injunction that I was minded to grant was one to preserve a particular subject matter, namely, the ability of the plaintiff to invoke and have the court exercise jurisdiction under Acts of the Commonwealth that would not be recognised in English proceedings and which it would then be prevented from being able to litigate. Inter alia, there was the potential, as adverted to by counsel for the plaintiff, of involving brokers as third parties or defendants to the proceedings in personam and that was another consideration that I had in mind when granting the order.
Case: Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Limited [2005] FCA 1102
Outcome: referred to
This court has recognised that rights granted to parties under the Trade Practices Act 1974 (Cth) are important considerations in determining whether or not stays should be granted under s 7 of the International Arbitration Act 1974 (Cth) and under contractual arrangements for arbitrations or choice of law or jurisdiction in other jurisdictional areas. Allsop J recently affirmed these matters in Walter Rau Neusser Oel und Fett AG v Cross Pacific Trading Limited [2005] FCA 1102 at [73] ; see also at [71]-[74] and [110]-[111]; Hi-Fert Pty Ltd v Kiukiang Maritime Carriers Inc (No 5) (1998) 90 FCR 1 at 7 and 23-24.
Case: Attorney General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1
Outcome: referred to
This passage suggests that the AAT was influenced by some notion of estoppel on the part of the applicant, based upon its disapproval of Centrelink's failure to form the requisite opinion, and act upon it. If so, there is no justification for that approach: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 per Gummow J, and Attorney General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 18 per Mason CJ. See generally M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3 rd ed, 2004) at 359-64. It may be noted that there is no suggestion in the present case of any abuse of power, or breach of promise, on the part of the applicant.
Case: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93
Outcome: referred to
This passage suggests that the AAT was influenced by some notion of estoppel on the part of the applicant, based upon its disapproval of Centrelink's failure to form the requisite opinion, and act upon it. If so, there is no justification for that approach: Minister for Immigration, Local Government and Ethnic Affairs v Kurtovic (1990) 92 ALR 93 per Gummow J, and Attorney General (NSW) v Quin [1990] HCA 21 ; (1990) 170 CLR 1 at 18 per Mason CJ. See generally M Aronson, B Dyer and M Groves, Judicial Review of Administrative Action (3 rd ed, 2004) at 359-64. It may be noted that there is no suggestion in the present case of any abuse of power, or breach of promise, on the part of the applicant.