mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60
Outcome: cited
The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance.
Case: Hall v Sheiban Pty Ltd (1989) 20 FCR 217
Outcome: cited
The submissions of the applicant in relation to these outstanding issues may be summarised as follows: 1. The courts have ordered apologies to be made in appropriate circumstances. 2. Damages should be compensatory and not punitive. Damages in this case should be decided in a manner akin to general principles laid down in Haines v Bendall [1991] HCA 15 ; (1991) 172 CLR 60 and Hall v Sheiban Pty Ltd (1989) 20 FCR 217. 3. In particular, the Court may order a respondent to pay damages by way of compensation for hurt feelings, humiliation and embarrassment suffered by the applicant as a result of unlawful discriminatory behaviour on the part of the respondent. In assessing the damages payable, in this case it is of relevance that: a. the applicant has a psychiatric disability b. the applicant was unable to access the respondent's health services on a number of occasions, something that would obviously cause distress to a person with the applicant's medical condition and needs c. the discrimination on the part of the respondent resulted in the applicant being unable to utilise the assistance of his dogs when he wished to access the respondent's services, even though the dogs assisted the applicant to alleviate the effects of his disability d. there was wilful disregard of the applicant's rights by the respondent e. the respondent is a State government, and therefore should exhibit exemplary behaviour f. the applicant had little option but to accept the behaviour/treatment dealt out to him by the respondent g. the hurt suffered by the applicant continues almost three years after the events in question. 4. Although each case turns on its own facts, a case such as Clarke v Catholic Education Offic e (2003) 202 ALR 340 is of some guidance. 15 There is no dispute that damages which can be awarded in these circumstances are compensatory, not punitive: Hall v Sheiban 20 FCR 217 at 282, Clarke 202 ALR 340 at 360. As Lockhart J pointed out in Hall v Sheiban at 239 damages awarded should be based on a comparison of the position that the applicant would have been in if he had not been subjected to the discriminatory acts of the respondent, with the position he is in as a result of those acts.
Case: Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343
Outcome: followed
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Jones v Toben [2002] FCA 1150
Outcome: followed
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55
Outcome: followed
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Leslie v Graham [2002] FCA 32
Outcome: considered
Clearly each case turns on its own facts, and Counsel acknowledged that damages awarded in other cases are of limited use only. Indeed, a review of cases where damages have been awarded in respect of discriminatory conduct reveal a considerable variance in the sums awarded. Relevant cases include the following: &#8226; in Clarke 202 ALR 340 a deaf child who had been refused enrolment at a religious school thereby removing him from his primary school peers and friends at the time of his transition to high school was awarded damages of $20,000 plus interest. Madgwick J was of the view that the child would have been distressed and confused by the events, and viewed the respondent's conduct as hurtful, but that the harm to the child was likely to have been transient and not extreme. The sum of $20,000 was described by Sackville and Stone JJ on appeal as "relatively modest": Catholic Education Office v Clarke [2004] FCAFC 197 ; (2004) 138 FCR 121 at 149 &#8226; in Commonwealth of Australia v Evans [2004] FCA 654 an intelligence analyst who was transferred to a position with lesser responsibilities because she was perceived as showing insufficient commitment to her work because she took time off to care for her sick child was awarded damages of $12,000 &#8226; in Leslie v Graham [2002] FCA 32 where the applicant was subject to extreme sexual advances by her employer in the middle of the night and subsequently suffered emotional trauma, the court awarded her $16,000 &#8226; in Sheehan [2002] FMCA 95 , a member of a club who was prevented from entering the club with an assistance dog not on a lead was awarded $1,500 damages &#8226; in Grovenor [2000] FCA 1574 a woman with a guide dog who was the subject of verbal abuse by the owner of a furniture store, and who subsequently suffered a skin rash related to her distress, was awarded $1,000 damages &#8226; in Haar v Maldon Nominees (2000) 184 ALR 83 a woman with a guide dog who sat in the "party area" of McDonalds, and was told by a member of the staff that it would be better if she sat elsewhere in the restaurant because of the presence of her dog, was awarded $3,000 damages in circumstances where the Federal Magistrate was satisfied that the incident had caused the applicant to have diminished self-worth which continued three years after the incident. 21 In my view the effects of this incident on the applicant cannot be compared with, for example, serious interruption to education ( Clarke 202 ALR 340) or emotional trauma and career impact as a result of sexual harassment ( Leslie [2002] FCA 32). However, in my view the public humiliation and embarrassment occasioned to the applicant was clearly more patent than in either Grovenor [2000] FCA 95 or Haar 184 ALR 83. I consider the sum of $5,000 appropriate compensation, and order that interest at the annual rate of 5% be payable on this sum pursuant to s 51A(1)(a) Federal Court of Australia Act 1976 (Cth) to be calculated from 16 November 2004 when the cause of action arose.
Case: McNamara v Golonaise Pty Ltd [2006] QADT 7
Outcome: cited
The submissions of the respondent in relation to these outstanding issues may be summarised as follows: 1. It is pointless forcing an apology, hence no order should be made in this respect. 2. With respect to an order for damages, the following issues are relevant: a. on 16 November 2004 the applicant was not seeking to access "health services", but rather was seeking to collect a document he had previously requested b. on only one of the five occasions that are the subject of the complaint concerning Smithfield Community Health Centre did the applicant leave the Centre without receiving dental treatment. Accordingly, it is not the case that he was unable to access health services or was denied such access c. the real issue for the applicant was that he was denied something he perceived to be his right d. there is no basis to submit that there was a wilful disregard of the applicant's rights by the respondent e. there is no evidence that the applicant continues to feel hurt f. it does not follow that the respondent did not act in an exemplary fashion. 3. The authorities relied on by the applicant do not support the award of an amount as high as $40,000, and the majority of the cases relied upon by the applicant can be distinguished because, for example, in this case there is no suggestion of any personal injury, nor was the respondent's conduct malicious. Relevant comparators are Sheehan v Tin Can Bay Country Club [2002] FMCA 95 , Grovenor v Eldridge [2000] FCA 1574 and McNamara v Golonaise Pty Ltd [2006] QADT 7. 4. The evidence does not support a finding that the applicant was "publicly humiliated", particularly in relation to events at Smithfield Community Health Centre. 5. Given the bona fides of the respondent, the comparatively minimal impact upon the applicant and the number and nature of the events that comprise the complaints, general damages should be in the amount of $5,000 in total.
Case: Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34
Outcome: cited
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931
Outcome: followed
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Zheng v Beamish [2004] FMCA 61
Outcome: cited
While courts in human rights cases have sometimes ordered that apologies be made (for example, De Simone v Bevacqua (unreported, Supreme Court of Victoria, McDonald J, 15 September 1994), Zheng v Beamish [2004] FMCA 61 , Oberoi v Human Rights and Equal Opportunity Commission [2001] FMCA 34) , like many other judges before me, I consider that a court-ordered apology serves little purpose: Jones on behalf of the Executive Council of Australian Jewry v The Bible Believers' Church [2007] FCA 55 at [65] , Rawcliffe v Northern Sydney Central Coast Area Health Service [2007] FMCA 931 at [101] , Jones v Toben [2002] FCA 1150 at [106] , Jones v Scully [2001] FCA 879 ; (2001) 113 FCR 343.
Case: Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795
Outcome: considered
Counsel for the appellants referred to the line of authority of which Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 are part. In effect, counsel for the appellants argued that the need, or perceived need, to be seen to restrict activities can itself amount to serious harm. That is not the basis on which those authorities turn. It is abundantly clear, particularly from the passages in [29] and [33] of Allsop J's reasons for judgment in Farajvand , as well as from the judgments in S395 itself, that a person will only be seen to have a well-founded fear of persecution if there is a need, or a perceived need, to curtail activities in order to avoid persecution. Given that s 91R of the Migration Act equates serious harm with persecution for this purpose, it will be necessary to show that a person must adopt, or perceives the need to adopt, restrictions on that person's activities in order to avoid serious harm. The imposition of restrictions on activities simply to avoid threats, or simply to avoid harm that does not amount to serious harm, will not itself become a form of serious harm. This position is confirmed by the very recent judgment of Dowsett J in SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 , especially at 74.
Case: Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473
Outcome: followed
Counsel for the appellants referred to the line of authority of which Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 are part. In effect, counsel for the appellants argued that the need, or perceived need, to be seen to restrict activities can itself amount to serious harm. That is not the basis on which those authorities turn. It is abundantly clear, particularly from the passages in [29] and [33] of Allsop J's reasons for judgment in Farajvand , as well as from the judgments in S395 itself, that a person will only be seen to have a well-founded fear of persecution if there is a need, or a perceived need, to curtail activities in order to avoid persecution. Given that s 91R of the Migration Act equates serious harm with persecution for this purpose, it will be necessary to show that a person must adopt, or perceives the need to adopt, restrictions on that person's activities in order to avoid serious harm. The imposition of restrictions on activities simply to avoid threats, or simply to avoid harm that does not amount to serious harm, will not itself become a form of serious harm. This position is confirmed by the very recent judgment of Dowsett J in SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 , especially at 74.
Case: SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258
Outcome: followed
Counsel for the appellants referred to the line of authority of which Farajvand v Minister for Immigration and Multicultural Affairs [2001] FCA 795 and Appellant S395/2002 v Minister for Immigration and Multicultural Affairs [2003] HCA 71 (2003) 216 CLR 473 are part. In effect, counsel for the appellants argued that the need, or perceived need, to be seen to restrict activities can itself amount to serious harm. That is not the basis on which those authorities turn. It is abundantly clear, particularly from the passages in [29] and [33] of Allsop J's reasons for judgment in Farajvand , as well as from the judgments in S395 itself, that a person will only be seen to have a well-founded fear of persecution if there is a need, or a perceived need, to curtail activities in order to avoid persecution. Given that s 91R of the Migration Act equates serious harm with persecution for this purpose, it will be necessary to show that a person must adopt, or perceives the need to adopt, restrictions on that person's activities in order to avoid serious harm. The imposition of restrictions on activities simply to avoid threats, or simply to avoid harm that does not amount to serious harm, will not itself become a form of serious harm. This position is confirmed by the very recent judgment of Dowsett J in SZDTM v Minister for Immigration and Citizenship [2008] FCA 1258 , especially at 74.
Case: A v Ipec Australia Ltd &amp; Crew [1973] VR 39
Outcome: distinguished
The applicants resist giving any further particulars as requested by the respondent on the ground that the whole of the article is defamatory and no further particulars need be given. The applicants contended that where a party asserts that the whole of an article is claimed to be defamatory of a plaintiff, the plaintiff need not give any further particulars of the words relied on for any imputation pleaded. The applicants relied upon a decision of Menhennett J in A v Ipec Australia Ltd &amp; Crew [1973] VR 39. In my opinion, that was a special case and does not indicate the usual rule as to pleading an imputation arising out of an article where the whole of the article is clearly not defamatory of the plaintiff.
Case: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
Outcome: cited
As I have said, paragraph 46 identifies the imputations which are said to arise in both the natural and ordinary meaning of the words, and by way of a true innuendo. It is necessary to give particulars of the facts and circumstances which are said to support a claim of libel which relies upon the true innuendo. The applicants have given particulars of those facts and circumstances, and there is no complaint about those particulars. There was no obligation at common law to plead particular imputations where the cause of action relies upon the natural and ordinary meaning of the words. However, in New South Wales there was an obligation to plead such imputations under the Defamation Act (1974) (NSW): s 9(2). More recently, it has become the practice in this State and other States in Australia to plead the imputations which are said to arise out of publication, even if those imputations are said to arise in the natural and ordinary meaning of the words: Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181. 49 In response to the respondent's request, the applicants provided a schedule which identified the particular documents in each of the paragraphs either for the plea that the imputation arises in the natural and ordinary meaning of the words or for the plea that the imputation arises by way of innuendo.
Case: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21
Outcome: referred to
The usual rule is that the respondent is entitled to particulars which require the applicants to identify the part or parts of the article which are alleged to be defamatory and which support the imputation pleaded: DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21 at 26. In that case Lord Denning MR said: In the second place, the pleading is defective because it throws--and I use that word deliberately--on to the defendants a long article without picking out the parts said to be defamatory. Some of the article is not defamatory of anyone at all. It describes only the method of importing drugs. Other parts of the article are defamatory of some unnamed chemists, but not of the plaintiffs at all. Yet other parts may be defamatory of the plaintiffs. To throw an article of that kind at the defendants and indeed at the court, without picking out the particular passages, is high embarrassing. Master Bickford Smith put it very sensibly: "It is tremendously embarrassing to claim the whole of the article as a libel. There is a tremendous amount of the article which is not defamatory of your clients. You must pick out the particular bits and rely on the rest as extrinsic or surrounding facts giving a defamatory meaning to the words." That ruling is in accord with the practice as it has been known for many years. The plaintiffs must specify the particular parts defamatory of them. For instance, in this particular case there is a reference to a "London-based operation." If the plaintiffs say that it means the plaintiffs, they should say so. They should insert "(meaning thereby the plaintiffs)." There is a reference to "the largest single network operating from a London suburb." Do they say that means the plaintiffs? If they do, they should put in "(meaning thereby the plaintiffs)." Such an exercise will be a great advantage to the plaintiffs themselves. It will make them clear their minds: and it will help the defendants too.
Case: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601
Outcome: cited
However, the applicants should be required to give particulars of the constructive knowledge which it is claimed the respondent had: Fox v H Wood (Harrow) Ltd [1963] 2 QB 601. 75 The claim that a party ought to have known something must depend upon objective facts and circumstances from which it may be concluded that the party should have acquired the knowledge alleged. The allegation that a party ought to have known something carries with it the claim that, notwithstanding the proven facts and circumstances, the party did not acquire that knowledge. A claim such as is made in this pleading that the respondent knew or ought to have known that the imputations were false means that the respondent either knew that the imputations were false or, by reason of the surrounding facts and circumstances, should have known that the imputations were false. 76 There will be an order therefore that the applicants give particulars of the facts and circumstances which allow it to be said that the respondent ought to have known that the imputations referred to in paragraph 46 of the statement of claim were untrue. 1.13 paragraph 43.1.3 (paragraph 49.1.3): the Applicants identify the actual words, and/or sentences of the defamatory statements, on which they base their stated allegation.