mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Bourke v State Bank of New South Wales (1988) 22 FCR 378
Outcome: cited
Bourke v State Bank of New South Wales (1988) 22 FCR 378 (at 394), Wilcox J held that the expression " the interests of justice " in s 5(4) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) ought to be read widely. His Honour referred to the need to consider all aspects of a matter including both substantive and adjectival matters and concluded by saying: It is not in "the interests of justice" to adopt a course, in relation to those matters, which places unnecessary burdens and delays upon the parties to the litigation. These ideas, although not directly applicable, are nevertheless apt to be applied in the present case. In summary, it seems to me, there is in reality no connection at all with New South Wales. There is nothing else which can fairly be weighed in the balance in favour of keeping the proceedings in this Registry of this Court. There are, on the other side of things, substantial reasons based upon the cost and inconvenience to individual litigants which would justify a transfer to the Queensland District Registry of this Court and I propose to make an order accordingly. It seems to me that the applicant was entitled to resist the application in the form in which it was pressed because the primary order sought was an order that the proceedings be transferred to the Supreme Court of Queensland. The third respondent has not persuaded me that such an order should be made. On the other hand, the applicant did resist the making of any orders. In those circumstances each of the relevant parties has experienced some success and some failure. It seems to me that the appropriate order as to the costs of the motion for transfer brought by the third respondent is that those costs be costs in the proceedings.
Case: National Mutual Holdings Pty Limited v Sentry Corporation (1988) 19 FCR 155
Outcome: applied
National Mutual Holdings Pty Limited v Sentry Corporation (1988) 19 FCR 155 , a Full Court of this Court held that the power conferred on the Court or a judge by s 48 was unfettered and should be exercised flexibly having regard to the circumstances of the particular case. The Court went on to say (19 FCR at 162): Ultimately the test is: where can the case be conducted or continued most suitably bearing in mind the interests of all the parties, the ends of justice in the determination of the issues between them, and the most efficient administration of the Court. It cannot and should not, in our opinion, be defined more closely or precisely. Other sources of the power to transfer a proceeding to another Registry of this Court are O 10 r 1(2)(f) and O 30 r 6 of the Federal Court Rules . The relevant guiding principles are the same under the Rules as under s 48 of the Act.
Case: Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550
Outcome: cited
seems to me that the approach of the High Court in Miah, and indeed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550, which was applied in Miah , makes this all too plain a case of a breach of the rules of procedural fairness. The material was crucial to the decision. Whilst it may not have been new in concept it did relate to a later period and amounted to the reason why the applications failed.
Case: Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57
Outcome: referred to
fundamental objection, however, was that the point had no merit and would not succeed. In my view, the point does have merit, and in the very unusual circumstances of this case, it seems to me that an amendment should be permitted along the lines read onto the record by the solicitor for the appellants. The argument has merit based upon the decision of the High Court in Re Minister for Immigration and Multicultural Affairs; Ex parte Miah [2001] HCA 22 ; (2001) 206 CLR 57, where in very similar circumstances, (that is, a change of position in the country of origin prior to the decision due to reliance by the delegate on new material and the appellant being given no opportunity to respond), the High Court had no difficulty in finding that there had been a breach of the rules of natural justice and procedural fairness. The main issue in that case was that by then there had been amendments to the Act which enabled an argument to be put that there was then a code for dealing with the situation and that the ordinary common law natural justice rules did not apply. That argument is not available in this case, because the amendments had not been made, so the common law rules clearly do apply. The answer which is made on behalf of the Minister is that in this case, all the issues raised in the later material to which reference was made by the Tribunal member were traversed in the earlier material and that the late material really amounted to pieces of evidence which were not required to be put forward for particular comment. There is also, I might say, always the argument that it is the visa applicant's case, and if circumstances change in the country of origin, then it is up to the applicant to keep on top of things and keep the Tribunal informed. It seems to me that the approach of the High Court in Miah, and indeed in Kioa v West [1985] HCA 81 ; (1985) 159 CLR 550, which was applied in Miah , makes this all too plain a case of a breach of the rules of procedural fairness. The material was crucial to the decision. Whilst it may not have been new in concept it did relate to a later period and amounted to the reason why the applications failed.
Case: Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510
Outcome: referred to
The discussion by the High Court in Thompson v Australian Capital Television [1996] HCA 38 ; (1996) 186 CLR 574 of subordinate dissemination is of particular interest (see Brennan CJ, Dawson and Toohey JJ at 585 590, Gaudron J at 591 596 and Gummow J at 617 620). That case concerned the liability of a television station that took to air a direct "feed" of a live current affairs show from another television station. The argument that it was a mere conduit failed. Emphasis was placed upon the choice made by that station to take a live current affairs program likely, to be controversial, directly to air without any editing or scrutiny. For an earlier, brave but unsuccessful, attempt to argue that a television station which puts a debate to air is not responsible for statements by participants see Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510.
Case: Bishop v State of New South Wales [2000] NSWSC 1042
Outcome: referred to
The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )
Case: Bunt v Tilley [2006] 3 All ER 336; [2006] EWHC 407 (QB)
Outcome: referred to
It was held in Bunt v Tilley [2006] 3 All ER 336; [2006] EWHC 407 (QB) that an Internet service provider that performed no more than a passive role in facilitating postings on the Internet and did not "host" the relevant website was not deemed to be a publisher at common law any more than a telephone company would be liable for defamation over the telephone. Godfrey [2001] QB 201 was distinguished.
Case: Byrne v Deane [1937] 1 KB 818
Outcome: referred to
In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user." 32 The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )
Case: Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380
Outcome: referred to
Universal Music Australia v Cooper Pty Ltd [2005] FCA 972 ; (2005) 150 FCR 1 dealt with infringement of copyright. The principal claims were based on infringement of copyright by a website that facilitated the free downloading of certain sound recordings. The first respondent was the registered owner and operator of the website. It contained hyperlinks to thousands of sound recordings which were located on remote websites and downloaded directly from those websites to the computer of the Internet user. The music file was not sent to, downloaded on, transmitted through or saved to the first respondent's website. The second to fifth respondents hosted the website and were responsible for maintaining the connection to the Internet. They were unaware of the contents of the website and took no steps to inform themselves of that content. Tamberlin J held that the first respondent infringed copyright by authorising the infringing acts of Internet users who accessed the website and the owners or operators of the remote website from which the infringing recordings were downloaded. He permitted and approved the infringements and had sufficient control over his website to prevent the infringements (150 FCR 1 at [77] [102]). The second to fifth respondents infringed the copyright by authorising the infringing acts (150 FCR 1 at [103] [132]). They had an active role in relation to the website, were aware of the content of the website and had the power to prevent the infringing acts. Those findings were substantially upheld on appeal, although an employee of the Internet service provider was let out ( Cooper v Universal Music Australia Pty Ltd [2006] FCAFC 187 ; (2006) 156 FCR 380 particularly per Branson J at [28] [52], [61] [65] and Kenny J at [136] [165]).
Case: Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352
Outcome: cited
The test or standard in s 18C(1)(a) of the Act is objective: see Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at 268-269; Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615 ; Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at [12] . It is for the Court to determine whether the act, in all the circumstances in which it was done, would be reasonably likely to offend, insult, humiliate or intimidate another person or a group of people of a particular racial, national or ethnic group: see Hagan [2000] FCA 1615 at [15] . As Hely J remarked in Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [99] : "it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question ... [but] evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible, on, but not determinative of, the issue of contravention."
Case: Dow Jones &amp; Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575
Outcome: cited
Material posted onto an Internet website may be seen to be published by the author when uploaded or posted onto a web server by or on behalf of the author and also by a person when downloaded onto the computer accessed by a person who has used a web browser to pull the material from the web server in comprehensible form. For the purposes of the law of defamation, publication is regarded as a bilateral, complete at the time of downloading Dow Jones &amp; Company Inc v Gutnick [2002] HCA 56 ; (2002) 210 CLR 575 at [25] [27], [40] and [44]). Gleeson CJ, McHugh, Gummow and Hayne JJ said (at [11]): " 'Publishing' and its cognate words is also a term that gives rise to difficulty. As counsel for the interveners pointed out it may be useful, when considering where something is published to distinguish between the (publisher's) act of publication and the fact of publication (to a third party), but even that distinction may not suffice to reveal all the considerations relevant to locating the place of the tort of defamation."
Case: Frawley v State of New South Wales [2006] NSWSC 248
Outcome: referred to
The ability to prevent publication or the continuance of publication in the context of defamation as applied in Godfrey [2001] QB 201was based in part upon Byrne v Deane [1937] 1 KB 818. That case concerned liability of a golf club for a defamatory note on the golf club notice board. That principle, as it applied in defamation, was analysed with some care by Hunt J of the Supreme Court of New South Wales in Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports 81-127. It was concluded that it was necessary for the plaintiff to establish that the defendant had, in fact, accepted responsibility for continued publication by consenting to, approving of, adopting or promoting or in some way ratifying the continued publication. Such accepted responsibility could be established by inference. That case involved someone else's defamatory statement being attached to the defendant's property. (See also Bishop v State of New South Wales [2000] NSWSC 1042 and Frawley v State of New South Wales [2006] NSWSC 248 . )
Case: Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615
Outcome: cited
The test or standard in s 18C(1)(a) of the Act is objective: see Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at 268-269; Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615 ; Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at [12] . It is for the Court to determine whether the act, in all the circumstances in which it was done, would be reasonably likely to offend, insult, humiliate or intimidate another person or a group of people of a particular racial, national or ethnic group: see Hagan [2000] FCA 1615 at [15] . As Hely J remarked in Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [99] : "it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question ... [but] evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible, on, but not determinative of, the issue of contravention."
Case: Jones v The Bible Believers' Church [2007] FCA 55
Outcome: followed
At all material times, the Messages on the Forum were able to be downloaded and received by any member of the public without restriction. The uploading or posting of the Messages by the second respondent was an act of publication done by him. Branson J held in Jones v Toben [2002] FCA 1150 , (2002) 71 ALD 629 at [73] [75] that: "the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publications, in that it allows individuals to access the website with a browser to read that text and see those graphics." That was unaffected by the appeal ( Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515). That act plainly caused words to be communicated to the public within s 18C(2)(a) and so was not in private. (See also Conti J in Jones v The Bible Believers' Church [2007] FCA 55.)
Case: Jones v Toben [2002] FCA 1150 , (2002) 71 ALD 629
Outcome: followed
At all material times, the Messages on the Forum were able to be downloaded and received by any member of the public without restriction. The uploading or posting of the Messages by the second respondent was an act of publication done by him. Branson J held in Jones v Toben [2002] FCA 1150 , (2002) 71 ALD 629 at [73] [75] that: "the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publications, in that it allows individuals to access the website with a browser to read that text and see those graphics." That was unaffected by the appeal ( Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515). That act plainly caused words to be communicated to the public within s 18C(2)(a) and so was not in private. (See also Conti J in Jones v The Bible Believers' Church [2007] FCA 55.)
Case: Jones v Scully [2002] FCA 1080 ; (2001) 120 FCR 243
Outcome: cited
The test or standard in s 18C(1)(a) of the Act is objective: see Jones v Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at 268-269; Hagan v Trustees of Toowoomba Sports Grounds Trust [2000] FCA 1615 ; Creek v Cairns Post Pty Ltd [2001] FCA 1007 ; (2001) 112 FCR 352 at [12] . It is for the Court to determine whether the act, in all the circumstances in which it was done, would be reasonably likely to offend, insult, humiliate or intimidate another person or a group of people of a particular racial, national or ethnic group: see Hagan [2000] FCA 1615 at [15] . As Hely J remarked in Scully [2002] FCA 1080 ; (2002) 120 FCR 243 at [99] : "it is not necessary for an applicant to prove that any person was actually offended, insulted, humiliated or intimidated by the conduct in question ... [but] evidence, for example, that a member of a particular racial group was offended by the conduct in question would be admissible, on, but not determinative of, the issue of contravention."
Case: Kaplan v Go Daddy Group [2005] NSWSC 636
Outcome: referred to
In Kaplan v Go Daddy Group [2005] NSWSC 636 White J, in an interlocutory decision, speaking of comments disparaging of a business posted on a website said (at [32] [33]): "There is also a serious question to be tried that he was the author of the other headings and comments on the site to which I have referred. Even if he was not the author of those headings and comments, there is still a serious question to be tried as to whether he published the statements which appeared on the site. He established the site and thereby invited disparaging comments. He maintained some control over the site. He said that he, along with anyone else, could remove any of the comments from the site. The extent of his control over what was, or was not, published, was not fully explored, but it is seriously arguable that he was at least as much in control of the site and responsible for what appeared on it as was the internet service provider in Godfrey v Demon Internet Ltd [2001] QB 201 ; [1999] 4 All ER 342, or the proprietors and secretary of a golf club which allowed a defamatory statement to remain on a notice board in Byrne v Deane [1937] 1 KB 818; 2 All ER 204. In Godfrey v Demon Internet Ltd , it was held that an internet service provider was a publisher at common law of the defamatory comments posted on the site by an unknown user."
Case: Thompson v Australian Capital Television [1996] HCA 38 ; (1996) 186 CLR 574
Outcome: applied
The discussion by the High Court in Thompson v Australian Capital Television [1996] HCA 38 ; (1996) 186 CLR 574 of subordinate dissemination is of particular interest (see Brennan CJ, Dawson and Toohey JJ at 585 590, Gaudron J at 591 596 and Gummow J at 617 620). That case concerned the liability of a television station that took to air a direct "feed" of a live current affairs show from another television station. The argument that it was a mere conduit failed. Emphasis was placed upon the choice made by that station to take a live current affairs program likely, to be controversial, directly to air without any editing or scrutiny. For an earlier, brave but unsuccessful, attempt to argue that a television station which puts a debate to air is not responsible for statements by participants see Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510.
Case: Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515
Outcome: referred to
At all material times, the Messages on the Forum were able to be downloaded and received by any member of the public without restriction. The uploading or posting of the Messages by the second respondent was an act of publication done by him. Branson J held in Jones v Toben [2002] FCA 1150 , (2002) 71 ALD 629 at [73] [75] that: "the act of placing text and graphics on a website which is not password protected is an act of publication, or perhaps more accurately an act which causes repeated publications, in that it allows individuals to access the website with a browser to read that text and see those graphics." That was unaffected by the appeal ( Toben v Jones [2003] FCAFC 137 ; (2003) 129 FCR 515). That act plainly caused words to be communicated to the public within s 18C(2)(a) and so was not in private. (See also Conti J in Jones v The Bible Believers' Church [2007] FCA 55.)