mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Macintosh v Dun [1908] UKPCHCA 3 ; (1908) 6 CLR 303 ; [1908] AC 390
Outcome: distinguished
referred to Veda's pleaded defence of qualified privilege at [116] above. The applicants submit that publication by Veda was not made on an occasion of qualified privilege. They rely on Macintosh v Dun [1908] UKPCHCA 3 ; (1908) 6 CLR 303 ; [1908] AC 390. Veda submits that Macintosh v Dun was wrongly decided and should not be followed. I turn now to Macintosh v Dun [1908] UKPCHCA 3 ; (1908) 6 CLR 303 ; [1908] AC 390. On appeal, the Privy Council ([1908] AC 390 at 400) referred to the facts that: Their Lordships identified "the real question" as being whether it was "in the interests of the community" and "for the welfare of society" that the protection that the law gave to communications made in legitimate self-defence or from a bona fide sense of duty "should be extended to communications made from motives of self-interest by persons who trade for profit in the characters of other people" (at 400). Answering this question "no", they added: But information such as that which [the defendants] offer for sale may be obtained in many ways, not all of them deserving of commendation. It may be extorted from the person whose character is in question through fear of misrepresentation or misconstruction if he remains silent. It may be gathered from gossip. It may be picked up from discharged servants. It may be betrayed by disloyal employees. It is only right that those who engage in such a business, touching so closely very dangerous ground, should take the consequences if they overstep the law.
Case: Petition of Retailers Commercial Agency Inc , 174 NE 2d 376 (Mass., 1961)
Outcome: cited
v Dun does not represent, even at a minimum,the predominant view of the law in the United States: see 15A Am Jur 2d, Collections and Credit Agencies , &#167; 28 and Petition of Retailers Commercial Agency Inc , 174 NE 2d 376 (Mass., 1961). The United States position is summarised in American Jurisprudence 2d in the paragraph cited (footnotes omitted): Though there is authority to the contrary, reports of mercantile or other credit-reporting agencies, furnished in good faith to one having a legitimate interest in the information, are privileged. On the other hand, the decision in Macintosh v Dun was applied in Canada in Gillett v Nissen Volkswagen [1975] 3 WWR 520; 58 DLR (3d) 104, and see Informa Confidential Reports (Pty) Ltd v Abro , [1975] (2) S.A. 760.
Case: State of Victoria v Commonwealth [1937] HCA 82 ; (1937) 58 CLR 618
Outcome: cited
parties are agreed that I ought not to decide the constitutional question unless I first find that a cause of action under the Defamation Act has been made out. The theoretical availability of such a cause of action does not in itself result in inconsistency for the purposes of s 109: see State of Victoria v Commonwealth [1937] HCA 82 ; (1937) 58 CLR 618. Since I have decided to dismiss all nine proceedings including the claims of defamation, on other grounds stated above, I will say nothing further on the present issue. For the reasons given above, all nine proceedings will be dismissed with costs except the costs of the unresolved constitutional issue, as to which there will be no order for costs. I certify that the preceding five hundred and ninety-six (596) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Lindgren. Associate: Dated: 1 April 2009 In each proceeding : Counsel for the Applicant: Mr T S Hale SC and Mr P W Bates Mr D F C Thomas (on 1 April 2008 alone, when the constitutional issue was argued) Solicitor for the Applicant: Gerard Malouf &amp; Partners Counsel for the Respondent: Mr B R McClintock SC and Mr M S White Solicitor for the Respondent: Ebsworth &amp; Ebsworth Lawyers Counsel for the intervener, the Attorney-General for the State of New South Wales: Mr M G Sexton SC SG and Ms K M Richardson (Ms Richardson appeared on 1 April 2008 when the constitutional issue was argued) Dates of Hearing: 10, 17, 18, 19, 20, 25, 26, 27, 28 March; and 1, 21, 24 April 2008 Date last submission received: 6 May 2008 Date of Judgment: 1 April 2009 ANNEXURE AustLII: Copyright Policy | Disclaimers | Privacy Policy | Feedback URL: http://www.austlii.edu.au/au/cases/cth/FCA/2009/305.html
Case: Toogood v Spyring (1834) 1 Cr M &amp; R 181 (149 ER 1044)
Outcome: discussed
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5 ; (2004) 218 CLR 366 ( Bashford ), Gleeson CJ, Hayne and Heydon JJ said in a joint judgment that the principles to be applied in determining whether an occasion of publication was one of qualified privilege are well known. Their Honours referred to Toogood v Spyring (1834) 1 Cr M &amp; R 181 (149 ER 1044) and Adam v Ward [1917] AC 309. They quoted (at [9]) the following oft cited statement made by Parke B in Toogood v Spyring (at 193) (ER 1049-1050): In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society ; and the law has not restricted the right to make them within any narrow limits. [my emphasis] Their Honours said (at [9]) that "[r]eciprocity of duty or interest is essential", citing Adam v Ward at 334 where the following statement appears: It was not disputed, in this case on either side, that a privileged occasion is, in reference to qualified privilege, an occasion where the person who makes a communication has an interest or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.
Case: Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports p81-127
Outcome: cited
relies on a series of authorities that were concerned with internet service providers: Bunt v Tilley [2006] EWHC 407 ; [2006] 3 All ER 336 ; Godfrey v Demon Internet Ltd [2001] QB 201; Cubby, Inc v CompuServe Inc 776 F. Supp. 135 (1991); Urbanchich v Drummoyne Municipal Council (1991) Aust Torts Reports p81-127.
Case: Vintage Developments Pty Ltd v GHD Pty Limited (No 2) [2006] FCA 1437
Outcome: distinguished
response to Veda's Limitation Act defence submission, the applicants argue that all of the amendments to their respective pleadings take effect as from the filing of the original statement of claim (on 25 January 2006 in Mr McGary's proceeding and on 16 December 2005 in the other eight proceedings). The applicants refer to Baldry v Jackson [1976] 2 NSWLR 415 at 419 per Samuels JA, O 13 r 3A of the Federal Court Rules , and Vintage Developments Pty Ltd v GHD Pty Limited (No 2) [2006] FCA 1437 ( Vintage ). The applicants submit: Where the limitation period of one year applies any pleaded imputation after 16 December 2005 is within time, and in the case of Mr McGary, any publication after 25 January 2006 . If there is a publication prior to 16 February 2003 then any subsequent publication will be within time by virtue of the savings provisions under s 14B(2) of the Limitation Act when amended with effect from 17 February 2003. All publications are of substantially the same matter. All causes of action pleaded in defamation are publications within the twelve month period prior to the commencement of the proceedings or they come within the savings provision under s 14B(2) of the Limitation Act . Veda submits that Vintage is distinguishable because the application in that case was an application to amend the capacity in which a party sued under O 13 r 2(6). However, Veda submits that O 13 r 2(6) is also subject to O 13 r 2(3)'s requirement of leave where the limitation period has expired, and that the correctness of Vintage is doubtful because the parties did not refer Her Honour to O 13 r 2(3). The parties' submissions raised two issues for decision. The first relates to the construction and application of s 14B(2003). The second relates to the construction and application of O 13 rr 2 and 3A of the Federal Court Rules . Both issues were argued by reference to general principles, and I will decide them accordingly, leaving it to the parties to apply my decision to the nine individual proceedings. Section 14B(2003) Vintage does not assist one way or the other. In that case the applicants moved under O 13 r 2 for leave to amend, and regard was had to subrules (3) and (6) of that rule and to rule 3A. With respect, Bennett J correctly observed (at [20]) that the effect of rule 3A(1)(b) was that if the Court did not otherwise order when granting leave to amend under O 13 r 2, the amendment would take effect when the document the subject of the amendment was first filed. Rule 3A is a default provision. When dealing with an application under rule 3 for leave to amend, the Court must bear in mind that unless it orders otherwise, rule 3A will have effect. Since I have decided that s 14B(2003) did not apply, I need say nothing further in relation to O 13 r 2 and 3A of the Federal Court Rules .
Case: Watt v Longsdon [1930] 1 KB 130
Outcome: referred to
Privy Council's decision has been criticised. In Watt v Longsdon [1930] 1 KB 130 at 148, Scrutton LJ said that the decision "must not be relied on too strongly" in the light of the decision of the House of Lords in London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 ( Greenlands ).
Case: Weldon v Neal (1887) 19 QBD 394
Outcome: cited
to the amendment of the Federal Court of Australia Act 1976 (Cth) (FCA Act) by the insertion of subs (2B) in s 59 by the Law and Justice Legislation Amendment Act 1994 (No 84 of 1994), it was generally accepted that the Court could not, under its rule-making power, deprive a litigant of the benefit of a limitation defence. This idea can be traced back to Weldon v Neal (1887) 19 QBD 394 ; and see the annotations to O 13 r 2 in Practice &amp; Procedure High Court and Federal Court of Australia at [40,455.15]. Subsection (2B) was introduced into s 59 of the FCA Act on 23 June 1994. It provides: The Rules of Court may make provision for: (a) the amendment of a document in a proceeding; or (b) leave to amend a document in a proceeding; even if the effect of the amendment would be to allow a person to seek a remedy in respect of a legal or equitable claim that would have been barred because of the expiry of a period of limitation if the remedy had originally been sought at the time of the amendment. Pursuant to this amendment, O 13 r 2 was amended on 1 August 1994 by Statutory Rules 279 of 1994. The amendments substituted a new subrule (3) of rule 2 and added new subrules (4), (5), (6) and (7) to that rule.
Case: Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 11 ATPR 40-940
Outcome: cited
Section 75B for present purposes deems a person to be involved in a contravention of (inter alia) Part V (which includes s 52 and s 59 by a corporation if that person "has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention": see s 75B(1)(c). This, as I earlier noted, is the vehicle relied upon by the applicants to impose liability on Bell and Sladojevic under s 82 of the TP Act in respect of the contraventions alleged against Tiltform Licensing by virtue of their conduct: see Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 11 ATPR 40-940. Section 75B does not require that the participant knew he or she was participating in a contravention of the Act. What, though, is required is actual knowledge of the essential elements of the contravention and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 ff.
Case: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661
Outcome: cited
Section 75B for present purposes deems a person to be involved in a contravention of (inter alia) Part V (which includes s 52 and s 59 by a corporation if that person "has been in any way, directly or indirectly, knowingly concerned in, or party to, the contravention": see s 75B(1)(c). This, as I earlier noted, is the vehicle relied upon by the applicants to impose liability on Bell and Sladojevic under s 82 of the TP Act in respect of the contraventions alleged against Tiltform Licensing by virtue of their conduct: see Wheeler Grace &amp; Pierucci Pty Ltd v Wright (1989) 11 ATPR 40-940. Section 75B does not require that the participant knew he or she was participating in a contravention of the Act. What, though, is required is actual knowledge of the essential elements of the contravention and intentional participation in it: Yorke v Lucas [1985] HCA 65 ; (1985) 158 CLR 661 at 666 ff.
Case: Secretary of State for Trade and Industry v Deverall [2001] Ch 340
Outcome: cited
I equally should comment on Sladojevic's relationship with Benson. This relationship needs to be considered bearing two matters in mind first, Sladojevic's tendency to domineer; and, secondly, his power over Tiltform Australia by virtue of the licence agreements Tiltform Licensing had with it. While Benson was, in the relevant period, within Sladojevic's power vis-&agrave;-vis investments to be made in Tiltform Australia, the evidence is that at that time their relationship was cordial. I accept that Benson readily accepted and acted upon proposals and suggestions of Sladojevic relating to securing investment in Tiltform Australia. But I do not accept, and it has not been suggested, that Sladojevic was in essence a "shadow director" of Tiltform Australia: cf Secretary of State for Trade and Industry v Deverall [2001] Ch 340 at 354; Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. The evidence is that Benson had and relied upon his own financial advisers in relation to the formation and their operation of Tiltform Australia and that he was experienced in the conduct of his own businesses. I do not accept that he was simply Sladojevic's cipher despite Parker's occasional attempts to paint him as such.
Case: Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1
Outcome: cited
I equally should comment on Sladojevic's relationship with Benson. This relationship needs to be considered bearing two matters in mind first, Sladojevic's tendency to domineer; and, secondly, his power over Tiltform Australia by virtue of the licence agreements Tiltform Licensing had with it. While Benson was, in the relevant period, within Sladojevic's power vis-&agrave;-vis investments to be made in Tiltform Australia, the evidence is that at that time their relationship was cordial. I accept that Benson readily accepted and acted upon proposals and suggestions of Sladojevic relating to securing investment in Tiltform Australia. But I do not accept, and it has not been suggested, that Sladojevic was in essence a "shadow director" of Tiltform Australia: cf Secretary of State for Trade and Industry v Deverall [2001] Ch 340 at 354; Australian Securities Commission v A S Nominees Ltd (1995) 133 ALR 1 at 52-53. The evidence is that Benson had and relied upon his own financial advisers in relation to the formation and their operation of Tiltform Australia and that he was experienced in the conduct of his own businesses. I do not accept that he was simply Sladojevic's cipher despite Parker's occasional attempts to paint him as such.
Case: Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458
Outcome: applied
Given that the primary relief sought is damages under s 82 of the TP Act or, in the alternative, s 1325 of the Corporations Law, the critical issue in this case is whether any or all of the contravening conduct materially contributed to the loss the applicants' claim they suffered in consequence of their making their investment. In this particular setting the applicants accept, properly, that it is for them ultimately to prove contravening conduct was an inducement to their making of the investment in Tiltform Australia: see Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477-478; albeit it need not be the sole inducement: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950 at 50,378; see also Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627 at [32] . As s 82 makes plain, the loss or damage suffered must be "by conduct of another person that was done in contravention of [s 52]": see Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. Notwithstanding the submissions made by Sladojevic on the potential difference between s 82 and s 1325 in this regard because of the former's use of "by" and the latter's "because of", this as will be seen is not a difference I need explore here given my findings.
Case: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950
Outcome: applied
Given that the primary relief sought is damages under s 82 of the TP Act or, in the alternative, s 1325 of the Corporations Law, the critical issue in this case is whether any or all of the contravening conduct materially contributed to the loss the applicants' claim they suffered in consequence of their making their investment. In this particular setting the applicants accept, properly, that it is for them ultimately to prove contravening conduct was an inducement to their making of the investment in Tiltform Australia: see Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477-478; albeit it need not be the sole inducement: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950 at 50,378; see also Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627 at [32] . As s 82 makes plain, the loss or damage suffered must be "by conduct of another person that was done in contravention of [s 52]": see Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. Notwithstanding the submissions made by Sladojevic on the potential difference between s 82 and s 1325 in this regard because of the former's use of "by" and the latter's "because of", this as will be seen is not a difference I need explore here given my findings.
Case: Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627
Outcome: cited
Given that the primary relief sought is damages under s 82 of the TP Act or, in the alternative, s 1325 of the Corporations Law, the critical issue in this case is whether any or all of the contravening conduct materially contributed to the loss the applicants' claim they suffered in consequence of their making their investment. In this particular setting the applicants accept, properly, that it is for them ultimately to prove contravening conduct was an inducement to their making of the investment in Tiltform Australia: see Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477-478; albeit it need not be the sole inducement: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950 at 50,378; see also Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627 at [32] . As s 82 makes plain, the loss or damage suffered must be "by conduct of another person that was done in contravention of [s 52]": see Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. Notwithstanding the submissions made by Sladojevic on the potential difference between s 82 and s 1325 in this regard because of the former's use of "by" and the latter's "because of", this as will be seen is not a difference I need explore here given my findings.
Case: Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514
Outcome: cited
Given that the primary relief sought is damages under s 82 of the TP Act or, in the alternative, s 1325 of the Corporations Law, the critical issue in this case is whether any or all of the contravening conduct materially contributed to the loss the applicants' claim they suffered in consequence of their making their investment. In this particular setting the applicants accept, properly, that it is for them ultimately to prove contravening conduct was an inducement to their making of the investment in Tiltform Australia: see Lam v Austintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 477-478; albeit it need not be the sole inducement: Kabwand Pty Ltd v National Australia Bank Ltd (1989) 11 ATPR 40-950 at 50,378; see also Travel Compensation Fund v Tambree trading as R Tambree and Associates [2005] HCA 69 ; (2005) 224 CLR 627 at [32] . As s 82 makes plain, the loss or damage suffered must be "by conduct of another person that was done in contravention of [s 52]": see Wardley Australia Ltd v Western Australia [1992] HCA 55 ; (1992) 175 CLR 514 at 525. Notwithstanding the submissions made by Sladojevic on the potential difference between s 82 and s 1325 in this regard because of the former's use of "by" and the latter's "because of", this as will be seen is not a difference I need explore here given my findings.
Case: Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd (1993) 41 FCR 229
Outcome: applied
It is unnecessary to enlarge on the above in any detail. It is well accepted. Because I have found contraventions to have occurred, it is helpful still to be reminded of the observations of the Full Court of this Court in Ricochet Pty Ltd v Equity Trustees Executors and Agency Co Ltd (1993) 41 FCR 229 at 235: "A finding that a misrepresentation might have induced a decision will not of itself establish as a matter of probability that it did. Consistently with that finding, it may be that, on the balance of probabilities, a party was induced to make a decision by a combination of factors including the misrepresentation. Assuming a non-trivial contribution to the causative process by the misrepresentation, then it may be actionable. Ultimately, the 'causative threshold' beyond which liability attaches to a misrepresentation which is one of a number of factors inducing a decision that produces loss, will be a question of judgment. This is a familiar process adverted to in various related contexts by Mason CJ in March v E &amp; M H Stramare Pty Ltd (supra) and in this Court in Elna Australia Pty Ltd v International Computers (Aust) Pty Ltd (No 2) (1987) 16 FCR 410 at 418-419 and Pavich v Bobra Nominees Pty Ltd [1988] ATPR 49,849. (See also Munchies Management Pty Ltd v Belperio (1988) 84 ALR 700 at 712). But the mere possibility that a misrepresentation might have induced a course of action by the representee can never of itself attach liability under s 82 to the making of it."