mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: R v Shipley ( The Dean of St Asaph's Case ) (1784) 4 Doug 73
Outcome: discussed
Suk Ra is a brothel owner. She commenced these proceedings against the publisher of The Daily Telegraph newspaper, Nationwide News Pty Limited and its associated company, News Digital Media Pty Limited. News Digital publishes material on the internet including extracts from the Daily Telegraph . On 3 December 2008, The Daily Telegraph also published an editorial headed "Sydney's Own Horror House". The text of the editorial appears to have been republished on the internet by News Digital on either 3 or 4 December. On the same day the Daily Telegraph published an article under the headline "Sex Slave Trade Revealed". The article had a subheading, "Brothel Madam Walks Scott Free". On 4 December 2008, News Digital published an internet article headed "No Way Out for Women in Debt and Total Despair". A web blog or section on the News Digital website allowed readers to post comments on this article. On and after 4 December 2008 a number of comments were posted on this part of the website. Ms Ra claimed that each of these publications contravened s 53B of the Trade Practices Act 1974 (Cth). She alleged that one or other of the publishers had engaged in conduct that was liable to mislead persons seeking such employment as to the nature, terms or conditions of that employment by making a variety of misleading representations in each of the five publications in relation to employment that was or may be offered by her. In times less free than those in which we now live, the charge of criminal libel was often employed as a means of censoring freedom of expression and opinion. Until the passage of Fox's Libel Act in 1792 (32 Geo 3 c 60), the judges of England had asserted that it was their province to determine whether or not a matter was defamatory: R v Shipley ( The Dean of St Asaph's Case ) (1784) 4 Doug 73 at 164-165 per Lord Mansfield CJ, as explained by Lord Blackburn in The Capital and Counties Bank v Henty (1882) 7 App Cas 741 at 772-776. But juries constantly defied them by refusing to convict on a direction by a judge that the matter complained of was libellous. Fox's Libel Act squarely placed the decision of whether or not the matter complained of was a libel in the hands of the jury, and there it has remained in England to the present time, as it has until recent times in many of the Australian States. Lord Denning graphically explained, in his inimitable style, some of the history that informed the passage of Fox's Libel Act in Landmarks in The Law (1984) at 284-294.
Case: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 ; (2009) 254 ALR 606
Outcome: followed
concept of "reputation" in the law of defamation comprehends all aspects of a person's standing in the community: Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16 ; (2009) 254 ALR 606 at 616 [36] per French CJ, Gummow, Kiefel and Bell JJ. The importance of the law of defamation in balancing the right of an individual to the protection of his or her reputation and the right commonly described as freedom of speech plays a crucial role in our democratic system of government. That balance is affected at common law by the operation of the defence of qualified privilege as elaborated in Lange v Australian Broadcasting Corporation [1997] HCA 25 ; (1997) 189 CLR 520 , see at 565-576 per Brennan CJ, Dawson, Toohey, Gaudron, McHugh, Gummow and Kirby JJ. The test does not imply that the hypothetical referees will exercise a moral judgment about the plaintiff or applicant because of what is said about him or her. Rather, the test identifies the attributes of persons who share the standards of the general community and will apply them: Chesterton 254 ALR at 616 [37]-[38]. And, the moral or ethical standards held by the general community may be relevant to imputations which reflect upon a person's business or professional reputation: Chesterton 254 ALR at 618 [46]. The standard to be applied must be one common to society rather than one which reflects an attitude of a section of it: Chesterton 254 ALR at 619 [48]. French CJ, Gummow, Kiefel and Bell JJ continued ( Chesterton 254 ALR at 618 [46]: "In such cases the ordinary reasonable person may be expected to draw upon such community standards as may be relevant, in order to answer the question whether there has been injury to that reputation." I am of opinion that the essential balances that will need to be struck in respect of the critical issues in this matter (other than damages) are quintessentially better determined by a jury. This assessment will best be done by the community referees to whom French CJ, Gummow, Kiefel and Bell JJ referred in Chesterton 254 ALR at 616 [37]-[38], 618 [46], 619 [48] as did Brennan J in Lamb 150 CLR at 506. Accordingly, I am satisfied that the ends of justice render it expedient to direct a trial by jury of all issues in the proceedings, other than damages and any other issue which, pursuant to the Defamation Act would not be left to the jury. Thus, the question of the capacity of the matters complained of to convey any of the defamatory meanings alleged (as opposed to whether they in fact were conveyed) would remain a question of law to be decided by a judge. The part of this controversy that arises under s 53B of the Trade Practices Act should also be decided by a jury. This is because it is inextricably related to the meanings conveyed to ordinary reasonable readers by the matters complained of and whether Ms Ra has been injured in her reputation as an employer for the purposes of s 53B. However, if the jury returned a verdict in her favour on the issues of liability, the amount of compensation to be awarded pursuant to s 82 of that Act should be assessed by a judge.
Case: Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR p41-866
Outcome: cited
Construction Industry Long Service Leave Board v Odco Pty Ltd (No 2) (1988) ATPR p40-887 at 49,604, Jenkinson J observed that this Court would be likely to grant an application for a trial by a jury in a matter where claims under the Trade Practices Act were "tenuous" and the real subject matter was a defamation action. He distinguished an earlier decision of Northrop J in Insurance Commissioner v Australian Associated Motor Insurers Limited (No 2) (1982) 49 ALR 714 who refused to order a trial by jury of a claim by a comprehensive insurer of motor vehicles for damages arising from a contravention of s 52 by radio and television advertisements. Neither of those proceedings appears to have involved an individual's right to his or her personal reputation or allegations of the kind involved in the publications complained of here. This factor was considered to be of significance by Tamberlin J in Stalyce Holdings (Aust) Pty Ltd v Cetec Pty Ltd (2002) ATPR p41-866 at 44,852 [15].
Case: Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652
Outcome: referred to
On 26 May 2006, I dismissed a notice of motion dated 25 May 2006 by which the respondents sought orders discharging or staying an interlocutory injunction which I granted in these proceedings on 19 May 2006: Paras v Public Service Body Head of the Department of Infrastructure (No 2) [2006] FCA 652. I reserved the costs of the motion pending receipt of written submissions as to whether costs can or should be ordered in favour of the applicant, having regard to the provisions of s 824 of the Workplace Relations Act 1996 (Cth) ('WRA'). 2 On 31 May 2006, the applicant and the respondents filed written submissions as to costs. Both parties have consented to me disposing of the question of costs without hearing further oral argument.
Case: Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439
Outcome: cited
It is common ground that the Court's jurisdiction in this proceeding arises because there are claims for final relief under the WRA. It follows that all of the claims in the proceeding are matters of federal jurisdiction. It also follows that the matter of costs is governed by s 824 of the WRA, both as to the statutory claim under the WRA and as to all claims in the Court's associated jurisdiction: Bostik (Australia) Pty Ltd v Gorgevski (No 2) (1992) 36 FCR 439. 4 Section 824 provides: '(1) A party to a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) must not be ordered to pay costs incurred by any other party to the proceeding unless the first-mentioned party instituted the proceeding vexatiously or without reasonable cause. (2) Despite subsection (1), if a court hearing a proceeding (including an appeal) in a matter arising under this Act (other than an application under section 663) is satisfied that a party to the proceeding has, by an unreasonable act or omission, caused another party to the proceeding to incur costs in connection with the proceeding, the court may order the first-mentioned party to pay some or all of those costs.' 5 Subsection (1) of s 824 was based upon an earlier provision in s 347(1) of the WRA: see the Explanatory Memorandum to the Workplace Relations Amendment (Work Choices) Bill 2005 (Cth). It appears that subs (2) of s 824 was based upon the provision now found in s 666(1) of the WRA.
Case: Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736
Outcome: followed
In Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 (' Shackley' ), a decision of the Full Bench of the Industrial Relations Court of Australia, Wilcox CJ held that the expression 'proceeding in a matter' in s 347(1) of the Industrial Relations Act 1988 (Cth) included a subsidiary application made in the course of the principal action: at 744. In the course of his reasons for decision, Wilcox CJ disagreed with the view expressed by Gray J in Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437 (' Andrews ') at 441-442 that interlocutory motions ought not to be regarded as proceedings for the purposes of s 347. Wilcox CJ preferred the view expressed by Northrop J in Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees' &amp; Builders Labourers' Federation (1981) 38 ALR 550 at 553 that 'proceeding' encompasses 'a step in the proceeding as well as the action itself'. Von Doussa J agreed with Wilcox CJ. The other member of the Full Bench, North J, did not express any view on the question whether the Court has power under s 347 to make orders for costs in interlocutory applications which are brought vexatiously or without reasonable cause: at 750. 11 In Commonwealth v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271 (' CFMEU '), the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed Shackley . The case concerned an interlocutory application by the Union for inspection of a document over which the Commonwealth claimed public interest immunity. The trial judge granted the application and ordered inspection, but the Commonwealth successfully appealed to the Full Court. The Commonwealth then sought an order that the Union pay the costs of the application and the appeal. 15 In Gray v Australian Liquor Hospitality and Miscellaneous Workers Union (unreported, Marshall J, 26 June 1998), Marshall J also expressed the view, in reliance upon Andrews , that the reference to 'proceeding' in s 347(1) of the WRA is a reference to the substantive proceeding and not to a motion brought within the matter for the discharge or variation of an earlier order. I have also noted the discussion of Shackley and Andrews in Marshall J's judgment in Konrad v Victoria Police (1998) 78 IR 54 at 56-57. Both decisions by Marshall J predate the Full Court's decision in CFMEU. In my opinion, even if the views expressed by Marshall J were capable of standing with Shackley , which I respectfully doubt, they have been overtaken by the later Full Court decision. The law which I must apply is that stated by the Full Court in CFMEU.
Case: Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437
Outcome: considered
In Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 (' Shackley' ), a decision of the Full Bench of the Industrial Relations Court of Australia, Wilcox CJ held that the expression 'proceeding in a matter' in s 347(1) of the Industrial Relations Act 1988 (Cth) included a subsidiary application made in the course of the principal action: at 744. In the course of his reasons for decision, Wilcox CJ disagreed with the view expressed by Gray J in Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437 (' Andrews ') at 441-442 that interlocutory motions ought not to be regarded as proceedings for the purposes of s 347. Wilcox CJ preferred the view expressed by Northrop J in Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees' &amp; Builders Labourers' Federation (1981) 38 ALR 550 at 553 that 'proceeding' encompasses 'a step in the proceeding as well as the action itself'. Von Doussa J agreed with Wilcox CJ. The other member of the Full Bench, North J, did not express any view on the question whether the Court has power under s 347 to make orders for costs in interlocutory applications which are brought vexatiously or without reasonable cause: at 750. 15 In Gray v Australian Liquor Hospitality and Miscellaneous Workers Union (unreported, Marshall J, 26 June 1998), Marshall J also expressed the view, in reliance upon Andrews , that the reference to 'proceeding' in s 347(1) of the WRA is a reference to the substantive proceeding and not to a motion brought within the matter for the discharge or variation of an earlier order. I have also noted the discussion of Shackley and Andrews in Marshall J's judgment in Konrad v Victoria Police (1998) 78 IR 54 at 56-57. Both decisions by Marshall J predate the Full Court's decision in CFMEU. In my opinion, even if the views expressed by Marshall J were capable of standing with Shackley , which I respectfully doubt, they have been overtaken by the later Full Court decision. The law which I must apply is that stated by the Full Court in CFMEU.
Case: Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees' &amp; Builders Labourers' Federation (1981) 38 ALR 550
Outcome: considered
In Shackley v Australian Croatian Club Ltd (1996) 141 ALR 736 (' Shackley' ), a decision of the Full Bench of the Industrial Relations Court of Australia, Wilcox CJ held that the expression 'proceeding in a matter' in s 347(1) of the Industrial Relations Act 1988 (Cth) included a subsidiary application made in the course of the principal action: at 744. In the course of his reasons for decision, Wilcox CJ disagreed with the view expressed by Gray J in Andrews v Uniting Church in Australia Frontier Services (t/a Old Timers) (1995) 60 IR 437 (' Andrews ') at 441-442 that interlocutory motions ought not to be regarded as proceedings for the purposes of s 347. Wilcox CJ preferred the view expressed by Northrop J in Viner (Minister of State for Industrial Relations) v Australian Building Construction Employees' &amp; Builders Labourers' Federation (1981) 38 ALR 550 at 553 that 'proceeding' encompasses 'a step in the proceeding as well as the action itself'. Von Doussa J agreed with Wilcox CJ. The other member of the Full Bench, North J, did not express any view on the question whether the Court has power under s 347 to make orders for costs in interlocutory applications which are brought vexatiously or without reasonable cause: at 750.
Case: Commonwealth v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271
Outcome: applied
In Commonwealth v Construction, Forestry, Mining and Energy Union [2003] FCAFC 115 ; (2003) 129 FCR 271 (' CFMEU '), the Full Court (Black CJ, Tamberlin and Sundberg JJ) followed Shackley . The case concerned an interlocutory application by the Union for inspection of a document over which the Commonwealth claimed public interest immunity. The trial judge granted the application and ordered inspection, but the Commonwealth successfully appealed to the Full Court. The Commonwealth then sought an order that the Union pay the costs of the application and the appeal.
Case: Australasian Meat Industry Employees Union (WA) v Woolworths Ltd (2006) 149 IR 213
Outcome: considered
The respondents' construction of s 824(1) was founded upon Australasian Meat Industry Employees Union (WA) v Woolworths Ltd (2006) 149 IR 213 (' Woolworths' ). The case concerned the costs of a directions hearing at which the applicant advised the Court that it no longer wished to pursue its claim for interim relief to restrain the certification of an agreement under the WRA. The claim was not pursued because the agreement had in fact been certified after the institution of the proceedings but prior to the directions date, without the knowledge of the applicant. The respondent sought costs on the basis that the applicant had not mounted its interim application urgently and in accordance with the rules concerning the filing of affidavit evidence. 14 In the present case, the respondents relied on Nicholson J's statement at 214-215 [8] that the proviso to s 347(1) afforded no ground for making a costs order in respect of a step in the proceeding, as distinguished from the institution of the proceeding. However, it is not clear that the reference by Nicholson J to a 'step in the proceeding' was directed to the application for interim relief, rather than to particular procedural 'steps' in relation to that application. On my reading, Nicholson J was treating the application for interim relief as a step in the proceeding, as he went on to say at 214-215 [8] that: 'the proceeding was instituted with reasonable cause and [was] one which remained, in the applicant's mind, reasonable throughout, until it learnt eventually of the certification of the agreement.' This simply amounts to a finding that, on the facts, costs should not be ordered under the proviso to s 347(1) because the interlocutory application was not instituted 'vexatiously or without reasonable cause'. In my opinion, Woolworths does not support the respondents' contention that costs cannot be awarded under 824(1) in respect of an interlocutory notice of motion.
Case: Thomas v School of Mines Services Pty Ltd (unreported, Industrial Relations Court of Australia, Farrell JR, 5 August 1996)
Outcome: considered
In support of a narrow construction of s 824(2), the respondents referred me to several authorities that had considered the former provisions of s 170EHA, which effectively continued as s 170CS (now s 666 of the WRA): see Thomas v School of Mines Services Pty Ltd (unreported, Industrial Relations Court of Australia, Farrell JR, 5 August 1996); Turner v Composite Buyers Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 28 January 1997) and Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Ryan JR, 12 June 1998) (' Fenech' ). These cases do not support the contention that s 824(2) should be narrowly construed. In fact, in Fenech , Ryan JR referred to an earlier order made by Marshall J in the proceedings, to the effect that the respondent should pay costs pursuant to s 170EHA as a result of the dismissal of its application for an interlocutory injunction.
Case: Turner v Composite Buyers Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 28 January 1997)
Outcome: considered
In support of a narrow construction of s 824(2), the respondents referred me to several authorities that had considered the former provisions of s 170EHA, which effectively continued as s 170CS (now s 666 of the WRA): see Thomas v School of Mines Services Pty Ltd (unreported, Industrial Relations Court of Australia, Farrell JR, 5 August 1996); Turner v Composite Buyers Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 28 January 1997) and Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Ryan JR, 12 June 1998) (' Fenech' ). These cases do not support the contention that s 824(2) should be narrowly construed. In fact, in Fenech , Ryan JR referred to an earlier order made by Marshall J in the proceedings, to the effect that the respondent should pay costs pursuant to s 170EHA as a result of the dismissal of its application for an interlocutory injunction.
Case: Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Ryan JR, 12 June 1998)
Outcome: considered
In support of a narrow construction of s 824(2), the respondents referred me to several authorities that had considered the former provisions of s 170EHA, which effectively continued as s 170CS (now s 666 of the WRA): see Thomas v School of Mines Services Pty Ltd (unreported, Industrial Relations Court of Australia, Farrell JR, 5 August 1996); Turner v Composite Buyers Ltd (unreported, Industrial Relations Court of Australia, Millane JR, 28 January 1997) and Fenech v Perfect Health Medical Centres Pty Ltd (unreported, Industrial Relations Court of Australia, Ryan JR, 12 June 1998) (' Fenech' ). These cases do not support the contention that s 824(2) should be narrowly construed. In fact, in Fenech , Ryan JR referred to an earlier order made by Marshall J in the proceedings, to the effect that the respondent should pay costs pursuant to s 170EHA as a result of the dismissal of its application for an interlocutory injunction.
Case: Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170
Outcome: cited
The applicant contended that the discharge application was bound to fail. It was submitted that the respondents had no prospects of establishing the exceptional circumstances required by the authorities and that, accordingly, the notice of motion was instituted without reasonable cause. The applicant also pointed out that the respondents had placed heavy but misguided reliance upon the decisions in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139, and did not address themselves to the relevant authorities, which included Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178, Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 at 751 and Dudzinski v Centrelink [2003] FCA 308 at [11] .
Case: Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139
Outcome: cited
The applicant contended that the discharge application was bound to fail. It was submitted that the respondents had no prospects of establishing the exceptional circumstances required by the authorities and that, accordingly, the notice of motion was instituted without reasonable cause. The applicant also pointed out that the respondents had placed heavy but misguided reliance upon the decisions in Tenth Vandy Pty Ltd v Natwest Markets Australia Pty Ltd [2006] VSC 170 and Nominal Defendant v Manning [2000] NSWCA 80 ; (2000) 50 NSWLR 139, and did not address themselves to the relevant authorities, which included Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc [1981] HCA 39 ; (1981) 148 CLR 170 at 178, Chanel Ltd v FW Woolworth &amp; Co Ltd [1981] 1 All ER 745 at 751 and Dudzinski v Centrelink [2003] FCA 308 at [11] .