Bond v Barry

Case [2008] FCAFC 115

FEDERAL COURT OF AUSTRALIA

Bond v Barry [2008] FCAFC 115

TRADE PRACTICES – appellants claimed email of article from the first respondent, a freelance journalist, to media organisation was misleading and deceptive and not protected by the media safe harbour defence – primary judge found no reasonable prospects of success and summarily dismissed the application – proper construction of s 65A of the Trade Practices Act 1974 (Cth) – ‘publication’ includes communication of prescribed information from freelance journalist to media organisation – exception to media exemption in s 65A(1)(a)(i) of the Trade Practices Act – article covering corporate misdeeds not relevantly “in connection with” the provision of journalistic services – decision of primary judge affirmed

Federal Court of Australia Act 1976 (Cth) s 31A
Trade Practices Act 1974 (Cth) ss 52, 65A

Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 referred to
Australian Ocean Line Pty Ltd vWest Australian Newspapers Ltd (1983) 66 FLR 453 referred to
Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 applied
Channel Seven Brisbane Pty Limited v Australian Competition & Consumer Commission [2008] FCAFC 114 distinguished
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 referred to
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 referred to
Horwitz v Grahame Books Pty Ltd (1987) 8 IPR 25 referred to
J F Keir Pty Limited v Sparks [2008] FCA 611 referred to
Jefferson Ford Pty Ltd v Ford Motor Company of Australia Limited [2008] FCAFC 60 discussed
TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9 applied
Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) 78 FLR 16 referred to
Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 referred to
Yorke v Lucas (1985) 158 CLR 661 referred to

ALAN BOND AND LESOTHO DIAMOND CORPORATION PLC v PAUL BARRY, NEWS DIGITAL MEDIA PTY LIMITED (ACN 000 529 457), NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828), NEWS LIMITED (ACN 007 871 178) AND NEIL LAURENCE BREEN
WAD 192 OF 2007

SUNDBERG, JACOBSON & LANDER JJ
23 JUNE 2008

SYDNEY


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 192 OF 2007
ON APPEAL FROM A SINGLE JUDGE OF THE  FEDERAL COURT OF AUSTRALIA

BETWEEN:

ALAN BOND
First Appellant

LESOTHO DIAMOND CORPORATION PLC
Second Appellant

AND:

PAUL BARRY
First Respondent

NEWS DIGITAL MEDIA PTY LIMITED (ACN 000 529 457)
Second Respondent

NATIONWIDE NEWS PTY LIMITED (ACN 008 438 828)
Third Respondent

NEWS LIMITED (ACN 007 871 178)
Fourth Respondent

NEIL LAURENCE BREEN
Fifth Respondent

JUDGE:

SUNDBERG, JACOBSON & LANDER JJ

DATE OF ORDER:

23 JUNE 2008

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:

1.The appeal be dismissed.

2.The appellants pay the costs of the proceedings.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules.


IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD 192 OF 2007

ON APPEAL FROM A SINGLE JUDGE OF…

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AGLC
Bond v Barry [2008] FCAFC 115
Case
[2008] FCAFC 115
Decision Date

CaseChat Overview and Summary

Bond and Lesotho Diamond brought an appeal against a decision that dismissed their claims against Mr Barry, Mr Breen, and others. The primary judge had found that the claims had no reasonable prospect of success, particularly in light of the interpretation of section 65A of the Act. The appellants argued that the primary judge erred in his interpretation of section 65A, and that the claims against the respondents should not have been dismissed. The court was required to decide whether the primary judge's interpretation of section 65A was correct, and whether the claims against the respondents had reasonable prospects of success.

The court considered the legislative background to section 65A, which was enacted in response to concerns that news media may be liable for incorrect news reports under section 52 of the Act. The court also considered the decision of French J in Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd, which set out the genesis and purpose of section 65A in some detail. The court found that the primary judge's interpretation of section 65A was correct, and that there was no reasonable room for debate about the construction of the section that would leave room for the appellants to establish liability on the part of the respondents. The court also found that the claims against the respondents had no reasonable prospect of success.

The appeal was dismissed, and the appellants were ordered to pay the costs of the proceedings. The court held that the primary judge's interpretation of section 65A was correct, and that the claims against the respondents had no reasonable prospect of success. The court also held that the appellants had not demonstrated any error on the part of the primary judge that would warrant interference with his decision. The court dismissed the appeal and ordered the appellants to pay the costs of the proceedings.

Orders

Orders of the court

1. The appeal be dismissed.

2. The appellants pay the costs of the proceedings.

Background

Background to the litigation

As we said earlier, his Honour considered that the claims against Mr Barry and Mr Breen had no reasonable prospects of success. He accepted at [46], that summary disposition under s 31A of the FCA is to be approached with caution. But his Honour said:In my opinion, however, for the reasons which I have already outlined, there is no reasonable room for debate about the construction of s 65A that would leave room for Mr Bond and Lesotho Diamond to establish liability on the part of any of the respondents in this case. In my opinion the application has no reasonable prospect of success.Legislative background to s 65A As the learned primary judge observed at [30], s 65A was enacted in 1984 in response to concerns that news media may be liable for incorrect news reports under s 52 of the Act. He cited three decisions of Full Courts of the Federal Court and one of a judge of the Court sitting at first instance, which provided the source for these concerns. The Full Court decisions were Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360; Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) 78 FLR 16 and Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82. The first instance judgment was a decision of Toohey J in Australian Ocean Line Pty Ltd vWest Australian Newspapers Ltd (1983) 66 FLR 453. In Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 at 6-10, French J set out in some detail the extraneous material that revealed the genesis and purpose of s 65A. This included a consideration of the authorities of the Court referred to in the previous paragraph and an excerpt from the Second Reading Speech. It is convenient to cite an extract from those parts of the Second Reading Speech which were reproduced by French J in Advanced Hair Studio at 9-10, as follows:Recent decisions of the Federal Court have suggested that a newspaper publisher may be taken to have engaged in conduct that is misleading or deceptive for the purposes of section 52 of the Trade Practices Act if the newspaper contains inaccurate information…New section 65a will operate to exempt the media and other persons who engage in businesses of providing information from the operation of those provisions of Division 1 of Part V of the Trade Practices Act which could inhibit activities relating to the provision of news and other information…These provisions ensure that information providers are not exempt from the consumer protection provisions of the Trade Practices Act in respect of the provision of information where they have what might be regarded as a commercial interest in the content of the information. In such cases, information providers must take the same responsibility for the accuracy of information as any other person who publishes information in trade or commerce…Publication The decision of French J at first instance was explained and distinguished in the NSW Court of Appeal in TCN Channel Nine Pty Ltd v Ilvariy Pty Ltd [2008] NSWCA 9. Importantly, Spigelman CJ (with whom Beazley JA and Hodgson JA agreed), did so in a way which accepted the correctness of the decision, at least insofar as it dealt with the construction of “publication” in s 65A.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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