Bond v Barry

Case [2007] FCA 1484

FEDERAL COURT OF AUSTRALIA

Bond v Barry [2007] FCA 1484

TRADE PRACTICES – misleading or deceptive conduct – media exemption – prescribed publication of matter – prescribed information provider – supply of article by freelance journalist – pursuant to contract with newspaper company – publication in newspaper and online news website – whether conduct of freelance journalist protected by media exemption – whether conduct of editor of newspaper sending article by email to other editors within exemption – whether supply of article by freelance journalist “in connection with supply of goods or services” – limits of application of media exemption – inapplicability to accessorial liability – whether proceeding has reasonable prospect of success – no reasonable prospect of success – application dismissed

PRACTICE AND PROCEDURE – summary dismissal – no reasonable prospect of success – criteria – application dismissed

Trade Practices Act 1974 (Cth)
Fair Trading Act 1987 (WA)
Fair Trading Act 1987 (NSW)

Second Reading Speech for the Statute Law (Miscellaneous Provisions) Bill  (No 2) 1984

Advanced Hair Studio Pty Ltd v TVW Enterprises Ltd (1987) 18 FCR 1 cited
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1983) 66 FLR cited
Australian Ocean Line Pty Ltd v West Australian Newspapers Ltd (1985) 58 ALR 549 cited
Carlovers Carwash Ltd v Sahathevan [2000] NSWSC 947 cited
Global Sportsman Pty Ltd v Mirror Newspapers Pty Ltd (1984) 2 FCR 82 cited
Infabrics Ltd v Jaytex Ltd [1981] 1 All ER 1057 cited
Krahe v Freeman (1988) ATPR 40-871 cited

Universal Telecasters (Qld) Ltd v Guthrie (1978) 32 FLR 360 cited
Universal Telecasters (Qld) Ltd v Ainsworth Consolidated Industries Ltd (1983) ATPR 40-384 cited
Webb v Bloch (1928) 41 CLR 331 cited

Shorter Oxford English Dictionary (5th ed, Oxford University Press, 2002)

ALAN BOND AND LESOTHO DIAMOND CORPORATION PLC v PAUL BARRY, NEWS DIGITAL MEDIA PTY LTD, NATIONWIDE NEWS PTY LTD, NEWS LIMITED AND NEIL LAURENCE BREEN
WAD 121 OF 2007

FRENCH  J
21 SEPTEMBER 2007
PERTH

IN THE FEDERAL COURT OF AUSTRALIA

WESTERN AUSTRALIA DISTRICT REGISTRY

WAD121 OF 2007

BETWEEN:

ALAN BOND
First Applicant

LESOTHO DIAMOND CORPORATION PLC
Second Applicant

AND:

PAUL BARRY
First Respondent

NEWS DIGITAL MEDIA PTY LTD
Second Respondent

NATIONWIDE NEWS PTY LTD
Third Respondent

NEWS LIMITED
Fourth Respondent

NEIL LAURENCE BREEN
Fifth Respondent

JUDGE:

FRENCH  J

DATE OF ORDER:

21 SEPTEMBER 2007

WHERE MADE:

PERTH

THE COURT ORDERS THAT:

1.The application is dismissed.

2.The applicants are to pay the respondents’ costs of the application.

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

WAD121 OF 2007

BETWEEN:

ALAN BOND
First Applicant

LESOTHO DIAMOND CORPORATION PLC
Second Applicant

AND:

PAUL BARRY
First Respondent

NEWS DIGITAL MEDIA PTY LTD
Second Respondent

NATIONWIDE NEWS PTY LTD
Third Respondent

NEWS LIMITED
Fourth Respondent

NEIL LAURENCE BREEN
Fifth Respondent

JUDGE:

FRENCH  J

DATE:

21 SEPTEMBER 2007

PLACE:

PERTH

REASONS FOR JUDGMENT ON MOTION TO DISMISS PROCEEDINGS

Introduction

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AGLC
Bond v Barry [2007] FCA 1484
Case
[2007] FCA 1484
Decision Date

CaseChat Overview and Summary

In the case of Bond v Barry, the plaintiff, Mr Bond, representing himself and Lesotho Diamond, sought to challenge a decision regarding the dismissal of their proceedings. The matter was before the Supreme Court of the relevant jurisdiction. The dispute primarily centred around the interpretation and application of section 65A and whether the plaintiffs could establish any liability on the part of the respondents based on the court's interpretation of this section.

The legal issue before the court was whether the dismissal of the plaintiffs' proceeding under section 31A of the relevant act was justified. Specifically, the court had to determine if the plaintiffs' case had a reasonable prospect of success and whether it was appropriate to dismiss the proceedings based on the strength of the legal arguments presented by the respondents. The court also needed to consider whether the dismissal was warranted despite the plaintiffs' case showing little promise of success.

In delivering the judgment, the court held that the criterion for dismissal under section 31A did not require the proceedings to be deemed hopeless or bound to fail. However, it did emphasise that summary dismissal should be approached with caution. The court found that the plaintiffs' case did not have a reasonable prospect of success because there was no reasonable room for debate about the construction of section 65A that would allow the plaintiffs to establish liability against the respondents. Therefore, the court concluded that the application for dismissal was appropriate.

As a result, the court dismissed the application and ordered that the applicants were to pay the respondents' costs of the application.

Orders

Orders of the court

1. The application is dismissed.

2. The applicants are to pay the respondents’ costs of the application.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

FRENCH J
The criterion of “no reasonable prospect of success” which is necessary to be satisfied for dismissal of a proceeding under s 31A does not require a demonstration that the proceeding is hopeless or bound to fail. Nevertheless, summary disposition under s 31A is to be approached with caution. The fact that an action shows little promise of success may not of itself be enough to justify dismissal particularly where that dismissal turns upon a proposition of law which while strong may yet be open to some debate. 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. Conclusion For the preceding reasons the application will be dismissed.

Ratio Decidendi

Legal Principle Established

Established by: FRENCH J

Full text does not contain this section.