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 citedUniversal 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 citedShorter 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 2007FRENCH J
21 SEPTEMBER 2007
PERTH
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAD121 OF 2007
BETWEEN:
ALAN BOND
First ApplicantLESOTHO DIAMOND CORPORATION PLC
Second ApplicantAND:
PAUL BARRY
First RespondentNEWS DIGITAL MEDIA PTY LTD
Second RespondentNATIONWIDE NEWS PTY LTD
Third RespondentNEWS LIMITED
Fourth RespondentNEIL 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 ApplicantLESOTHO DIAMOND CORPORATION PLC
Second ApplicantAND:
PAUL BARRY
First RespondentNEWS DIGITAL MEDIA PTY LTD
Second RespondentNATIONWIDE NEWS PTY LTD
Third RespondentNEWS LIMITED
Fourth RespondentNEIL LAURENCE BREEN
Fifth Respondent
JUDGE:
FRENCH J
DATE:
21 SEPTEMBER 2007
PLACE:
PERTH
REASONS FOR JUDGMENT ON MOTION TO DISMISS PROCEEDINGS
Introduction
In…
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- AGLC
- Bond v Barry [2007] FCA 1484
- Case
- [2007] FCA 1484
- Decision Date
CaseChat Overview and Summary
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
Ratio Decidendi
Legal Principle Established
Established by: FRENCH J
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