Bowin Designs Pty Ltd v Joyce, John Vincent

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DEFAMATION - Privilege - qualified privilege - whether available to consumer organisation in respect of article in consumer magazine published by it dealing with potentially dangerous product - whether defence of qualified privilege established - whether reply of malice established.

TRADE PRACTICES - Interpretation - exclusion of liability by s 65A of Trade practices Act 1974 - application of section to consumer magazine published by consumer protection organisation.

Trade Practices Act 1974 s 65A

Sun Earth Homes Pty Ltd v Australian Broadcasting Corporation (1993) 45 FCR 265
Camporese v Parton (1983) 150 DLR (3d) 208
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Adam v Ward [1917] AC 309
Horrocks v Lowe [1975] AC 135

BOWIN DESIGNS PTY LIMITED v JOHN VINCENT JOYCE & ANOR

No NG 758 of 1992

Lindgren J
Sydney
6 December 1996

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 758 of 1992
GENERAL DIVISION                 )

BETWEEN:

BOWIN DESIGNS PTY LIMITED
  First Applicant

JOHN VINCENT JOYCE
                   Second Applicant

AND:

AUSTRALIAN CONSUMERS ASSOCIATION
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:6 December 1996

MINUTE OF ORDERS

THE COURT ORDERS THAT:

  1. The application be dismissed.

  1. The applicants pay the respondent's costs.

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

IN THE FEDERAL COURT OF AUSTRALIA )
NEW SOUTH WALES DISTRICT REGISTRY )        No NG 758 of 1992
GENERAL DIVISION                 )

BETWEEN:

BOWIN DESIGNS PTY LIMITED
  First Applicant

JOHN VINCENT JOYCE
                   Second Applicant

AND:

AUSTRALIAN CONSUMERS ASSOCIATION
  Respondent

CORAM:Lindgren J

PLACE:Sydney

DATE:6 December 1996

REASONS FOR JUDGMENT
  TABLE OF CONTENTS

GENERAL INTRODUCTION........ ........ ........ ........ ...... 2

INTRODUCTION TO FACTS........ ........ ........ ........ ..... 3

THE PLEADINGS........ ........ ........ ........ ........ .... 11

THE EVIDENCE........ ........ ........ ........ ........ ..... 18

The period down to 15 August 1989........ ........ ... 18

The period from 15 August 1989 to 17 December 1991.. 29

The period from 17 December 1991 to the publication

of the article at the end of June 1992........ ...... 42

Publication of the article as a result of the mailing

of the July 1992 issue of "Choice" magazine on 26

June 1992........ ........ ........ ........ ........ ... 80

The period after publication of the article........ . 80

REASONING........ ........ ........ ........ ........ ........ 93

The imputations said to have been conveyed by the

matter complained of........ ........ ........ ........ 93

General legal nature of the various qualified

privilege/qualified protection defences........ .... 110

General nature of the various "comment" defences... 115

ACA's defence of qualified privilege at common law. 118

ACA's defence of qualified privilege under

sub-s 22 (1) of the NSW Act........ ........ ........ 138

ACA's "code" defences of qualified protection

in Queensland and Tasmania........ ........ ........ . 152

ACA's various comment defences........ ........ ..... 152

Claims under the TP Act and the FT Act........ ..... 153

Fraud and negligence........ ........ ........ ....... 155

CONCLUSION........ ........ ........ ........ ........ ...... 155

GENERAL INTRODUCTION

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Details
Case
[1996] FCA 1070
Decision Date

CaseChat Overview and Summary

Bowin Designs Pty Ltd and John Vincent Joyce (the applicants) brought an action against the Australian Consumers Association (ACA) for defamation, fraud, negligence, and breaches of the Trade Practices Act 1974 (Cth) and Fair Trading Act 1987 (NSW). The applicants sought damages and other remedies. The applicants alleged that ACA published an article in its "Choice" magazine which conveyed defamatory imputations about the applicants. The applicants claimed that ACA published the article without establishing the truth of the imputations or exercising reasonable care to ensure that it did not convey them. The applicants further submitted that ACA had no defence of qualified privilege or qualified protection. ACA admitted publishing the article but denied that it conveyed the imputations. ACA relied on various defences including qualified privilege at common law and under statute, various comment defences and immunity under s 65A of the Trade Practices Act. The court dismissed the applicants' claims. The court found that ACA's publication of the article was protected by the defence of qualified privilege at common law and under statute. The court rejected the applicants' submission that ACA's conduct in publishing the article was unreasonable and amounted to express malice. The court further held that ACA's publication of the article was protected by the statutory defence of qualified protection in Queensland and Tasmania. The court found that ACA had a complete defence under s 65A of the Trade Practices Act and s 60 of the Fair Trading Act. The court dismissed the applicants' claims with costs.

Orders

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Background

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

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