Bowin Designs Pty Ltd v Joyce, John Vincent - [1996] FCA 1070

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:

The application be dismissed.

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [1996] FCA 1070
Decision Date: 6 Dec 1996

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