Clarke v West Australian Newspapers Ltd
[2010] FMCA 502
•20 July 2010
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| CLARKE v WEST AUSTRALIAN NEWSPAPERS LTD | [2010] FMCA 502 |
| PRACTICE & PROCEDURE – Transfer of case to Federal Court. |
| Racial Discrimination Act 1975 (Cth), s.18C Federal Magistrates Act 1999 (Cth), s.39(2)(a) Federal Magistrates Court Rules 2001 (Cth), r.8.02(4) |
| Genovese v BGC Construction Pty Limited [2006] FMCA 1507 Verge & Anor v Devere Holdings Pty Ltd & Ors (No 4) [2008] FMCA 1421 Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2003] WLR 1020 Kaplan v Go Daddy Group [2005] NSWSC 636 Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1 Bunt v Tilley [2006] 3 All ER 336 Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574 Jones v Toben [2002] FCA 1150 Jones v Scully [2002] FCA 1080 McGlade v Lightfoot [2002] FCA 1457 Bropho v The Human Rights and Equal Opportunity Commission [2004] FCAFC 16 NAAT v Minister for Immigration (2002) 170 FLR 477 Minister for Immigration v SZANS [2005] FCAFC 41 |
| Applicant: | NATALIE CLARKE |
| Respondent: | WEST AUSTRALIAN NEWSPAPERS LIMITED T/AS THE WEST AUSTRALIAN |
| File Number: | PEG 39 of 2010 |
| Judgment of: | Raphael FM |
| Hearing date: | 6 July 2010 |
| Date of Last Submission: | 6 July 2010 |
| Delivered at: | Perth |
| Delivered on: | 20 July 2010 |
REPRESENTATION
| Counsel for the Applicant: | Mr G McIntyre SC |
| Solicitors for the Applicant: | Aboriginal Legal Service of WA Inc. |
| Counsel for the Respondent: | Mr A V McCarthy |
| Solicitors for the Respondent: | Edwards Wallace |
ORDERS
Matter transferred to Federal Court of Australia.
Costs of the application be costs in the cause.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT PERTH |
PEG 39 of 2010
| NATALIE CLARKE |
Applicant
And
| WEST AUSTRALIAN NEWSPAPERS LIMITED T/AS THE WEST AUSTRALIAN |
Respondent
REASONS FOR JUDGMENT
Ms Clarke, who is a person of the Aboriginal race, tragically lost her three children in a motor vehicle accident on 27 June 2008. On 30 June 2008 the respondent published in its newspaper an article about the accident which identified her as the mother of the three children and referred to the vehicle as being stolen. In the same edition of the newspaper another article was published concerning crime in the Aboriginal community and making reference to a lack of adult supervision of young Aboriginal children. The respondent has a website associated with its print newspaper upon which references to current matters are made by employees of the newspaper and comments are invited from members of the public. This occurred in relation to the events of the 27 June, matters associated with them and the articles which appeared in the newspaper on 30 June. Members of the public commented and their comments were placed upon the website. The applicant considered that these comments had been published by the respondent and comprised:
“An act or acts done, otherwise than in private, which is or are reasonably likely, in all the circumstances, to offend, insult or humiliate the applicant and one of the reasons the act or acts was or were done was because of the Aboriginal race of the applicant.”
The applicant claims that the respondent by publishing on the website comments that are particularised in the Statement of Claim unlawfully discriminated against her in breach of s.18C of the Racial Discrimination Act 1975 (Cth) (“RDA”)
The effect of the respondent’s defence is to deny that s.18C of the RDA applies to the type of conduct pleaded by the applicant and requires the applicant to prove that the public interest exemption contained in s.18D of the RDA does not apply.
Although the matter was commenced in this court on 19 March 2010, by the 31 May 2010 both the applicant and the respondent wished it to be transferred to the Federal Court. On 6 July 2010, after ordering that the parties file submissions, I heard that application.
The power to transfer a proceeding pending in the Federal Magistrates Court to the Federal Court on the application of a party to the proceedings is found in s.39(2)(a) of the Federal Magistrates Act 1999 (the “Act”). The power is discretionary but when an application is made the court is bound to take into account matters which were discussed extensively in the decision of Lucev FM in Genovese v BGC Construction Pty Limited [2006] FMCA 1507 and again by his Honour in Verge & Anor v Devere Holdings Pty Ltd & Ors (No 4) [2008] FMCA 1421. His Honour noted that under s.39(3)(a) to (d) of the Act the court was obliged to take into account:
“(a)any rules of court made for the purposes of sub-section 40(2); and
(b)whether proceedings in respect of an associated matter are pending in the Federal Court; and
(c)whether the resources of the Federal Magistrates Court are sufficient to hear and determine the proceedings; and
(d)the interests of the administration of justice.”
Rule 8.02(4)(a) – (e) of the Federal Magistrates Court Rules 2001 (the “Rules”) provides for other factors to be considered as follow:
“8.02(4)In addition to the factors required to be considered by the Court under subsections 39 (3) and (4) of the Act for transfer of proceedings to the Federal Court or the Family Court, the following factors are relevant:
(a) whether the proceeding is likely to involve questions of general importance, such that it would be desirable for there to be a decision of the Federal Court or the Family Court on one or more of the points in issue;
(b) whether, if the proceeding is transferred, it is likely to be heard and determined at less cost and more convenience to the parties than if the proceeding is not transferred;
(c) whether the proceeding will be heard earlier in the Federal Magistrates Court;
(d) the availability of particular procedures appropriate for the class of proceeding;
(e) the wishes of the parties.”
His Honour found, having regard to the Act, the Rules, the second reading speech and explanatory memorandum to the Federal Magistrates Bill 1999, that the court accepted that the purpose and object of s.39 of the Act and 8.02 of the Rules is to:
“(i)enable the court to deal with less complex matters previously dealt with by the Federal Court;
(ii)ease the workload of the Federal Court by having this court deal with less complex matters;
(iii)enable “more complex matters” “filed in this court to be transferred to the Federal Court; and
(iv)allow more time for the Federal Court to deal with more complex matters.”
I have taken this approach in considering the application made to me. The case made by both the applicant and the respondent is that a transfer is desirable in the interests of the administration of justice because the proceeding is likely to involve a question of general importance, such that it would be desirable for there to be a decision of the Federal Court on one or more of the points in issue. The law relating to the use of websites for the purposes of commentary so far as it touches claims made under the RDA does not appear to be settled. Both parties to this proceeding accept that the correctness and applicability of a decision of Gyles J in Silberberg v The Builders Collective of Australia Inc [2007] FCA 1512 would be an issue of significant controversy. In that case Gyles J concluded that a failure to remove offensive material from the website within a reasonable time was an act contrary to s.18C(1)(a) of the RDA. His Honour also found that it was necessary for the applicant to show that the failure to remove the offensive material was attributable to the race or ethnic origin of the applicant. Although his Honour made reference and considered cases which discussed whether a person who allowed comments to be posted on its website could be considered to have “published” those comments; Godfrey v Demon Internet Ltd [2001] QB 201; [1999] 4 All ER 342; [2000] 3 WLR 1020; Kaplan v Go Daddy Group [2005] NSWSC 636; Universal Music Australia Pty Ltd v Cooper (2005) 150 FCR 1; Bunt v Tilley [2006] 3 All ER 336; Thompson v Australian Capital Television Pty Limited (1996) 186 CLR 574, he did not make a finding that the placing of the material on the internet constituted publication. At [34] his Honour said:
“Based on these authorities it is clear enough that failure to remove known offensive material would be caught by s 18C(1)(a) bearing in mind s 3(3).”
His Honour made reference to the decision of Branson J in Jones v Toben [2002] FCA 1150 where her Honour said at [23]:
“In my view, the placing of material, whether text, graphics, audio or video, on a website which is not password protected is an act which causes words sounds images or writings to be communicated to the public in the sense they are communicated to any person who utilises a browser to gain access to that website. ….
And at [75]:
“I further conclude that the act of placing text and graphics on a website which is not password protected is an act of publication.”
However Gyles J did not specifically adopt the view, which had been expressed by Branson J in the context of an undefended summary judgment application. The respondent in the instant case wishes to argue that the matter is still live and deserves consideration and determination by a court at the same level as those other decisions. The applicant would prefer me to find that the matter was not considered in Silberberg and to follow Jones v Toben (supra) but concedes that the issue is complex and would prefer that it be decided by a court which did not feel constrained by the possibility that it might be bound by these decisions of the Federal Court. The respondent also argues that the question of who bears the burden of proof of the exemption under s.18D of the RDA is also a live issue. Although it has been held to be that of the respondent; Jones v Scully [2002] FCA 1080 [127]; Jones v Toben (supra) at [101], McGlade v Lightfoot [2002] FCA 1457 at [67 – 69] the first matter only made a reference to the second reading speech and the last two matters were uncontested. The respondent points to the views expressed by French J, as he then was, in Bropho v The Human Rights and Equal Opportunity Commission [2004] FCAFC 16 when his Honour said at [75] (obiter):
“While the incidence of the burden of proof of the exemption is not contested on the appeal it is not, in my opinion, a question that should be regarded as settled.”
In the instant case the applicant would argue that the burden of proof lies upon the respondent.
The gravamen of the argument for both the applicant and the respondent was that any decision of this court was likely to result in an appeal whereas the same could not be said for a decision of the Federal Court. It seems to me, with respect to the distinguished advocates on both sides, that this argument has little merit. It is clear from the manner in which the parties in this case are being represented and the case is being fought (including the representations made to me in this application) that both sides consider the case to be of considerable importance. The use of the internet is expanding every day. The popularity of “blogs” and comment sites is universal. Certainly parties such as those who represent the applicant (the Aboriginal Legal Service of Western Australia) and the respondents as newspaper owners and website hosts wish to have a more authoritative determination as to their rights. A realistic approach would indicate that this case is not only bound for appeal to the Full Bench of the Federal Court but possibly to the High Court of Australia. However, that does not answer the question of whether it should be initiated in this court, at the lowest rung of the Federal hierarchy.
I accept the arguments of the parties that the matter is complex, that it involves issues of law which may not have been thoroughly tested in previous decisions and that those matters of law are of considerable importance to the community. These matters weigh very heavily on any decision to transfer.
It would be difficult to say that if the matter was transferred it was likely to be heard and determined at less cost and more convenience to the parties if the proceedings were not transferred. The respondent puts the costs argument in this way. It argues that the Federal Court will not be required to determine whether or not it was bound by other Federal Court decisions and that this would involve a saving of costs and time. My view as to whether this court is bound by the decisions of a single Judge of the Federal Court not sitting on appeal were made clear in NAAT v Minister for Immigration (2002) 170 FLR 477 at [27] and were referred to the by the Full Bench; Weinberg, Jacobson & Lander JJ in Minister for Immigration v SZANS [2005] FCAFC 41 at [35 – 36] where the Full Court held that:
“The authorities to which Raphael FM referred in NAAT certainly lend some support to his Honour’s analysis.”
I do not think that argument upon this topic would effect a significant increase in the costs of the matter before this court and I am quite satisfied that this court’s event based costs system would mean that the losing party has less costs to pay than it would under a Federal Court taxation.
I am satisfied from the enquiries I have made with the Federal Court that this case would be heard earlier in the Federal Magistrates Court, however, the time delay would not be particularly significant. I do not believe that the availability of particular procedures appropriate for the class of proceeding is a relevant matter in this instance.
Both parties wish that this case be transferred. I consider that this is a very significant matter. This seems to me to be clearly a case that the Federal Court would not have transferred down to this court had it been commenced there, given the importance of the matters discussed earlier in this decision. Whilst the interest of justice require that cases should be heard in the courts most appropriate to them, there should still be room for parties’ wishes to be respected. The administration of justice is a public service. Courts are provided so that society’s disputes can be resolved in a peaceable and effective manner. Governments in Australia and elsewhere have chosen to make very significant charges for the provision of this service. The preferences of parties who are required to pay for that service should be respected, if not always indulged.
I have taken into account what I believe are the relevant matters required of me for the determination of this application. I am of the view that on balance it is appropriate that this case be transferred to the Federal Court of Australia and I so order. The costs of this application shall be costs in the cause.
I certify that the preceding fourteen (14) paragraphs are a true copy of the reasons for judgment of Raphael FM
Associate:
Date: 20 July 2010
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