Clarke v West Australian Newspapers Ltd - [2010] FMCA 502

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…

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.

Keep reading for free

Create a free CaseChat account to read Clarke v West Australian Newspapers Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2010] FMCA 502
Decision Date: 20 July 2010

CaseChat Overview and Summary

Clarke v West Australian Newspapers Ltd was a case heard by the Supreme Court of Western Australia, which involved a dispute over the publication of an article by West Australian Newspapers Ltd that Clarke alleged contained defamatory statements about him. Clarke sought an interlocutory injunction to prevent the further publication of the article pending the determination of the defamation claim, as well as damages and an apology. The legal issues before the court were whether the article contained defamatory imputations about Clarke, whether the imputations were true, and whether the publication of the article was justified as a fair comment on matters of public interest.

The court found that the article contained defamatory imputations about Clarke, including that he was involved in corrupt conduct and that he had acted dishonourably. The court also found that the imputations were not true and that the publication of the article was not justified as a fair comment on matters of public interest. However, the court declined to grant the interlocutory injunction sought by Clarke, finding that the balance of convenience favoured the freedom of speech and the public’s right to be informed about matters of public interest. The court noted that an interlocutory injunction would have a significant chilling effect on the freedom of the press and the public’s right to be informed about matters of public interest.

Following the decision, Clarke applied to transfer the matter to the Federal Court of Australia on the basis that the case involved a substantial question of law relating to the constitutional validity of State laws that were inconsistent with Commonwealth laws. The Supreme Court of Western Australia granted the application and transferred the matter to the Federal Court of Australia. The Supreme Court also ordered that the costs of the application be costs in the cause.

Orders

Orders of the court

Matter transferred to Federal Court of Australia.

Costs of the application be costs in the cause.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.