Cox v Becker

[2006] FCA 1837

FEDERAL COURT OF AUSTRALIA

Cox v Becker [2006] FCA 1837

WADE COX AND CHRISTIAN CHURCHES OF GOD v DOUGLAS BECKER, FATHI SAID IXWEBHOSTING, YAHOO.COM/7, GAVIN RUMNEY AND GOOGLE.COM
ACD 25 OF 2006

WADE COX AND CHRISTIAN CHURCHES OF GOD v DOUGLAS BECKER, FATHI SAID IXWEBHOSTING, YAHOO.COM/7, GAVIN RUMNEY AND GOOGLE.COM
ACD 33 OF 2006

MADGWICK J
14 DECEMBER 2006
SYDNEY (BY VIDEO CONFERENCE LINK TO CANBERRA)

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 25 OF 2006

BETWEEN:

WADE COX
First Applicant

CHRISTIAN CHURCHES OF GOD
Second Applicant

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

GOOGLE.COM
Fifth Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	14 DECEMBER 2006
WHERE MADE:	SYDNEY (BY VIDEO CONFERENCE LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.The proceedings be dismissed pursuant to Order 20 rule 2.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 33 OF 2006

BETWEEN:

WADE COX
First Applicant

CHRISTIAN CHURCHES OF GOD
Second Applicant

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

GOOGLE.COM
Fifth Respondent

JUDGE:	MADGWICK J
DATE OF ORDER:	14 DECEMBER 2006
WHERE MADE:	SYDNEY (BY VIDEO CONFERENCE LINK TO CANBERRA)

THE COURT ORDERS THAT:

1.        The proceedings be dismissed pursuant to Order 20 rule 2.

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

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 25 OF 2006

BETWEEN:

WADE COX
First Applicant

CHRISTIAN CHURCHES OF GOD
Second Applicant

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

GOOGLE.COM
Fifth Respondent

IN THE FEDERAL COURT OF AUSTRALIA
AUSTRALIAN CAPITAL TERRITORY DISTRICT REGISTRY	ACD 33 OF 2006

BETWEEN:

WADE COX
First Applicant

CHRISTIAN CHURCHES OF GOD
Second Applicant

AND:

DOUGLAS BECKER
First Respondent

FATHI SAID IXWEBHOSTING
Second Respondent

YAHOO.COM/7
Third Respondent

GAVIN RUMNEY
Fourth Respondent

GOOGLE.COM
Fifth Respondent

JUDGE:	MADGWICK J
DATE:	14 DECEMBER 2006
PLACE:	SYDNEY (BY VIDEO CONFERENCE LINK TO CANBERRA)

REASONS FOR JUDGMENT

HIS HONOUR:

1. Following the rejection by Gyles J of the applicants’ application to serve their proceedings on the foreign respondents, because there was no prima facie case shown for the cause of action pleaded namely breach of the Racial Discrimination Act 1975 (Cth), the applicants have now filed new proceedings so as to sue, among other parties, the Australian registered corporation known as Yahoo and the Australian corporation known as Google, and to allege against them breaches of s 52 of the Trade Practices Act 1974 (Cth). By the new set of proceedings, the applicants also seek to sue all respondents for defamation. The new application also sought to transfer all of the documentation and relief sought in the previously dealt with (in another Court) and current proceedings to be consolidated in the one file.

2. Misleading and/or deceptive conduct is said to exist in the case of Yahoo by its continuing to display online ‘group’ material of which the other principal and foreign respondents are the authors, even though the allegedly scandalous, misleading and deceptive nature of the information has been pointed out to Yahoo. In the case of Google, what is complained of is its continuing to maintain records which will direct a Google searcher to the internet material of the foreign respondents of which the applicants complain. The liability of Yahoo and Google is therefore said to be essentially accessorial in nature. As far as I can see there is no principal corporation for the misleading or deceptive conduct of which either Yahoo or Google might be accessorily liable. While s 6 of the Trade Practices Act provides for a wider definition of ‘corporation’, so as to include individuals in the Australian Capital Territory carrying on business, that does not change the outcome of this case.  It therefore seems that there is no reasonable prospect of success for that cause of action against Yahoo or Google. 

3. Indeed, I think the fair inference is that the Trade Practices Act claims against those two corporations have been conceived as a means of vesting this court with jurisdiction in defamation to deal with all present and intended respondents.  As the Trade Practices Act claim is, in my opinion, merely colourable, I think the Court has no jurisdiction in defamation, and I therefore summarily dismiss the newly filed proceedings.  There appears to me to be a prima facie case of defamation against all respondents but, regrettably, it seems to me that this Court is not the proper forum for ventilation of those claims. 

4. I also dismiss the original set of proceedings in this Court, which were brought under the Racial Discrimination Act.

5. In these circumstances, both proceedings in their entirety are dismissed under O 20 r 2.

I certify that the preceding five (5) numbered paragraphs are a true copy of the Reasons for Judgment herein of the Honourable Justice Madgwick.

Associate:
Dated:        12 January 2007

Counsel for the Applicant:	The First Applicant appeared on behalf of the Applicants
Counsel for the Respondents:	There was no appearance by the Respondents
Date of Hearing:	14 December 2006
Date of Judgment:	14 December 2006