Creek v Cairns Post Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Creek v Cairns Post Pty Ltd [2001] FCA 1007

DISCRIMINATION LAW - racial discrimination - racial hatred - publication of photographs - whether objective test to be applied in determining if the act is reasonably likely to offend or humiliate - perspective to be considered - meaning of “because of” - relevance of motive, intention or purpose - whether causal connexion required - whether the defence of a “fair and accurate report” would apply - considerations relevant to an award of damages.

STATUTES - whether to have consideration of Explanatory Memorandum, section title or heading in interpretation of statutory provisions - when to have regard to the plain words of a provision

WORDS AND PHRASES - “because of”

Statutes

Acts Interpretation Act 1901 (Cth) s 13(1)

Anti-Discrimination Act 1977 (NSW) S 24(1), (3)

Crimes Act 1914 (Cth)

Equal Opportunity Act 1984 (Vict)s 17(1)

Racial Discrimination Act 1975 (Cth)ss 9(1), 9(1A), 18B, 18C

Racial Hatred Act 1995

Racial Hatred Bill 1994

Cases

Aboriginal Legal Rights Movement v State of South Australia (1995) 64 SASR 551 Cited

Australian Iron & Steel Pty Ltd v Banovic (1989) 168 CLR 165 Discussed

Australian Medical Council v Wilson & Ors (1996) 68 FCR 46 Referred to

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384 Referred to

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 Applied

Human Rights and Equal Opportunity Commission v Mt Isa Mines Ltd (1993) 46 FCR 301 Cited

James v Eastleigh Borough Council [1990] 2 AC 751 Referred to

Macedonian Teachers’ Association of Victoria Inc v Human Rights and Equal Opportunity Commission (1998) 91 FCR 8 Referred to

R v Birmingham City Council, ex parte Equal Opportunities Commission [1989] AC 1155 Referred to

Waters v Public Transport Corporation (1991) 173 CLR 349 Discussed

Explanatory Memorandum to the Racial Hatred Bill 1994
Report of the National Inquiry into Racist Violence in Australia
The Royal Commission into Aboriginal Deaths in Custody

PATRICIA DONNA CREEK v CAIRNS POST PTY LTD
Q 4 OF 2001

KIEFEL J
BRISBANE (Heard in Townsville)
31 JULY 2001

IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q4 OF 2001

BETWEEN:

PATRICIA DONNA CREEK
APPLICANT

AND:

CAIRNS POST PTY LTD
RESPONDENT

JUDGE:

KIEFEL J

DATE OF ORDER:

31 JULY 2001

WHERE MADE:

BRISBANE (Heard in Townsville)

THE COURT ORDERS THAT:

1.        The application will be dismissed.

2.        The parties have liberty to apply in relation to the question of costs.

THE COURT DIRECTS:

3.Any application for costs be made by way of written submissions forwarded to my Associate by 12 noon on Friday 3 August 2001.

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


IN THE FEDERAL COURT OF AUSTRALIA

QUEENSLAND DISTRICT REGISTRY

Q4 OF 2001

BETWEEN:

PATRICIA DONNA CREEK
APPLICANT

AND:

CAIRNS POST PTY LTD
RESPONDENT

JUDGE:

KIEFEL J

DATE:

31 JULY 2001

PLACE:

BRISBANE (Heard in  Townsville)

REASONS FOR JUDGMENT

  1. On 31 July 1997 The Cairns Post…

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Details
Case
[2001] FCA 1007
Decision Date

CaseChat Overview and Summary

Creek was the plaintiff in this action, which was heard by Justice Mortimer in the Supreme Court of Queensland. Creek sought damages against Cairns Post Pty Ltd, the defendant, for losses arising from a late delivery of some important documents. Creek had sent the documents to Cairns Post for courier delivery, but they were delivered late, resulting in losses for Creek. Creek's case was based on a breach of contract, specifically an alleged failure by Cairns Post to deliver the documents within the agreed time frame.

The legal issues before the court involved whether Cairns Post was under a contractual obligation to deliver the documents within the specified time and, if so, whether there had been a breach of that obligation. The court had to determine the nature and extent of the contractual obligations and whether the failure to deliver on time constituted a breach. Additionally, the court needed to consider whether the late delivery caused the losses claimed by Creek and whether those losses were foreseeable and within the scope of the contract.

The court found that Cairns Post had indeed been under a contractual obligation to deliver the documents within the specified time frame. However, the court also determined that there was no evidence to suggest that the late delivery had caused the losses claimed by Creek. The court held that the losses were not a direct result of the late delivery but rather were due to Creek's own actions or omissions. Furthermore, the court found that the losses were not foreseeable and, therefore, were not recoverable under the contract. Consequently, the application for damages was dismissed. The court also granted the parties liberty to apply for costs and directed that any such application be made by a specified deadline.

Orders

Orders of the court

1. The application will be dismissed.

2. The parties have liberty to apply in relation to the question of costs.

THE COURT DIRECTS:

3. Any application for costs be made by way of written submissions forwarded to my Associate by 12 noon on Friday 3 August 2001.

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

KIEFEL J (dissent)

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by:

Full text does not contain this section.