FEDERAL COURT OF AUSTRALIA
Eatock v Bolt (No 2) [2011] FCA 1180
Citation: Eatock v Bolt (No 2) [2011] FCA 1180 Parties: PAT EATOCK v ANDREW BOLT and HERALD AND WEEKLY TIMES PTY LTD (ACN 004 113 937) File number: VID 770 of 2010 Judge: BROMBERG J Date of judgment: 19 October 2011 Catchwords: HUMAN RIGHTS – declaration of contravention of s 18C of the Racial Discrimination Act 1975 (Cth) – the extent to which the declaration made should include the Court’s principal findings – whether the terms of an injunction restraining republication of an article should extend to the republication of a substantial part thereof – whether an order requiring the publication of a corrective notice should be made and the terms of such a notice.
COSTS – indemnity costs - Calderbank offer – relevant principles discussed – whether it was unreasonable for the applicant to refuse the respondent’s offer of settlement – whether applicant should pay costs thrown away as a result of the vacation of the trial.
PRACTICE AND PROCEDURE – the extent to which a declaration should include the Court’s principal findings – whether a declaration can be made in the absence of evidence or an agreed statement of facts – whether a declaration can be made in the absence of a contradictor – whether a declaration is to be limited to the facts or matters which the Court is called upon to determine.
Legislation: Australian Human Rights Commission Act 1986 (Cth) s 46PO(4)
Racial Discrimination Act 1975 (Cth) ss 18C, 18D
Cases cited: Ainsworth v Criminal Justice Commission (1992) 175 CLR 564
Alpine Hardwood (Aust) Pty Ltd v Hardys Pty Ltd (No 2) (2002) 190 ALR 121
Australia Wide Airlines Limited v Aspirion Pty Ltd [2006] NSWCA 365
Australian Competition and Consumer Commission v Harris Scarfe (No 2) [2009] FCA 433
Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329
Australian Competition and Consumer Commission v MSY Technology Pty Ltd (No 2) (2011) 279 ALR 609
Australian Competition Consumer Commission v Telstra Corporation Limited [2007] FCA 2058
Australian Competition and Consumer Commission v Willesee Health Care Pty Ltd (No 2) [2011] FCA 752
Becker v Queensland Investment Corporation and Bovis Lend Lease Pty Ltd (No 2) [2009] ACTSC 147
Black v Lipovak (1998) 217 ALR 386
Calderbank v Calderbank [1975] 3 All ER 333
Citron v Zundel (2002) 41 CHRR D/274 (CHRT)Creek v Cairns Post Pty Ltd (2001) 112 FCR 352
Cruse v Multiplex Limited (2008) 172 FCR 279
Eatock v Bolt [2011] FCA 1103
Grbavac v Hart [1997] 1 VR 154
John Goss Projects Pty Ltd v Thiess Watkins White Constructions Ltd (In liq) [1995] 2 Qd R 591
Jones v Scully (2002) 120 FCR 243
Jones v Toben [2002] FCA 1150
Review 2 Pty Ltd v Redberry Enterprises Pty Ltd (No 2) [2008] FCA 1805
Seven Network Ltd v News Ltd (2007) 244 ALR 374
Silberberg v The Builders Collective of Australia (2007) 164 FCR 475
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- AGLC
- Eatock v Bolt (No 2) [2011] FCA 1180
- Case
- [2011] FCA 1180
- Decision Date
CaseChat Overview and Summary
The court found that the articles did contravene section 18C of the Racial Discrimination Act 1975 (Cth), as they were reasonably likely to offend, insult, humiliate, or intimidate some Aboriginal persons of mixed descent. The court held that the articles conveyed imputations that these persons were not genuinely Aboriginal, which was discriminatory. The court issued a declaration detailing the contravention and its findings, restrained the respondents from republishing the articles or substantial parts thereof, and ordered the publication of a corrective notice. In terms of costs, the court held that it was unreasonable for the applicant to refuse the respondent’s offer of settlement, leading to an order for indemnity costs against the applicant. The respondents were ordered to pay the costs of the applicant, except for those thrown away due to the vacation of the trial.
The final orders of the court included declarations that the articles contravened the Racial Discrimination Act 1975 (Cth), restrained the respondents from republishing the articles or substantial parts thereof, and mandated the publication of a corrective notice. The court also ordered the payment of costs between the parties, with the applicant paying the reserved costs of the respondents and the respondents paying the costs of the applicant, except for those incurred due to the vacation of the trial.
Orders
Orders of the court
THE COURT DECLARES THAT:
1. On 15 April 2009, the Herald and Weekly Times Pty Ltd published in the Herald Sun newspaper an article written for publication by Andrew Bolt under the title “It’s so hip to be black”. On or about 15 and 16 April 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White is the new black”. On 21 August 2009, the Herald and Weekly Times Pty Ltd published a second article written for publication by Andrew Bolt in the Herald Sun newspaper under the title “White fellas in the black”. On 21 August 2009, that article was also published by the Herald and Weekly Times Pty Ltd on its website, under the title “White fellas in the black” (collectively “the Newspaper Articles”).
2. The writing of the Newspaper Articles for publication by Andrew Bolt and the publication of them by the Herald and Weekly Times Pty Ltd contravened s 18C of the Racial Discrimination Act 1975 (Cth) and was unlawful in that:
(a) the articles were reasonably likely to offend, insult, humiliate or intimidate some Aboriginal persons of mixed descent who have a fairer, rather than darker, skin and who by a combination of descent, self-identification and communal recognition are and are recognised as Aboriginal persons, because the articles conveyed imputations to those Aboriginal persons that:
(i) there are fair-skinned people in Australia with essentially European ancestry but with some Aboriginal descent, of which the individuals identified in the articles are examples, who are not genuinely Aboriginal persons but who, motivated by career opportunities available to Aboriginal people or by political activism, have chosen to falsely identify as Aboriginal; and
(ii) fair skin colour indicates a person who is not sufficiently Aboriginal to be genuinely identifying as an Aboriginal person.
(b) the Newspaper Articles were written and published, including because of the race, ethnic origin or colour of those Aboriginal persons described by the articles; and
(c) that conduct was not exempted from being unlawful by s 18D of the Racial Discrimination Act 1975 (Cth) because the Newspaper Articles were not written or published reasonably and in good faith:
(i) in the making or publishing of a fair comment on any event or matter of public interest; or
(ii) in the course of any statement, publication or discussion, made or held for a genuine purpose in the public interest.
AND THE COURT ORDERS THAT:
3. On two occasions within 14 days of the date of this Order, the Second Respondent, publish in the Herald Sun newspaper (both in print and online) in a position immediately adjacent to the First Respondent’s regular column, a corrective notice in the form of the annexure to these Orders and of the same or similar size.
4. (a) The Respondents, whether by their servants, their agents or howsoever otherwise, are restrained from further publishing or republishing the Newspaper Articles or any substantial parts thereof.
(b) This Order does not prevent the Second Respondent from continuing to publish the Newspaper Articles on the Herald Sun website for historical or archival purposes, provided that such publication is accompanied by an immediately adjacent and prominent publication of a corrective notice in the form of the annexure to these Orders and of the same or similar size.
5. The Applicant pay the costs of the Respondents reserved by the order made on 10 December 2010, to be taxed if not agreed
6. The Respondents pay the costs of the Applicant, other than any costs of the directions hearing held on 10 December 2010 and any costs thrown away by reason of the vacation of the trial due to have commenced on 13 December 2010, to be taxed if not agreed.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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