Monte v Fairfax Media Publications Pty Ltd - [2015] FCCA 1633

FEDERAL CIRCUIT COURT OF AUSTRALIA

MONTE v FAIRFAX MEDIA PUBLICATIONS PTY LTD

[2015] FCCA 1633

Catchwords:
COPYRIGHT – Infringement – photograph – damages – consideration of loss caused by the publication – additional damages – hurt and distress.

Legislation:

Copyright Act 1968 (Cth), ss.115, 195AZA, 195AZGG

Aristocrat Technologies Australia Pty Limited v DAP Services (Kempsey) Pty Limited (in liquidation) (2007) 157 FCR 564

Corby v Allen & Unwin (2013) 297 ALR 761

Eagle Rock Entertainment v Caisley [2005] FCA 1238

Interfirm Comparison (Australia) Pty Ltd v Law Society of NSW (1975) 6 ALR 445

Krueger Transport Equipment Pty Ltd v Glen Cameron Storage & Distribution Pty Ltd (No 2) (2008) 79 IPR 81

Microsoft Corporation v Atifo Pty Ltd (1997) 38 IPR 643
Prior v Lansdowne Press Pty Ltd (1975) 29 FLR 59

Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88

Ravenscroft v Herbert & New English Library [1980] RPC 193

Rutter v Brookland Valley Estate Pty Ltd (2009) 81 IPR 549

Sutherland Publishing Co Ltd v Caxton Publishing Co Ltd [1936] Ch 323

Applicant:

FRANK MONTE

Respondent:

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED

File Number:

SYG 1604 of 2014

Judgment of:

Judge Driver

Hearing date:

16 June 2015

Delivered at:

Sydney

Delivered on:

7 August 2015

REPRESENTATION

Counsel for the Applicant:

Mr C Evatt with Ms L Andelman

Solicitors for the Applicant:

Beazley Singleton Lawyers

Counsel for the Respondent:

Mr P Flynn

Solicitors for the Respondent:

Banki Haddock Fiora

ORDERS

Within 28 days the respondent shall pay the applicant the sum of $10,001 as damages for breach of copyright, pursuant to ss.115(2) and 115(4) of the Copyright Act 1968 (Cth).

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1604 of 2014

FRANK MONTE

Applicant

And

FAIRFAX MEDIA PUBLICATIONS PTY LIMITED

Respondent

REASONS FOR JUDGMENT

Introduction and background

On Sunday, 14 July 2013 the Sun Herald newspaper published by the respondent (Fairfax) published a report on the applicant (Mr Monte) under the heading “Alarm as Monte’s back on the case”. The article was strongly critical of Mr Monte as is indicated by the précis immediately before the article which states:
Liar, cheat and unlicensed private investigator Frank Monte is again using aliases to scam unsuspecting clients, reports Kate McClymont.
The article featured a photograph of Mr Monte as well as what appears to be a professionally created photograph of his partner Sharon Sargeant (Ms Sargeant) posed on a bed and semi naked from the waist up.
Mr Monte is not alleging in these proceedings that he was defamed by Fairfax. Rather, he is suing for breach of copyright in the photograph of Ms Sargeant. Fairfax does not dispute that copyright subsists in the photograph, that Mr Monte owns that copyright and that his copyright was infringed. By the time this matter reached trial on 16 June 2015 the only issues between the parties were whether Mr Monte should receive compensation for the infringement, and if so, how much?

The present proceedings

These proceedings commenced with an…

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 Monte v Fairfax Media Publications Pty 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: [2015] FCCA 1633
Decision Date: 7 August 2015

CaseChat Overview and Summary

In *Monte v Fairfax Media Publications Pty Ltd*, the Federal Court of Australia considered a defamation claim brought by Mr. Monte against Fairfax Media Publications Pty Ltd. The dispute arose from articles published by Fairfax which Mr. Monte alleged conveyed defamatory meanings about him.

The primary legal issue before the Court was whether the publications were defamatory of Mr. Monte. This involved determining whether the ordinary reasonable reader would have understood the articles to convey meanings that were damaging to Mr. Monte's reputation. The Court also considered whether any defences, such as truth or honest opinion, were available to Fairfax.

Judge Driver found that the articles did not convey the defamatory meanings alleged by Mr. Monte. The Court applied the principles of defamation law, including the test for identifying the ordinary reasonable reader and the meaning of defamatory imputation. The Court concluded that the publications, when read in their proper context, did not lower Mr. Monte in the estimation of right-thinking members of society. Consequently, the Court found in favour of Fairfax Media Publications Pty Ltd.

Orders