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Toben v Jones

Toben v Jones

Case [2012] FCA 1193 31 October 2012

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FEDERAL COURT OF AUSTRALIA
Toben v Jones [2012] FCA 1193

Citation: Toben v Jones [2012] FCA 1193

Parties: GERALD FREDRICK TOBEN v JEREMY SHAUN JONES

File number: SAD 108 of 2012

Judge: YATES J

Date of judgment: 31 October 2012

Catchwords: PRACTICE AND PROCEDURE – application to strike out originating application and statement of claim as an abuse of process and for pleading deficiencies – whether claim for defamation statute-barred – whether allegation of misleading or deceptive conduct properly pleaded

Legislation: Competition and Consumer Act 2010 (Cth) Sch 2
Federal Court Rules 2011 rr 16.02, 16.21, 16.41, 16.43
Limitation Act 1969 (NSW) s 14B

Cases cited: Australian Competition and Consumer Commission v Jutsen (No 3) (2011) 285 ALR 110
Barton v The Queen (1980) 147 CLR 75
Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76
Clyne v The New South Wales Bar Association (1960) 104 CLR 186
Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594
David v Abdishou [2012] NSWCA 109
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Fasold v Roberts (1997) 70 FCR 489
Giraffe World Australia Pty Limited v Australian Competition and Consumer Commission (1999) ATPR ¶41-669
Houghton v Arms (2006) 225 CLR 553
McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191
R v Grassby (1988) 15 NSWLR 109
Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449
Taylor v Crossman (No 2) (2012) 199 FCR 363
Toben v Jones [2012] FCA 444
Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 134 FCR 422
Williams v Spautz (1992) 174 CLR 509

Date of hearing: 1 August 2012

Place: Sydney

Division: GENERAL DIVISION

Category: Catchwords

Number of paragraphs: 60

Counsel for the Applicant: Ms JE Rawlings

Solicitor for the Applicant: Carters Law Firm

Counsel for the Respondent: Mr MA Friedgut

Solicitor for the Respondent: Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SAD 108 of 2012

BETWEEN:
GERALD FREDRICK TOBEN
Applicant

AND:
JEREMY SHAUN JONES
Respondent

JUDGE:

YATES J

DATE OF ORDER:

31 OCTOBER 2012

WHERE MADE:

SYDNEY

THE COURT ORDERS THAT:
1.The originating application and statement of claim be struck out.
2.The proceeding be stayed permanently.
3.The applicant pay the respondent’s costs of the proceeding including the interlocutory application filed on 22 June 2012.

Note: Settlement and entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

GENERAL DIVISION

SAD 108 of 2012

BETWEEN:
GERALD FREDRICK TOBEN
Applicant

AND:
JEREMY SHAUN JONES
Respondent

JUDGE:

YATES J

DATE:

31 OCTOBER 2012

PLACE:

SYDNEY

REASONS FOR JUDGMENT

The respondent seeks to strike out the originating application and statement of claim that have been filed in this proceeding. The respondent relies…

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.

Continue reading Toben v Jones

Details

AGLC: Toben v Jones [2012] FCA 1193
Case: [2012] FCA 1193
Decision Date: 31 October 2012

CaseChat Overview and Summary

The case of Toben v Jones involved the applicant, David Toben, suing the respondent, Stephen Jones, for defamation. The matter was heard in the Federal Court of Australia, where Toben sought to strike out Jones's originating application and statement of claim. Toben argued that the claim was statute-barred and that the pleading of misleading or deceptive conduct was deficient. The court had to determine whether the originating application and statement of claim should be struck out as an abuse of process and whether the claim for defamation was indeed statute-barred.

The court examined the legal issues by first considering whether the originating application and statement of claim were an abuse of process. The court also had to assess whether the defamation claim was statute-barred and if the allegation of misleading or deceptive conduct was properly pleaded. The court found that the originating application and statement of claim were an abuse of process, given that the proceedings were brought for an improper purpose, specifically to harass Toben. The court further determined that the defamation claim was statute-barred and that the pleading of misleading or deceptive conduct was deficient.

Given the findings, the court ordered the originating application and statement of claim to be struck out. The proceeding was permanently stayed, and Toben was ordered to pay Jones's costs of the proceeding, including the interlocutory application filed on 22 June 2012. This decision highlights the importance of ensuring that legal proceedings are brought for proper purposes and that claims are properly pleaded and not statute-barred.

Orders

Orders of the court

1. The originating application and statement of claim be struck out.

2. The proceeding be stayed permanently.

3. The applicant pay the respondent’s costs of the proceeding including the interlocutory application filed on 22 June 2012.

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.

Citations

AGLC Citation

Toben v Jones [2012] FCA 1193

Most Recent Citation

CPA Australia v Storai [2015] VSC 442

Cases citing this decision · 22 of 22 shown

Staged Plus Pty Ltd v Yummi Fruit Ice-Creamery Pty Ltd
[2024] QDC 88 Para 1

…ternet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on the inter…
Teddo Corporation Pty Ltd v Owners Corporation No 1
[2022] VSC 667 Para 1

…lusion that what has taken place is unconscionable”.[15] [12] MacFadyen & Ellis v Bank of Queensland (No 2) [2014] VSC 653, [44] (Sifris J). [13] Toben v Jones (2012) 298 ALR 203, 210 [35] (Yates J). [14] MacFadyen & Ellis v Bank of Queensland (No 2) [2014] VSC 653, [44] (Sifris J). [15] Olson v Keefe (No 3) [2018] FCA…
Randell v McLachlain
[2022] NSWDC 506

…on an internet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on t…
Smith v National Australia Bank Limited
[2022] FCA 1186 Para 13

…onduct must be in trade or commerce; conduct “in relation to” or “in connection with” trade or commerce will not be sufficient: Toben v Jones [2012] FCA 1193; (2012) 298 ALR 203 (at 211 [40] per Yates J), cited in Fletcher v Nextra Australia Pty Ltd [2015] FCAFC 52 (at [31] per Jackson J).…
Tucker v McKee
[2022] FCAFC 98 Para 13

…erial. See Dow Jones & Company Inc v Gutnick . [Footnote omitted] [59] Similar observations were earlier made by Yates J in Toben v Jones [2012] FCA 1193 at [19]: … In any event, “downloading” in and of itself may not necessarily be sufficient to constitute the communication that is required for publication, altho…
De Kauwe v Cohen [No 4]
[2022] WASC 35 (S)

…d [2005] EWCA Civ 288; [2005] All ER (D) 55 (Mar) Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Tinkler v Ferguson [2019] EWCA Civ 819 Toben v Jones [2012] FCA 1193; [2012] 298 ALR 203 Toogood v Spyring (1834) 1 Cr M & R 181, 193; (1834) 149 ER 1044 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Trkulja v Go…
De Kauwe v Cohen [No 4]
[2022] WASC 35

…d [2005] EWCA Civ 288; [2005] All ER (D) 55 (Mar) Tabet v Gett [2010] HCA 12; (2010) 240 CLR 537 Tinkler v Ferguson [2019] EWCA Civ 819 Toben v Jones [2012] FCA 1193; [2012] 298 ALR 203 Toogood v Spyring (1834) 1 Cr M & R 181, 193; (1834) 149 ER 1044 Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 Trkulja v Go…
Tucker v McKee
[2021] FCA 828 Para 14

…Similar observations were earlier made by Yates J in Toben v Jones [2012] FCA 1193 at [19]: … In any event, “downloading” in and of itself may not necessarily be sufficient to constitute the communication that is required for publication, although it will be a necessary antecedent step for that purpose in this con…
Stoltenberg v Bolton
[2020] NSWCA 45

…d on an internet site. [19] With one apparently anomalous exception, the same approach has consistently been taken in Australia. So, in Toben v Jones [2012] FCA 1193 and MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206 it was held that a plaintiff claiming to have been defamed by material posted on…
Ejueyitsi v Victorian Legal Admissions Board
[2020] FCA 165 Para 13

…for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 (at [40]) and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.…
Zaghloul v Woodside Energy Limited (No 7)
[2019] FCA 818 Para 26

…f, or for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 at [40] and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision. 23 Concrete Constructions made…
Inserve Australia Ltd v Kinane
[2018] QCA 116

…nald v Dods [2017] VSCA 129, cited Nash v Lynde [1929] AC 158, cited Sims v Jooste (No 2) [2016] WASCA 83, considered Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193, considered COUNSEL: T Matthews QC for the applicants The respondent appeared on his own behalf SOLICITORS: Merlo Law for the applicants The respondent…
Eggerth v EPI International Pty Ltd
[2017] FCA 1547 Para 11

…onclusion and that alone justifies the striking out of the paragraph. In this respect he relied upon the observations of Yates J in Toben v Jones (2012) 298 ALR 203 at [35], [37] – [41]. However, there, his Honour was addressing the situation where the pleading had not identified any facts from which it might be disc…
Toben v Nationwide News Pty Ltd
[2016] NSWCA 296 Para 10

…e struck out; but in any event stayed the proceedings permanently on the basis that they were an abuse of process ( Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193). Dr Toben emphasises, correctly, in the present proceedings (see T 21.5) that the basis on which the Federal Court defamation proceedings were found…
Maritime Union of Australia v Fair Work Ombudsman
[2016] FCAFC 102 Para 15

…to the phrase “in trade or commerce” in the former s 52 of the Trade Practices Act 1974 (Cth): Toben v Jones (2012) 298 ALR 203 at [40] (Yates J) and the cases there cited. In Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594, Toohey J at 614 said of the phrase “in trade or commerce”: “… The quest…
Bride v Shire of Katanning
[2016] FCA 65 Para 22

…f, or for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 at [40] and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.…
Toben v Nationwide News Pty Ltd; Toben v Mathieson
[2015] NSWSC 1784 Para 3

…ed that the commencement of the proceeding was an abuse of the court’s process and ordered that the proceeding be stayed permanently: Toben v Jones [2012] FCA 1193.…
CPA Australia Ltd v Storai
[2015] VSC 442 Para 1

…er in and of themselves. [37] Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153, 165 [31] (Middleton, McKerracher and Davies JJ), citing Toben v Jones (2012) 298 ALR 203, 211[40] (Yates J). [38] Hearn v O’Rourke (2003) 129 FCR 64, 73 (Dowsett J) (dissenting) (the judgment of Dowsett J was approved in Village Build…
SGLB v PAB
[2015] QMC 8

…411 Packer v Meagher [1984] 3 NSWLR 486 Re Majory [1955] Ch 600 Goldsmith v Speerings Ltd [1977] 2 All ER 566 Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193 Metall & Rohstoff v Donaldson Lufkin & Jenrette Inc [1990] 1 QB 391; 3 All ER 14 Trade Practices Commission v TNT Aust Pty Ltd (1994) ATPR 41-296 (FCA) Whi…
Fletcher v Nextra Australia Pty Ltd
[2015] FCAFC 52 Para 11

…the course of, or for the purposes of, carrying on some overall trading or commercial business. As Yates J noted in Toben v Jones (2012) 298 ALR 203 (at [40]) and the authorities there cited, conduct “in relation to” or “in connection with” trade or commerce is not sufficient to engage the provision.…
Nextra Australia Pty Limited v Fletcher
[2014] FCA 399 Para 7

…in a trade or industry magazine, would not be engaging in conduct in trade or commerce. As Yates J observed in Toben v Jones (2012) 298 ALR 203; [2012] FCA 1193 at [42], without more the simple act of publication of a monthly magazine and a free email news and commentary service does not constitute conduct in tra…
Ezekiel-Hart v Law Society of the Australian Capital Territory
[2013] FCA 725 Para 16

…(1998) 42 IPR 1 at 3; McKellar and Another v Container Terminal Management Services Ltd and Others (1999) 165 ALR 409 at [21]-[31]; Toben v Jones (2012) 298 ALR 203 at [26]‑[34]. This was not done by the proposed amendment. It is not necessary for me to engage with the applicant’s bizarre and unexplained reliance on…

View all 22 citing cases →

Cases cited in this decision · 23 of 23 shown

Antov v Bokan (No 3)
[2019] NSWCA 265 Para 24

…The Court has power to prevent an abuse of its process. That power extends to ordering a stay of proceedings: Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201; Barton v The Queen (1980) 147 CLR 75 at 96, 107 and 116; Williams v Spautz (1992) 174 CLR 509 at 518. Such an abuse wil…
Warren v Warren
[2018] QCA 192 Para 15

…8]) indicate, proof that a defamatory letter was sent through the post is prima facie evidence of publication to the person to whom it was addressed: Warren v Warren (1834) 1 C M & R 250. The contents of defamatory matter in a telegram are "necessarily communicated to all clerks through whose hand it passes": Williamson…
Toben v Jones
[2012] FCA 444 Para 20

…uck off”. The interlocutory application came before Mansfield J who, on 3 May 2012, made orders refusing that relief, with costs: Toben v Jones [2012] FCA 444. On 18 May 2012 the applicant wrote to the respondent in the following terms with respect to that proceeding: FEDERAL COURT PROCEEDINGS NSD 327 of 2001 You…
David v Abdishou
[2012] NSWCA 109 Para 15

…In this connection, the applicant relies on the following passage from David v Abdishou [2012] NSWCA 109 at [286] where McColl JA (with whom Beazley JA (at [1]) and Sackville AJA (at [392])) agreed: It is self-evident that a plaintiff can prove publication without calling evidence in every case that the matter comp…
Taylor v Crossman (No 2)
[2012] FCAFC 11 Para 17

…ntravening s 18 of the ACL when acting in the trade or commerce of his employer: Houghton v Arms (2006) 225 CLR 553 at [35]; Taylor v Crossman (No 2) (2012) 199 FCR 363 at [44]. But these particulars do not carry the matter much further. They are expressed in omnibus form and at a level of generality that leaves unan…
Australian Competition and Consumer Commission v Jutsen
[2010] FCA 961 Para 9

…In the course of the hearing I raised the question of the jurisdictional basis on which the applicant sought to advance his case under s 18 of the ACL. I was informed that the applicant relied on the extended operation given by s 6(3) of the Competition and Consumer Act 2010 (Cth) to the ACL as a la…
Campaign Master (UK) Ltd v Forty Two International Pty Ltd
[2008] FCA 979 Para 24

…predominant purpose, not sole purpose. The relevant principles are summarised in Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 at [37]-[51] in the context of setting aside a subpoena. The same general principles apply here.…
Houghton v Arms
[2006] HCA 59 Para 17

…may be accepted that an employee may be capable of contravening s 18 of the ACL when acting in the trade or commerce of his employer: Houghton v Arms (2006) 225 CLR 553 at [35]; Taylor v Crossman (No 2) (2012) 199 FCR 363 at [44]. But these particulars do not carry the matter much further. They are expressed in omnib…
Village Building Co Ltd v Canberra International Airport Pty Ltd
[2004] FCAFC 240 Para 13

…y Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 at [25]-[50]; Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 134 FCR 422 at [43]-[54] and [59]; and Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at [172]-[194]…
Dow Jones & Co Inc v Gutnick
[2002] HCA 56 Para 11

…ation of the defamatory material: Webb v Bloch (1928) 41 CLR 331 at 363; R v Grassby (1988) 15 NSWLR 109 at 114. In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 the plurality (at [25]-[27]) said: The tort of defamation, at least as understood in Australia, focuses upon publications causing damage to reputatio…
Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc
[2002] FCA 860 Para 13

…Ltd (2004) 134 FCR 422 at [43]-[54] and [59]; and Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 at [172]-[194]. These cases make clear that it is not sufficient to attract the operation of the statutory proscription that the impugned conduct be “in r…
McKellar v Container Terminal Management Services Ltd
[1999] FCA 1639 Para 6

…In McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 at [21]-[31] Weinberg J helpfully set out the principles explaining the need for a pleading to contain the material allegations of fact on which the pleading party relies. At [25]-[27] his Honour said: For a statement of claim to disclose a c…
Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd
[1999] FCA 1527 Para 13

…ch the requirement of “in trade or commerce” was discussed extensively. I refer, in particular, to Fasold v Roberts (1997) 70 FCR 489 at 526-531; Giraffe World Australia Pty Limited v Australian Competition and Consumer Commission (1999) ATPR ¶41-669 at 42,540; Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 at [25]-[50]; Village Building Co Ltd v Canberra Intern…
Robin Pty Ltd v Canberra International Airport Pty Ltd
[1999] FCA 1019 Para 13

…y Limited v Australian Competition and Consumer Commission (1999) ATPR ¶41-669 at 42,540; Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 at [25]-[50]; Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 134 FCR 422 at [43]-[54] and [59]; and Orion Pet Products Pty Ltd v…
Fasold v Roberts
[1997] FCA 439 Para 13

…a number of authorities in which the requirement of “in trade or commerce” was discussed extensively. I refer, in particular, to Fasold v Roberts (1997) 70 FCR 489 at 526-531; Giraffe World Australia Pty Limited v Australian Competition and Consumer Commission (1999) ATPR ¶41-669 at 42,540; Robin Pty Ltd v Canberra…
Williams v Spautz
[1992] HCA 34 Para 24

…gs: Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201; Barton v The Queen (1980) 147 CLR 75 at 96, 107 and 116; Williams v Spautz (1992) 174 CLR 509 at 518. Such an abuse will occur where a proceeding is commenced not for the purpose of vindicating the claimant’s rights advanced in that proceeding…
Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd
[1988] FCA 73 Para 6

…nection between the impugned conduct and such loss as is said to have been suffered by the applicants: Bond Corp Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215 at 222; 71 ALR 125 per French J, cited with approval by Burchett J in Multigroup Distribution Services Pty Ltd and by Goldberg J in Mitanis . In Trut…
Barton v the Queen
[1980] HCA 48 Para 24

…cess. That power extends to ordering a stay of proceedings: Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201; Barton v The Queen (1980) 147 CLR 75 at 96, 107 and 116; Williams v Spautz (1992) 174 CLR 509 at 518. Such an abuse will occur where a proceeding is commenced not for the purpose of vind…
Clyne v New South Wales Bar Association
[1960] HCA 40 Para 24

…Court has power to prevent an abuse of its process. That power extends to ordering a stay of proceedings: Clyne v The New South Wales Bar Association (1960) 104 CLR 186 at 201; Barton v The Queen (1980) 147 CLR 75 at 96, 107 and 116; Williams v Spautz (1992) 174 CLR 509 at 518. Such an abuse will occur where a procee…
Webb v Bloch
[1928] HCA 50 Para 11

…the respondent points to the principle that, in the context of defamation, publication is the communication of the defamatory material: Webb v Bloch (1928) 41 CLR 331 at 363; R v Grassby (1988) 15 NSWLR 109 at 114. In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 the plurality (at [25]-[27]) said: The tort o…
Concrete Constructions (NSW) Pty Ltd v Nelson
[1990] HCA 17 Para 10

…y proscription of s 52 of the Trade Practices Act 1974 (Cth) was discussed by the High Court in Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594. There the plurality (Mason CJ and Deane, Dawson and Gaudron JJ) stressed that the phrase “in trade or commerce” has a restrictive operation. The statuto…
Dow Jones & Company Inc v Gutnick
[2002] HCA 5610 Para 11

…ation, publication is the communication of the defamatory material: Webb v Bloch (1928) 41 CLR 331 at 363; R v Grassby (1988) 15 NSWLR 109 at 114. In Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 the plurality (at [25]-[27]) said: The tort of defamation, at least as understood in Australia, focuses upon publications causing damage…
[1937] 1 KB 818
[1937] 1 KB 818 Para 15

…ation may also take place where defamatory matter is placed on a notice board in a position in which it could be read by any passer by: Byrne v Deane [1937] 1 KB 818 (at 829) per Greer LJ; see also Greene LJ (at 838).…

Legislation cited in this decision · 5

Federal Court Rules 2011 (Cth)
16.02, 16.21, 16.41, 16.43 5 mentions (from Para 1)
Limitation Act 1969 (NSW)
14B 2 mentions (from Para 8)
Competition and Consumer Act 2010 (Cth)
1 mention (from Para 2)
Defamation Act 2005 (TAS)
1 mention (from Para 22)
Trade Practices Act 1974 (Cth)
1 mention (from Para 10)

Citation:		Toben v Jones [2012] FCA 1193
Parties:		GERALD FREDRICK TOBEN v JEREMY SHAUN JONES
File number:		SAD 108 of 2012
Judge:		YATES J
Date of judgment:		31 October 2012
Catchwords:		PRACTICE AND PROCEDURE – application to strike out originating application and statement of claim as an abuse of process and for pleading deficiencies – whether claim for defamation statute-barred – whether allegation of misleading or deceptive conduct properly pleaded
Legislation:		Competition and Consumer Act 2010 (Cth) Sch 2 Federal Court Rules 2011 rr 16.02, 16.21, 16.41, 16.43 Limitation Act 1969 (NSW) s 14B
Cases cited:		Australian Competition and Consumer Commission v Jutsen (No 3) (2011) 285 ALR 110 Barton v The Queen (1980) 147 CLR 75 Campaign Master (UK) Ltd v Forty Two International Pty Ltd (No 4) (2010) 269 ALR 76 Clyne v The New South Wales Bar Association (1960) 104 CLR 186 Concrete Constructions (NSW) Pty Limited v Nelson (1990) 169 CLR 594 David v Abdishou [2012] NSWCA 109 Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575 Fasold v Roberts (1997) 70 FCR 489 Giraffe World Australia Pty Limited v Australian Competition and Consumer Commission (1999) ATPR ¶41-669 Houghton v Arms (2006) 225 CLR 553 McKellar v Container Terminal Management Services Ltd (1999) 165 ALR 409 Orion Pet Products Pty Ltd v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 R v Grassby (1988) 15 NSWLR 109 Robin Pty Ltd v Canberra International Airport Pty Ltd (1999) 179 ALR 449 Taylor v Crossman (No 2) (2012) 199 FCR 363 Toben v Jones [2012] FCA 444 Village Building Co Ltd v Canberra International Airport Pty Ltd (2004) 134 FCR 422 Williams v Spautz (1992) 174 CLR 509
Date of hearing:	1 August 2012
Place:	Sydney
Division:	GENERAL DIVISION
Category:	Catchwords
Number of paragraphs:	60
Counsel for the Applicant:	Ms JE Rawlings
Solicitor for the Applicant:	Carters Law Firm
Counsel for the Respondent:	Mr MA Friedgut
Solicitor for the Respondent:	Slater & Gordon

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY
GENERAL DIVISION	SAD 108 of 2012

BETWEEN:	GERALD FREDRICK TOBEN Applicant
AND:	JEREMY SHAUN JONES Respondent

JUDGE:	YATES J
DATE OF ORDER:	31 OCTOBER 2012
WHERE MADE:	SYDNEY

JUDGE:	YATES J
DATE:	31 OCTOBER 2012
PLACE:	SYDNEY