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 14BCases 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 509Date 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
ApplicantAND: 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
ApplicantAND: 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…
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- AGLC
- Toben v Jones [2012] FCA 1193
- Case
- [2012] FCA 1193
- Decision Date
CaseChat Overview and Summary
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
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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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