Recent developments in
Australian defamation law
By David Rolph
Defamation law in
Australia is thriving, if the volume of case law being generated by courts is
any indication. In 2018, there were 191 judgments in defamation matters handed
down by Australian courts. This was an increase from 159 judgments in 2017. It
is fair to say that a lot happened in defamation law in Australia in 2018. It
is not possible to cover every development. This article seeks to highlight the
important and interesting legal developments that occurred in Australian
defamation law last year.
‘The anomalous and
hybrid creature’: recurring caveat themes
By Lee Aitken
Caveat litigation is
always with us. This is because, as Justice Bryson said in 2005, ‘in effect a
caveat operates as an interlocutory injunction which the caveator grants to
himself. In fact, it has more powerful operation than an injunction, because it
even prevents a transfer of title by registration by a registered proprietor
who is prepared to disobey an injuction’. What is not to like about that?
With respect to such
litigation, a number of themes recur. Frequently, a question will arise whether
the right to lodge a caveat is itself sufficient to resist the effort to remove
it. Secondly, it will be doubtful whether or not a lender has obtained
security, by way of charge or otherwise, over land — either the parties do not
address the question directly through mutual contractual delicacy, or there is
some inartificial reference to a caveat in the documents. Thirdly, a party
might lodge a captious caveat, designed merely to stymie the registered
proprietor. Fourthly, highly technical questions might arise whether the
interest in land asserted, be it equitable or legal, is sufficient to support a
caveat at all. Finally, questions will occur as to recovering damages if a
caveat be improperly lodged. Recent cases now discussed exemplify, but do not
resolve, these problems.
Australian Competition
and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152
By Amy Campbell
In 2014 the ACCC
commenced proceedings against the Australian Egg Corporation, its managing
director, two egg companies and two of their directors for attempting to induce
egg producers in Australia to limit the production for supply of eggs by making
a contract, arrangement or arriving at an understanding which contained a
cartel provision. The ACCC’s case was dismissed at trial and again on appeal in
the Full Federal Court.
This note considers
the Full Federal Court’s decision to dismiss the ACCC’s appeal against ACCC v
Australian Egg Corporation Ltd [2016] FCA 69 on grounds that the ACCC did not
sufficiently persuade the court that the respondents attempted to induce egg
producers to arrive at an understanding under section 44ZZRJ of the Competition
and Consumer Act 2010 (Cth).
The NSW Court of
Appeal’s latest word on damages claims for loss of opportunity
by Judge Alister
Abadee
In Mal Owen
Consulting Pty Ltd v Ashcroft [2018] NSWCA 135, the New South Wales Court of
Appeal considered a client’s claim for damages against a solicitor for the
negligent prosecution of a proceeding. Eventually, the client commenced a
separate proceeding with a different solicitor, but at about the stage of
enforcement of the judgment (which withstood an appeal) the judgment debtor was
bankrupt. The client sued the solicitor of the original proceeding claiming it
had suffered loss of the opportunity to obtain a better outcome, being either a
judgment or settlement at an earlier point of time whose monetary amount could
have been enforced or obtained.
The Court was divided
as to the proper approach to determining such claims in principle and, by
majority, overturned the primary judge’s factual findings on the assessment of
damages. Such division on points of principle will make it difficult for legal
advisers and trial judges alike to adjudicate such claims. On the pivotal issue
of assessment of damages, one Judge of Appeal (Macfarlan JA) upheld the trial
judge’s view that there was no assessable loss, but the majority (Basten JA and
Barrett AJA, in separate but concurring judgments) determined otherwise. This
illustrates the complexity of the quantification issue at a factual level as well.
Recent developments in Australian defamation law
By David Rolph
page
3
‘The anomalous and hybrid creature’: recurring caveat themes
By Lee Aitken
page
9
Australian Competition and Consumer Commission v Australian Egg Corporation Limited [2017] FCAFC 152
By Amy Campbell
page
17
The NSW Court of Appeal’s latest word on damages claims for loss of opportunity
By Judge Alister Abadee
page
22