Vol33 No1 March-May 2019

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
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