Bond v Barry [2007] FCA 1484

Procedural Posture

Trade Practices and Fair Trading Proceeding Alleging Misleading or Deceptive Conduct / Reasons for Judgment on Motion to Dismiss Proceedings Under S 31 a of the Federal Court of Australia Act 1976 (cth)

Legal Issues

1. 1 ['Whether the conduct of a freelance journalist in researching, writing and supplying an article to a newspaper company under contract was protected by the media safe harbour in s 65A of the Trade Practices Act 1974 (Cth) and equivalent Fair Trading Act provisions.' 'Whether the alleged intra-group transmission of the article by the editor of The Sunday Telegraph was protected by the media safe harbour.' 'Whether the supply of an article by a freelance journalist pursuant to a contract was a publication in connection with the supply of goods or services so as to fall outside the media safe harbour.' 'Whether the respondent media companies could be liable as accessories if the primary conduct was exempted.' 'Whether the application had no reasonable prospect of success and should be dismissed under s 31A of the Federal Court of Australia Act 1976 (Cth).']

Ratio Decidendi

Mr Barry's writing and transmission of the article to Mr Breen and the News Group for publication was a prescribed publication by a prescribed information provider within s 65A of the Trade Practices Act 1974 (Cth) and the equivalent Fair Trading Act provisions. The contractual supply of freelance journalistic services did not make the publication one in connection with the supply of goods or services for the purposes of the statutory exclusion. Mr Breen's alleged intra-group emailing was also covered because, on the pleaded case, he was acting as an employee of a prescribed information provider. Because the alleged primary contraventions were exempted, there was no reasonable prospect of...

Court Disposition

Application dismissed with costs.

Orders

• ['The application is dismissed.' "The applicants are to pay the respondents' costs of the application."]