Jones v Toben [2002] FCA 1150 (Explanatory Memorandum)

FEDERAL COURT OF AUSTRALIA

Jones v Toben [2002] FCA 1150 HUMAN RIGHTS AND DISCRIMINATION LAW – racial discrimination – racial vilification – proceedings to enforce determination of Human Rights and Equal Opportunity Commission – hearing de novo of original complaint – representative claim – necessity for class to be closed – entitlement of applicant alone to institute proceeding - whether Jews in Australia constitute a group of people with common "ethnic origin" – whether non-password protected website caused material to be 'communicated to the public' – meanings of the words offend, insult, humiliate, or intimidate – ordinary meaning –- whether publication of material on website reasonably likely to offend or intimidate Jews in Australia – objective test – real effects - whether "ethnic origin" one factor in the content of material on website RACIAL VILIFICATION – applicable principles in determining whether material reasonably likely to offend, insult, humiliate or intimidate – principles of defamation – objective test - whether imputations would be conveyed to an ordinary reasonable reader PRACTICE AND PROCEDURE – Federal Court Rules – summary judgment – repeated failure of respondent to file a defence – respondent unwilling to cooperate in bringing proceeding to trial RELIEF – injunctions – utility of injunction to restrain Internet publication – whether apology or retraction should be ordered WORDS AND PHRASES – "likely", "offend, insult, humiliate or intimidate", "because of" Racial Discrimination Act 1975 (Cth) ss 18C, 18D, 22, 25L, 25Y, 25Z, 25ZC Human Rights Legislation Amendment Act (No 1) 1999 (Cth) Part 2 ss 4‑22 Acts Interpretation Act 1901 (Cth) s 8(e) Human Rights and Equal Opportunity Commission Act 1986 ss 46PQ, 46PR and 46PT Federal Court RulesO 4 r 3(1)(b), O 10 r 7, O 11 r 23, O 19, O 20 r 1 Executive Council of Australian Jewry v Scully (1998) 79 FCR 537 cited Jones v Scully [2001] FCA 879 cited Fisher v Rural Adjustment & Finance Corporation of Western Australia (1995) 57 FCR 1 referred to Lenijamar Pty Ltd v AGC (Advances) Ltd (1990) 27 FCR 388 cited Citron v Zündel (No. 4) (2002), 41 C.H.R.R. D/274 (C.H.R.T.) referred to Miller v Wertheim [2002] FCAFC 156 cited Jones v Scully [2002] FCA 1080 cited and followed Tilmanns Butcheries Pty Ltd v Australasian Meat Industry Employees' Union (1979) 42 FLR 331 followed Creek v Cairns Post Pty Ltd (2001) 112 FCR 352 cited and followed Vincent v Peacock [1973] 1 NSWLR 466 at 468 referred to The Macquarie Dictionary 2nd ed and The Oxford English Dictionary 2nd ed JEREMY JONES v FREDRICK TOBEN N 327 OF 2001 BRANSON J 17 SEPTEMBER 2002 SYDNEY