Bond v Barry

REASONS FOR JUDGMENT ON MOTION TO DISMISS PROCEEDINGS Introduction 1 In June 2007 an article appeared in The Sunday Telegraph newspaper in New South Wales and in The Sunday Times newspaper in Western Australia which concerned Mr Alan Bond and a diamond mining company, Lesotho Diamond Corporation Plc (Lesotho Diamond) which operates in the Kingdom of Lesotho in South Africa. The article reported on the relationship between Mr Bond and the company, its shareholders, executive and two chairmen of its board and his conduct as its consultant. The article was written by a freelance journalist, Paul Barry. It was published by Nationwide News Pty Ltd (Nationwide News). It also appeared on a website "News.Com" operated by News Digital Media Pty Ltd (News Digital). The companies are members of the News Group of companies which includes News Limited. 2 Mr Bond and Lesotho Diamond have commenced proceedings against Mr Barry, the companies and the editor of The Sunday Telegraph, Mr Breen. They say Mr Barry has contravened provisions of the Fair Trading Acts 1987 of Western Australia and New South Wales and of the Trade Practices Act 1974 (Cth) (the TPA) which prohibits misleading or deceptive conduct. They say Mr Breen has also contravened s 52 of the TPA. They sue the companies as accessories in those contraventions. 3 Mr Barry, Mr Breen and the News Group companies say that, regardless of the merits of the complaints about Mr Barry's article, these proceedings cannot succeed. They say that they are exempted from the application of the relevant provisions of the TPAand the Fair Trading Acts by a specific section in each which creates a media safe harbour. They move to dismiss the proceedings under s 31A of the Federal Court of Australia Act 1976 (Cth) on the basis that there is no reasonable prospect of success. I agree that the proceedings have no reasonable prospect of success and should be dismissed with costs for the reasons that follow. The amended statement of claim 4 The factual narrative that follows is derived from the amended statement of claim. The identity of the parties, the nature of their respective businesses and the arrangements with Mr Barry that led to the publication of the article in contention in this case are, for the most part, not in dispute. 5 Lesotho Diamond is incorporated under the laws of Gibraltar. It holds mining leases in Kao in the Kingdom of Lesotho in South Africa. It is the developer of a prospective diamond mine in the area covered by the licences. Alan Bond is a consultant to the company. 6 Paul Barry carries on business as a freelance journalist in Australia and other places. Between the middle of May 2007 and 1 June 2007 Mr Barry researched and wrote an article about Mr Bond and Lesotho Diamond. He did so under an oral agreement with the editor of The Sunday Telegraph, Mr Neil Breen. By that agreement, according to the defence which has been verified on affidavit, he was paid $15,000 and his travel expenses to England and South Africa. Mr Barry sent the text of the article by emails to Mr Breen. 7 The Sunday Telegraph is a weekly newspaper published by Nationwide News. That company publishes a number of newspapers nationally and in different States of Australia. It publishes The Sunday Telegraph in New South Wales and the weekly newspaper known as "The Sunday Times" in Western Australia. It also publishes the daily newspaper known as "The Daily Telegraph" in New South Wales. 8 After receiving the emails from Mr Barry, Mr Breen is alleged to have sent the substance of the article to the editors of other newspapers published by Nationwide News. In any event the article was published by: