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[2026] FCA 19
General information, not legal advice.
Federal Court of Australia
2026-02-10
Longbottom J
Original judgment source is linked above.
I certify that the preceding forty-four (44) numbered paragraphs are a true copy of the Reasons for Judgment of the Honourable Justice Longbottom.
Weir
Telstra Limited
Aristocrat Technologies Australia Pty Limited v Light & Wonder, Inc. (No 3) [2025] FCA 775
Australian Competition and Consumer Commission v Valve Corporation (No 3) [2016] FCA 196
Australian Energy Regulator v Snowy Hydro Limited [2014] FCA 1013
Comcare v John Holland Rail Pty Ltd [2010] FCA 981; (2010) 189 FCR 173
Dinnison v Commonwealth of Australia [2000] FCA 1841; (2000) 106 FCR 418
Graham's Factree Pty Ltd v Oak Enterprises (No 1) [2012] FCA 1033
Hughes trading as Beesley and Hughes Lawyers v Hill [2020] FCAFC 126; (2020) 277 FCR 511
Lehrmann v Network Ten Pty Ltd (Tribunal of Fact) [2023] FCA 612
Miles v Commissioner of Patents [2013] FCA 1017
Ra v Nationwide News Pty Ltd [2009] FCA 1308; (2009) 182 FCR 148
Reading Australia Pty Ltd v Australian Mutual Provident Society [1999] FCA 718; (1999) 217 ALR 495
Richardson v Oracle Corporation Australia Pty Ltd [2014] FCAFC 82; (2014) 223 FCR 334
Shape Shopfitters Pty Ltd v Shape Australia Pty Ltd [2016] FCA 610
Verrocchi v Direct Chemist Outlet Pty Ltd [2015] FCA 234; (2015) 228 FCR 189
Wing v Fairfax Media Publications Pty Ltd [2017] FCAFC 191; (2017) 255 FCR 61
... the principal issues at the trial are likely to be meaning, reasonableness under s 30(3) of the Defamation Act, malice and probably damages. Meaning and some aspects of reasonableness will require the tribunal of fact to interpret the article containing the matter complained of through the eyes of the ordinary reasonable reader and at least some aspects of the plea of reasonableness will call for the application of a normative standard. Judges of this Court carry out both of those exercises on a regular basis. For example, as to the former, in the field of misleading or deceptive conduct and passing off, the Court may be required to interpret statements from the perspective of the members of the class to whom they are directed (Campomar Sociedad, Limitada and Another v Nike International Limited and Another [2000] HCA 12; (2000) 202 CLR 45 at [103]- [106]). As to the latter, the Court is not infrequently assessing conduct by reference to the standards of the community or a section of the community such as the commercial community (Paciocco v Australia and New Zealand Banking Group Limited [2015] FCAFC 50; ; ; ) ...
(a) the term "question" in O 29, r 1 includes any question or issue of fact or law in a proceeding. The distinction in the rule between an "issue" and a "question" is the distinction between that which, when resolved, will result in an adjudication in favour of one party or the other, being an "issue", and less decisive matters of dispute being "questions" (Landsal Pty Ltd (in liq) v REI Building Society (1993) 41 FCR 421 at 425);
(b) a question can be the subject of an order for a separate decision under O 29, r 2 even though a decision on such a question will not determine any of the parties' rights (Landsal Pty Ltd (in liq) v REI Building Society at 425);
(c) however, the judicial determination of a question under O 29, r 2 must involve a conclusive or final decision based on concrete and established or agreed facts for the purpose of quelling a controversy between the parties (Bass v Permanent Trustee Company Ltd [1999] HCA 9; (1999) 198 CLR 334 at [45]);
(d) where the preliminary question is one of mixed fact and law, it is necessary that the question can be precisely formulated and that all of the facts that are on any fairly arguable view relevant to the determination of the question are ascertainable either as facts assumed to be correct for the purposes of the preliminary determination, or as agreed facts or as facts to be judicially determined (Jacobson v Ross [1995] VicRp 24; [1995] 1 VR 337 at 341, referring to Attorney-General (UK) v Nissan [1969] UKHL 3; [1970] AC 179 at 242-243 per Lord Pearson; Bass v Permanent Trustee at [53]);
(e) care must be taken in utilising the procedure provided for in O 29, r 1 to avoid the determination of issues not "ripe" for separate and preliminary determination. An issue may not be "ripe" for separate and preliminary determination in this sense where it is simply one of two or more alternative ways in which an applicant frames its case and determination of the issue would leave significant other issues unresolved ( at 606 per Kirby P);
(2000) 106 FCR 418
(2009) 182 FCR 148
(1999) 217 ALR 495
(2015) 228 FCR 189
(2017) 255 FCR 61
(2015) 321 ALR 584
(2020) 277 FCR 511
(2010) 189 FCR 173
(2014) 223 FCR 334
(2000) 202 CLR 45
(2016) 341 ALR 572
(1993) 41 FCR 421
(1999) 198 CLR 334
(1985) 1 NSWLR 601
(Emphasis added)
(f) factors which tend to support the making of an order under O 29, r 2 include that the separate determination of the question may -
(i) contribute to the saving of time and cost by substantially narrowing the issues for trial, or even lead to disposal of the action; or
(ii) contribute to the settlement of the litigation (CBS Productions Pty Ltd v O'Neill at 607 per Kirby P);
(g) factors which tell against the making of an order under O 29, r 2 include that the separate determination of the question may -
(i) give rise to significant contested factual issues both at the time of the hearing of the preliminary question and at the time of trial (GMB Research & Development Pty Ltd v Commonwealth [1997] FCA 934;
(ii) result in significant overlap between the evidence adduced on the hearing of the separate question and at trial - possibly involving the calling of the same witnesses at both stages of the hearing of the proceeding (GMB Research & Development Pty Ltd v Commonwealth; Arnold v Attorney-General (Vic) [1995] FCA 727). This factor will be of particular significance if the Court may be required to form a view as to the credibility of witnesses who may give evidence at both stages of the hearing of the proceeding; or
(iii) prolong rather than shorten the litigation (GMB Research & Development Pty Ltd v Commonwealth).