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Gutnick v Dow Jones & Co Inc

GUTNICK V DOW JONES & CO INC [2001] VSC 305

Supreme Court of VIC– 28 August 2001

FACTS

An article headed “Unholy Gains” was published in Barrons Magazine and also placed on the Defendant’s website located in New Jersey USA. Dow Jones operated this as a subscriber site and had 1700 subscribers in Australia.

The claim was that the Defendant published words and pictures, including a photo of Mr. Gutnick along with an imputation that the Plaintiff “was masquerading as a reputable citizen when he was a tax evader who had laundered large amounts of money…”

ISSUES

The Court was required to determine jurisdiction on the basis of where the online article was published and forum non convenience (was Victoria clearly an inappropriate forum).

FINDING

The Court found that publication takes place where and when the contents of the publication are seen and heard. On the facts here that was when subscribers in Victoria downloaded the article and the State of Victoria has jurisdiction to entertain the proceedings.

The Court considered a number of factors including where the article was published, the plaintiff’s residence and business, seeking to vindicate his Victorian reputation and an undertaking not to sue in no other place in concluding that Victoria is both the appropriate and convenient forum.

QUOTE

Hedigan J

“…the critical issue is where and by whom it was published for the purposes of the law of deformation…publication takes place where and when the contents of the publication, oral or spoken, are seen and heard…and comprehended by the reader or hearer.”

IMPACT

Placing of articles on a website may amount to publication in the state where a subscriber views the article, under the law of defamation.

Further, anyone running a web site should be very careful in relation to defamation, particularly if users of the site can lodge materials published by owners of the web site.

Abacus Australia v Bradstock GIS

ABACUS AUSTRALIA LTD V BRADSTOCK G I S PTY LTD [2000] VSC 111

Supreme Court of VIC – 24 March 2000

FACTS

On 24 March 1998, the Court ordered by interim injunction that Bradstock be restrained from using confidential information it had received from Abacus. The Court also ordered that Bradstock provide discovery of documents relating to insurance polices received or created by Bradstock.

Abacus did not receive discovery as ordered by the Court but served its Statement of Claim on 4 November 1998 and on 13 May 1999 it served a Notice for Discovery on Bradstock. Bradstock still failed to provide discovery and on 6 July 1999, Abacus served a Notice of Default on Bradstock. As Bradstock did not make discovery, Abacus made an application to the Court and on 16 July 1999 the Court ordered that the parties by 26 July 1999 serve timetables for further interlocutory steps in the proceeding.

On 29 July 1999, the Court was told that Bradstock had still not made discovery and made orders that Bradstock provide discovery by 26 August 1999, failing which its defence would be struck out. Bradstock failed to make discovery and on 9 November 1999 the Court ordered judgment for Abacus in the terms of the orders made on 24 March 1998.

On 10 March 2000, Bradstock applied to have the judgment dated 9 November 1999 set aside.

ISSUES

Should the Court exercise its power and set aside the judgment against Bradstock?

FINDING

Bradstock had failed to explain why it had not provided discovery or why it had taken so long to apply to have the judgment set aside.

In any event the case against Bradstock had been shown to be very strong at the interlocutory application for the interim injunction and there was no good reason for the judgment to be set aside.

QUOTE

Beach J said:

“The defendant [Bradstock] has still not complied with the order of the Master Bruce made on 29 July 1999, nor has it provided to the court any explanation for its failure in that regard. … The defendant has not provided to the court any explanation for its failure to make application to the court to set the judgment aside prior to today. The judgment was entered on 9 November [1999] and here we are, close to five months down the track, before the defendant makes its present application.”

IMPACT

While the Court will usually allow a party which fails to comply with interlocutory orders an opportunity to remedy their default.

However if the party consistently fails to comply with orders without good reason then the Court may strike out their claim or defence.

This publication is intended to be a topical report on recent cases in the construction, development and engineering industries. This publication is not intended to be a substitute for professional advice, and no liability is accepted. This publication may be reproduced with full acknowledgement.

Jim Doyle

Tel.: 1800 888 783

jdoyle@doylesconstructionlawyers.com
www.doylesconstructionlawyers.com