Scully, Olga

JONES v SCULLY [2002] FCA 1080

Federal Court of Australia

Jones v Scully [2002] FCA 1080 (2 September 2002)

Last Updated: 2 September 2002

FEDERAL COURT OF AUSTRALIA

Jones v Scully [2002] FCA 1080

HUMAN RIGHTS - racial discrimination - racial hatred - publication and distribution of leaflets - proceedings to enforce determination of Human Rights and Equal Opportunity Commission - de novo hearing - whether publication and distribution of leaflets was reasonably likely to offend, insult, humiliate or intimidate Jews in Australia - objective test to be applied - relevance of evidence of persons actually being offended, insulted, humiliated or intimidated - relevance of truth or falsity of leaflets - offensive behaviour - whether act done "because of" race, colour or national or ethnic origin - meaning of "ethnic origin" - whether Jews in Australia are a group of people with an "ethnic origin" - whether leaflets were published and distributed reasonably and in good faith - whether leaflets were published and distributed for any genuine purpose in the public interest - whether any leaflets were a "fair and accurate report" - whether any leaflets were "fair comment"

CONSTITUTIONAL LAW - Racial Discrimination Act 1975 (Cth) Part IIA - whether invalid - freedom of communication concerning political or government matters - whether Racial Discrimination Act effectively burdens freedom of communication about government or political matters - whether reasonably appropriate and adapted to serve a legitimate end - legitimate end sought to be achieved

DEFAMATION - applicable principles in determining whether material conveys pleaded imputations - whether imputations would be conveyed to an ordinary reasonable reader of the leaflets - characteristics of ordinary reasonable reader

EVIDENCE - historical evidence - admissibility as to facts in issue - general principles - evidence in books and videos - discretion to limit use of evidence - Evidence Act 1995 (Cth) s 136

WORDS AND PHRASES - "because of" - "offend" - "ethnic origin"

Racial Discrimination Act (1975) (Cth) Part IIA, s 18B, 18C, 18C(1)(a), 18C(1)(b), 18D, 18D(a), 18D(b), 18D(c)(i), 18D(c)(ii)

Trade Practices Act 1974 (Cth) s 52

Racial Hatred Bill 1994 (Cth)

Evidence Act 1995 (Cth) s 136

Crimes Act 1914 (Cth)

Universal Declaration of Human Rights Article 19

Jones v Scully (2001) 113 FCR 343 referred to

Harris v Caladine (1990-1991) 172 CLR 84 considered, applied

Australian Communist Party v Commonwealth (1951) 83 CLR 1 applied

Ritz Hotel v Charles of the Ritz (1987) 14 NSWLR 107 considered

Bellevue Crescent v Marland Holdings (1998) 43 NSWLR 364 considered

Hagan v Trustees of the Toowoomba Sports Ground Trust [2000] FCA 1615 applied

Creek v Cairns Post Pty Ltd [2001] FCA 1007 applied

ACCC v Optell Pty Ltd (1998) ATPR 41-640 considered

Patrick v Cobain [1993] 1 VR 290 applied

Worcester v Smith [1951] VLR 316 considered

Ball v McIntyre (1966) 9 FLR 237 considered

King-Ansell v Police [1979] 2 NZLR 531 applied

Mandla v Dowell Lee [1983] 2 AC 548 referred to

Commission for Racial Equality v Dutton [1989] 1 QB 783 referred to

Miller v Wertheim [2002] FCAFC 156 followed

Hagan v Trustees of the Toowoomba Sports Ground Trust (2001) 105 FCR 56 applied

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 cited

Versace v Monte [2002] FCA 190 cited

Irving v Penguin Books Ltd [2000] EWHC QB 115 applied

Nationwide News Pty Ltd v Wills (1992) 177 CLR 1 referred to

Australian Capital Television Pty Ltd v The Commonwealth (1992) 177 CLR 106 referred to

Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104 referred to

Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 applied

Koowarta v Bjelke-Petersen (1982) 153 CLR 168 considered

Brandy v HREOC (1994-1995) 183 CLR 295 considered

Minister of State for Immigration & Ethnic Affairs v Ah Hin Teoh (1994-1995) 183 CLR 273 cited

Oberoi v HREOC [2001] FMCA 34 cited

Watson, Blackmore, Hosking Criminal Law (NSW) Vol 2

Fleming The Law of Torts 9th Ed. 1998

JEREMY JONES v OLGA SCULLY

N 154 OF 2001

HELY J

2 SEPTEMBER 2002

SYDNEY (HEARD IN LAUNCESTON AND SYDNEY)

...for more go to,

Scully v Jones [2002] FCA 1396 (8 November 2002)

Jones v Scully [2002] FCA 1080 (2 September 2002)

Jones v Scully [2001] FCA 879 (13 July 2001)

updated 03.2003 CAERS' Press

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keywords:

Jones v Scully  Federal Court of Australia  racial discrimination  racial hatred  Human Rights