IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

On Appeal from a single Judge of the Federal Court of Australia

No N1049    of 2002

B E T W E E N

FREDRICK TOBEN

Appellant

-and-

JEREMY JONES

Respondent

NOTICE OF APPEAL

 

1                     The appellant appeals from the whole of the Judgment of the Honourable Justice Branson given on 17 September 2002 at Sydney, New South Wales.

2                      

GROUNDS

 

The learned judge erred in law:

 

3                     In deciding as a matter of discretion to exercise jurisdiction pursuant to either Order 10, rule 7 or Order 11, rule 23 to entertain the application for summary judgment;

 

4                     In failing to consider and determine the issue of the constitutional validity of the Racial Discrimination Act 1975 which issue the Appellant had in a Notice of Motion filed on or about 2 April 2002 sought to raise by way of answer to the application for summary judgment;

 

 

5                     In giving summary judgment for the Applicant;

 

6                     In deciding that the Applicant was a person aggrieved by the act the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission;

 

 

7                     In deciding that section 144 of the Evidence Act 1995 absolved the Applicant from proof of part of the circumstances said to be embodied in the act the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission;

 

8                     In deciding that the placing of text and graphic material on a website on the World Wide Web amounted, in the absence of proof that the material was capable of being located by a Web browser facility, to an act taken not to be done in private within the meaning of s 18C of the Racial Discrimination Act 1975;

 

 

9                     In deciding for the purposes of the possible application of s 24 of the Racial Discrimination Act 1975 that, properly interpreted, the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission was to be understood as a complaint material that was found on the website referred to in the letter of complaint on or shortly before the complaint;

 

10                  Having found that the appellant had published material, in then deciding:

 

 

(a)     that the publication of the material was an act within the meaning of s 18C(1)(a) of the Racial Discrimination Act 1975;

(b)      

                        that the publication was done because of the ethnic origin of some other person or of some or all of the people in a group within the meaning of s 18C(1)(b) of the Racial Discrimination Act 1975;

 

11                  In deciding that s 18C(1)(a) of the Racial Discrimination Act 1975 set up an objective test or standard;

 

12                  In deciding that, in the absence of any direct evidence that any person was offended, insulted, humiliated or intimidated by the material that was the subject of the letter of complaint dated 28 May 1996 to the Human Rights and Equal Opportunity Commission, the publication of such material was capable of contravening s 18C(1) of the Racial Discrimination Act 1975;

 

 

13                  In deciding that, properly interpreted, the term “likely” in s 18C(1)(a) of the Racial Discrimination Act 1975 meant more probable than not;

 

14                  In deciding that the proper interpretation of s 18C(1)(a) of the Racial Discrimination Act 1975 called for the application of the legal principles or standards applicable to the ascertainment of defamatory meaning;

 

 

15                  In deciding that, properly interpreted, the prohibition contained in s 18C(1) of the Racial Discrimination Act 1975 extended to the expression of ideas or opinions that might be considered to:

 

(a)     engender in a person a feeling that the expression of the ideas or opinions challenged or denigrated a central aspect of that person’s ethnic heritage or history, or

 

(b)    engender in a person a sense of being treated contemptuously, disrespectfully and offensively, or

 

 

(c)     cause damage to the pride and self-respect of vulnerable or impressionable members of an ethnic group to whom the person belongs;

 

16                  In deciding that none of the material before the Court established that the Appellant had relevantly acted in good faith within the meaning of s 18D of the Racial Discrimination Act 1975;

 

17                  Having decided that the Appellant had engaged in conduct that was unlawful under the Racial Discrimination Act 1975 in then deciding that this was an appropriate case in which to make the orders appealed against; 

 

18                   

ORDERS SOUGHT

 

In place of the judgment from which the appeal is brought, the Appellant seeks orders that:

1                     This appeal be allowed;

 

2                     The decision below be set aside and in lieu thereof there be orders –

 

 

A             That the application for enforcement of determinations of the Human Rights and Equal Opportunity Commission be dismissed;

 

B              The Respondent pay the costs of the application below;

 

3                     That the Respondent pay the Appellant’s costs of this appeal;

 

4                     Such further or other orders or relief as the Court considers appropriate.

 

 

TAKE NOTICE

(a)                 Before taking any step in the proceeding you must enter an appearance in the Registry, unless you have already entered an appearance pursuant to Order 52, rule 7.

 

(b)                 The papers in the appeal will be settled before the Registrar at

 

 

(c)                  _______________________________ on __________________________

 

The appellant’s address for service is ___________________________________

 

 DATED: 2 October 2002

_____________________________

Appellant