Facebook abuse injury claim seeks novel “carriage service” damages

A retired NSW solicitor who chose to commence proceedings in the Federal Court for injury compensation over vile and abusive Facebook messages has paved the way for an additional legal remedy to deploy against the scourge of cyberbullying.

Robert Mulley received the first abusive message from Warren Hayes in January 2020.  The second message a month later – to his wife – labelled him a “paedophile” and his wife a “slut”.

Both messages threatened violence to the recipients.

Mulley issued proceedings seeking damages for loss of consortium and for psychological injuries caused by the violent and offensive content the sending of which was unlawful by operation s 474.17 of the Criminal Code Act (Cth) which prohibits use of a “carriage service” to menace, harass or cause offence.

He also claimed damages for the defamatory imputations in the second message received by his wife.

It was not in dispute that Facebook Messenger is a “carriage service” because it carries “communications by means of guided and/or unguided electromagnetic energy”.

The claim came before Justice Michael Lee who noted that it was not at first glance one whose subject matter of itself brought it within the court’s jurisdiction.

His Honour noted however – in relation to the carriage service claim – that the question remained open as to whether “the law of Australia recognises tortious liability for harm caused by unlawful acts directed against an applicant”.

He concluded Mulley’s claim – although “novel” – was arguable as “a common law action on the case”.

In a hearing on the separate issue of “whether the jurisdiction of the court had been properly invoked” he considered whether such a common law claim in reliance on a federal statute meant the Federal Court had “subject-matter jurisdiction to quell the dispute”.

That answer depended in turn on whether “the rights, duties, or subject matter with which the controversy is concerned have their origin in or owe their existence to a law of the Commonwealth”.

Those questions were – in relation to the carriage service claim – both answered in the affirmative.

And even if that claim were to fail, there was “sufficient commonality” concerning the underlying facts and allegations in relation to the defamation action, to allow it to proceed in the Federal Court regardless.

On the other hand, the court would have had no jurisdiction to deal with a pure defamation claim, ie one that was unaccompanied by the separate claim relying on the breach of the federal carriage service law.

A final determination on the matter is likely to occur in early 2022.

Mulley v Hayes [2021] FCA 1111 Lee J, 13 September 2021

In further developments in the law of defamation, the High Court found media organisations who posted content relating to news stories on their public Facebook pages, they were liable for the publication of defamatory “comments” posted by third-party Facebook users in response to the content.

By a 5:2 majority, the court held that – by facilitating and encouraging the third-party comment – the media organisations “participated” in the communication of the defamatory material and were thereby publishers of it.

Fairfax Media Publications Pty Ltd V Dylan Voller; Nationwide News Pty Limited V Dylan Voller; Australian News Channel Pty Ltd V Dylan Voller [2021] HCA 27 Kiefel CJ, Gageler, Keane, Gordon, Edelman, Steward, Gleeson JJ, 8 September 2021

source https://cartercapner.com.au/blog/facebook-abuse-injury-claim-seeks-novel-carriage-service-damages/

Jurisdiction error proved fatal for father’s aircraft crash nervous shock claim

The father of an 11-yr-old girl killed when her light aircraft crashed minutes after take-off from an idyllic Hawkesbury River waterway, has lost what is likely to have been his last chance to win damages over the psychological injury sustained in coping with the aftermath of the calamity.

Heather Page – together with her mother, stepfather, two stepbrothers and the pilot – died when the six-seater de Havilland Beaver floatplane met disaster on New Year’s Eve in 2017 on return to the Sydney Seaplanes base in Rose Bay.

The Australian Transportation Safety Bureau ultimately concluded that the pilot had been overcome by carbon monoxide from exhaust gas entering the cabin through holes in the main firewall where bolts were missing and in gaps around other bolts that were worn or were “non-specific”.

Ingestion of the fumes during the 27-minute taxi to the pickup location at Cottage Point left the pilot vulnerable to the onset of confusion, visual disturbances and disorientation when the engine and exhaust gases were at maximum output during and after take-off.

Alex Page filed his claim for compensation for “nervous shock” against Sydney Seaplanes as carrier in the Federal Court pursuant to – and prior to the two-year deadline specified in – the Civil Aviation (Carrier’s Liability) Act (Cth).

That was the fundamental legal error from which – despite valiant attempts – he was unable to recover, dooming any chance of a successful compensation outcome.

Regrettably, that Act had no application as it applies only to interstate and overseas commercial passenger transport.

The error was not one that could be rectified by simply amending the claim to refer to the NSW Act applying identical liability provisions to intra-state commercial air operations.

Page’s claim was thus struck out by Justice John Griffiths in April 2020 who ruled that no amount of amendment could remediate the plaintiff’s position because the Federal Court had no jurisdiction to determine a matter devoid of any element of federal legislation or intercourse between states.

Because the two-year limitation period had already expired, it was too late to file fresh proceedings.

Page’s lawyers devised a “work around” by applying to the NSW Supreme Court to have the Federal Court matter transferred across contending that the Federal Courts (State Jurisdiction) Act (NSW) applied to the FCA order striking out Mr Page’s “state matter” claim for “want of jurisdiction”.

Justice Christine Adamson agreed and made an order that the FCA proceeding be treated as a Supreme Court matter that had commenced on the day it was filed in the Federal Court, ie within the two year deadline.

Sydney Seaplanes or rather its insurers, appealed.

Overruling the literal interpretation applied by the primary judge, the appeal judges came to the “unavoidable conclusion”, the State Jurisdiction Act was intended only to apply to matters in which “want of jurisdiction” arose from a “constitutionally invalid conferral of jurisdiction” on the FCA.

It was after all, an urgent stop gap measure implemented by every state to remediate the effect of a High Court ruling that invalidated their respective Jurisdiction of Courts (Cross-vesting) Acts.

It was never intended – noted Justice Mark Leeming – to be a “safety net for litigants who misguidedly take the serious step of commencing proceedings in the Federal Court without first considering the issue of jurisdiction”.

So while the literal meaning of the State Jurisdiction Act allowed Mr Page’s claim to be revived in the Supreme Court, that meaning was rejected because it was inconsistent with its statutory purpose.

“The literal meaning of words in a statute will not always, correspond to their legal meaning,” observed the Appeal Court President, Justice Andrew Bell.

Barring a further appeal to the High Court of Australia, that is the end of the road for Mr Page’s claim against the carrier.

Sydney Seaplanes Pty Ltd v Page [2021] NSWCA 204 Bell P Leeming JA Emmett AJA, 7 September 2021 Read case

source https://cartercapner.com.au/blog/jurisdiction-error-proved-fatal-for-fathers-aircraft-crash-nervous-shock-claim/

Senior employee wins psych damages claim for reasonable management action taken unreasonably

An employee of a regional council centered on Moranbah in the Bowen Basin has won a ruling that the management action that caused an adjustment disorder as a result of a disciplinary proceeding that was reasonable management action taken unreasonably.

Trevor Maher joined the Isaac Regional Council as a Regulatory Services Program Leader in March 2016.

In May 2018 and number of concerns arose in relation to his conduct.

A meeting to discuss the suspension was convened by two management representatives “very close to knock off time” without any notice to Maher of its purpose and without affording him any opportunity to prepare any response to the allegations. Neither was he given, the opportunity to bring in a support person until – on the council’s version of events – the meeting was underway and before its purpose was revealed.

Regardless, he was suspended on pay while an “external investigation” was carried out.

Some of the allegations were – in a draft report from the Council’s consultants, Livingstones – found to have been substantiated, as a result of which he was issued a Show Cause Notice in August 2018 concerning breaches of the Council’s Code of Conduct.

His employment was terminated as a result of the findings in May 2019.

He is recorded as suffering “an adjustment disorder with anxiety and depressed mood” as from 29 August 2018 but his application for workers’ compensation was denied by Local Government WorkCover on the grounds that any such injury resulted from “reasonable management action”.

Maher’s referral of the matter to the Regulator in August 2019 resulted in the original decision being confirmed.

He appealed that decision to the Queensland Industrial Relations Commission, contending that the absence of prior notice of the purpose of the “suspension” meeting and the giving of opportunity to call a support person into the meeting, was unreasonable.

The matter came before Commissioner McLennan before whom Maher also alleged it had been unreasonable for the Council’s Show Cause Notice not to fully particularise all allegations in the grounds on which they were made; and to have issued that Notice prior to its receipt of the final version of the external investigation report.

The Council denied these allegations and contended that if there were any instances of procedural unfairness, they amounted to a mere “blemish”.

It also assert that although Maher was summoned to his manager’s office at 4:40 PM “cold”, he must have “sniffed the wind”.

In the Commissioner’s view “it should not have been left to Mr Maher to assume what the meeting was about… rather, the onus is on the Council to tell him in advance”.

Further “the failure to offer Mr Maher the opportunity for a support person prior to the suspension interview was unreasonable”.

In relation to the Show Cause Notice, the court found that there was insufficient particularisation within the notice itself in breach of the particular disciplinary provisions of the Local Government Regulations.

Further, the Council should have required the external investigated to prioritise the delivery of the final investigation report including all attachments to enable its prompt deliberation on the matters “in their entirety”.

Having regard to the breaches concerning the Show Cause Notice and the suspension meeting, the court was compelled to conclude that the action taken in relation to Mr Maher, however reasonable, was not taken on a reasonable manner.

As a result the Council was not afforded the defence under s 32 (5) of the Workers Compensation and Rehabilitation Act in relation to “reasonable management action”.

Several of Mr Maher’s other submissions were rejected by the court. Maher will now be entitled to receive statutory time off work compensation, a lump sum payment and/or common law damages for the injury sustained.

Maher v Workers’ Compensation Regulator [2021] QIRC 313 McClennan IC, 10 September 2021

source https://cartercapner.com.au/blog/senior-employee-wins-psych-damages-claim-for-reasonable-management-action-taken-unreasonably/

Oz courts to aid overseas Ruby Princess pax: class action waiver clause “unfair”

The Ruby Princess departed Sydney on 8 March 2020 for New Zealand and returned on 19 March becoming the catalyst for the worst COVID-19 outbreak in the first phase of the pandemic.

Carnival – the giant US cruise boat operator of Princess, Carnival and P&O cruises – was exonerated by the NSW Commission of Enquiry notwithstanding the ship’s crew were aware of the outbreak before they docked let loose more than 2600 infected passengers into the community.

A class action against Carnival by passengers alleges it even knew of the likelihood of a Covid outbreak before setting off for New Zealand and that that the cruise should have been cancelled for that reason. The claims are in negligence, contract and for breaches of statutory warranties under the Australian Consumer Law.

Nearly 700 of their number purchased their cruise in the US on terms specified in their ticket that a lawsuit can only be filed against Carnival in California and that those passengers must not join any class action.

Carnival petitioned the Federal Court in Sydney to stay the claims of all US passengers in the class action so they could be heard in the US with US law could be applied.

At the outset Justice Angus Stewart decided in relation to Patrick Ho – the court appointed representative of all US pax – that the exclusive jurisdiction and class action waiver clauses were not incorporated into his cruise contract because they were contained in a document issued by the cruise line after the contract of carriage had in fact already been formed.

His Honour noted that each passenger’s circumstances would have to be separately examined to determine whether the same conclusion could be drawn in their cases.

He went on to make other findings in case he had erred on the incorporation of contract terms point.

He was not prepared to hold that the exclusive US jurisdiction clause was of itself an unfair term under the Australian Consumer Law but had no hesitation in concluding that the class-action waiver Carnival wanted to enforce was invalid for that very reason.

Justice Stewart went on to decide that in those circumstances it was preferable to have the US passenger claims heard in Australia specifically because they would have the advantage of class-action representation here that would be denied to them by a California court.

It was undesirable in his view that litigation dealing with “essentially identical claims” be “fractured” by being heard in two different countries with potentially different outcomes being reached.

Carnival also argued that Sydney was a “clearly an appropriate forum”. Not so, said the judge because the claims “have a substantial connection with NSW” with breaches, conduct and omissions having occurred in Sydney.

Further, because the Australian Consumer Law applied in many respects to the claims, it was very appropriate that the proceedings – even for overseas passengers – be conducted here.

The plaintiffs had argued that the court was prevented from staying  the ACL proceedings because s 138 of  the Competition and Consumer Act 2010 confers jurisdiction on the FCA in respect of all ACL matters. His Honour did not however accept the “implied prohibition” contended for.

The court reserved the issue of the law that applied to the negligence claims with Carnival asserting that they had to be determined under US maritime law.

This decision is a big win not just for for Ruby Princess passengers but for all Australian consumers as it demonstrates the effectiveness of our consumer protection law and how anti-consumer contract terms favoured by international conglomerates like Carnival will not be allowed to flourish here like they have been allowed to do in the USA.

Karpik v Carnival plc (The Ruby Princess) (Stay Application) [2021] FCA 1082 Stewart J, 10 September 2021

source https://cartercapner.com.au/blog/oz-courts-to-aid-overseas-ruby-princess-pax-class-action-waiver-clause-unfair/