Burrows v Fairfax Media Publications Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Burrows v Fairfax Media Publications Pty Ltd [2021] FCA 404

File number: NSD 585 of 2020
Judgment of: MCKERRACHER J
Date of judgment: 21 April 2021
Catchwords: DEFAMATION – amendment of pleadings – addition of a claim comprising publication on Twitter of a link to a publication already pleaded – addition of a claim comprising the re-publication of a publication already pleaded with the addition of an editor’s note – addition of claims under the Australian Consumer Law – whether the amendments arise from substantially the same facts
Legislation:

Competition and Consumer Act 2010 (Cth) Sch 2: ss 4, 18, 18(1), 19, 19(1)(a)

Federal Court Act 1976 (Cth) ss 37M, 53A

Federal Court Rules 2011 (Cth) rr 8.21(1)(g)(i), 8.21(2), 16.54, 16.51(4)

Limitation Act 1969 (NSW) s 14B

Cases cited:

Re Australian Ocean Line Pty Ltd v West Australian Newspapers Limited and William Ross Harvey [1985] FCA 37; 58 ALR 549

Dow Jones and Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376; [2012] FCA 1307

Kostov v Zhang [2017] NSWDC 7

Tamaya Resources Ltd (in liq) v Deloitte Touche Tohmatsu [2015] FCA 1098

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 43
Date of last submissions: 2 March 2021 (Applicant)
8 March 2021 (Respondents)
Date of hearing: Determined on the papers
Solicitor for the Applicant: Ms Z Burrows
Solicitor for the Respondents: Ms L Norman of Banki Haddock Fiora

ORDERS

NSD 585 of 2020
BETWEEN:

ZALI BURROWS

Applicant
AND:

FAIRFAX MEDIA PUBLICATIONS PTY LTD (ACN 003 357 720)

First Respondent

KATE MCCLYMONT

Third Respondent

LUCY CORMACK

Fourth Respondent

ORDER MADE BY:

MCKERRACHER J

DATE OF ORDER:

21 APRIL 2021

THE COURT ORDERS THAT:

Leave to amend

1.Leave be granted to the Applicant to amend the amended originating application filed on 7 July 2020 in accordance with the draft further amended originating application annexed to her submissions filed on 2 March 2021.

2.Leave be granted to the Applicant to amend the amended statement of claim filed on 3 July 2020 in accordance with the draft further amended statement of claim annexed to her submissions filed on 2 March 2021 except for the following paragraphs which concern claims under the Australian Consumer Law and further particulars of aggravated damages:

(a)Paragraphs 11 and 12 under the heading ‘First Matter complained of’;

(b)Paragraphs 25(d) and 25(e) under the heading ‘Third Matter complained of’;

(c)Paragraphs 32 and 33 under the heading ‘Fourth Matter complained of’;

(d)Paragraphs 41 and 42 under the heading ‘Fifth Matter complained of’;

(e)Paragraphs 50 and 51 under the heading ‘Sixth Matter complained of’;

(f)Paragraphs 61 and 62 under the heading ‘Particulars of Aggravated Damages’.

Filing of pleadings

3.The orders made on 18 March 2021 are vacated.

4.By 28 April 2021, the Applicant is to file and serve a further amended originating application and a…

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Details
Case
[2021] FCA 404
Decision Date

CaseChat Overview and Summary

In the case of Burrows v Fairfax Media Publications Pty Ltd, the plaintiff sought to amend her originating application and statement of claim in a defamation case to include additional claims and particulars. The defendant opposed the amendments, arguing that they did not arise from substantially the same facts as the original pleadings and that some of the proposed amendments were misconceived. The court considered the legal issues of whether the amendments arose from substantially the same facts and whether they were permissible under the rules of court. The court held that the plaintiff could amend her pleadings to include additional claims relating to tweets and links to publications already pleaded, but could not add claims under the Australian Consumer Law or further particulars of aggravated damages. The court also referred the matter to mediation or a similar form of intervention to prevent the case from becoming bogged down in procedural issues. The court made orders granting leave to the plaintiff to amend her pleadings, except for the proposed amendments concerning claims under the Australian Consumer Law and aggravated damages, and ordered that the matter be referred to mediation or a similar process. The court reserved the question of costs arising from the application.

Orders

Orders of the court

Leave to amend

1. Leave be granted to the Applicant to amend the amended originating application filed on 7 July 2020 in accordance with the draft further amended originating application annexed to her submissions filed on 2 March 2021.

2. Leave be granted to the Applicant to amend the amended statement of claim filed on 3 July 2020 in accordance with the draft further amended statement of claim annexed to her submissions filed on 2 March 2021 except for the following paragraphs which concern claims under the Australian Consumer Law and further particulars of aggravated damages:

(a) Paragraphs 11 and 12 under the heading ‘First Matter complained of’;

(b) Paragraphs 25(d) and 25(e) under the heading ‘Third Matter complained of’;

(c) Paragraphs 32 and 33 under the heading ‘Fourth Matter complained of’;

(d) Paragraphs 41 and 42 under the heading ‘Fifth Matter complained of’;

(e) Paragraphs 50 and 51 under the heading ‘Sixth Matter complained of’;

(f) Paragraphs 61 and 62 under the heading ‘Particulars of Aggravated Damages’.

Filing of pleadings

3. The orders made on 18 March 2021 are vacated.

4. By 28 April 2021, the Applicant is to file and serve a further amended originating application and a further amended statement of claim in accordance with the grants of leave set out in orders 1 and 2 above.

5. The Respondents are to file and serve a defence to the further amended statement of claim within 14 days of service of the further amended statement of claim.

6. The Applicant is to file and serve an amended reply within 7 days of service of the defence.

Referral to a Registrar

7. Pursuant to s 53A of the Federal Court of Australia Act 1976 (Cth), the matter is referred to a Registrar of this Court for mediation or an alternative dispute resolution process at the discretion of the Registrar on a date or dates not before 30 May 2021, such process to be conducted in person.

8. The parties are to comply with any direction given by the Registrar with respect to the conduct of the mediation or alternative dispute resolution process.

Costs

9. Costs of the application be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Finally, Ms Burrows has not advanced any submission in support of her amendment to include additional particulars of aggravated damages. In my view for reasons advanced by Fairfax, the additional particulars add nothing. The matters can be ventilated by evidence and the respondents will not be taken by surprise. This amendment will not be permitted.CONCLUSION Orders will be made granting leave to Ms Burrows to make the amendments she seeks to the originating application and statement of claim, except for the proposed additional amendments concerning claims under the Australian Consumer Law and aggravated damages. She will also be permitted to join Mr Hornery and Ms Davies to these proceedings. It is of significant concern that the pleadings in this matter have been re-shaped on a number of occasions and are yet to be finalised almost a year after it was commenced by Ms Burrows. It continues to organically expand. But the question is to what functional benefit. Without some form of intervention, proceedings of this nature are liable to becoming stuck in procedural skirmishes at great cost to the parties, the Court and the community. It is in the best interests of both parties and in my assessment, essential, that this matter be referred back to mediation or other suitable form of intervention by an experienced registrar in light of the changes to the pleadings that have occurred since September last year and the nature of the pleading and the case generally. Orders were made by consent on 18 March 2021 setting a timetable for the filing of amended pleadings and evidence following the determination of this application. That timetable will be adjusted to require the parties to participate in a mediation or similar intervention following the close of pleadings. In these circumstances, I will reserve the question of costs arising from the application.

Ratio Decidendi

Legal Principle Established

The respondents also object to the proposed further particulars of aggravated damages as set out above (at [18]). Ms Burrows already claims damages for the publication of imputations said to be conveyed by the Second through Seventh Matters (should the Sixth and Seventh Matters be allowed) which claims would include damages for hurt to feelings. Fairfax says the aggravated damages claim is thus effectively just repeating the claim that is already made in the substantive pleading of the applicant’s causes of action, and is not properly a matter of aggravation. It says the proposed amendment should be disallowed on this basis.CONSIDERATION For the reasons given by Fairfax, Ms Burrows cannot amend to add any claims for relief under the Australian Consumer Law. Section 19 of the Australian Consumer Law creates a clear exception in the case of information providers to the application of Pt 2-1. A statutory exception to this effect has existed for 35 years since Re Australian Ocean Line Pty Ltd v West Australian Newspapers Limited and William Ross Harvey [1985] FCA 37; 58 ALR 549. Further, the claim in the alternative under s 4 is not adequately pleaded or particularised; the pleading does not disclose how the Matters pertain to a future matter. Although if it were capable of doing so, the onus would shift to Fairfax to establish that it did have reasonable grounds for its representations. Each of these pleadings is fundamentally misconceived. Leave to make these amendments is refused. As noted, the Sixth Matter is similar in its form to the Third, Fourth and Fifth Matters in that it raises the publication of a tweet by an SMH journalist containing a link to the Second Matter on the SMH website. Although there is undoubtedly merit in Fairfax’s submission that Ms Burrows is confined to only the most nominal viewing and/or downloading of the tweet by operation of the limitation period, it concedes that the tweet remains publicly searchable and can also be located by any Twitter user who scrolls back far enough through Mr Hornery’s Twitter feed. In addition, regard must be had to r 8.21(2) of the Rules which provides that:An applicant may apply to the Court for leave to amend an originating application in accordance with paragraph (1) (c), (d), (e) or subparagraph (g) (i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. The rationale for this provision was explained by Gordon J in Environinvest Ltd (in liq) v Former Partnership of Webster, White, Gridley, Nairn, Newman, Peters and Miller (2012) 208 FCR 376; [2012] FCA 1307 (at [29]):Rule 8.21(2) expressly provides that an applicant may apply to the court for leave to amend an originating application in accordance with rr 8.21(1)(c), (d), (e) or (g)(i) even if the application is made after the end of any relevant period of limitation applying at the date the proceeding was started. Put simply, r 8.21(2) expressly provides that amendments made under, inter alia, r 8.21(1)(c) or (d) can be made notwithstanding the effluxion of a relevant limitation period. Such a result is not surprising. It is not surprising because, consistent with the earlier analysis of "mistake", such an amendment does not change or alter the substantive basis on which the proceeding was commenced.