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Cao v Horan

Cao v Horan

Case [2018] NSWDC 295 17 October 2018

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District Court

New South Wales

Medium Neutral Citation: Cao v Horan [2018] NSWDC 295
Hearing dates: 7 June 2018
Date of orders: 07 June 2018
Decision date: 17 October 2018
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) First defendant’s application to strike out the particulars of special damages and the Andrews claim is dismissed.
(2) First defendant to pay plaintiffs' costs of the application.
(3) Gibson DCJ to provide reasons for decision on a later date.
(4) First defendant granted leave to file and serve an Amended Defence on or before 14 June 2018.
(5) First defendant to pay the plaintiffs’ costs thrown away occasioned by the Amended Defence.
(6) Time for the parties to attempt to agree on categories of documents and interrogatories, be extended to on or before 6 July 2018.
(7) Pursuant to r 31.19 Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs to serve an expert report of an expert valuer in connection with the special damages claim on or before 2 August 2018.
(8) Matter stood over to the Defamation List on Thursday 16 August 2018 for further directions.

Catchwords: TORT – defamation – particularisation of claim for special damages
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 15.1
Cases Cited: Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154
Bristow v Adams [2012] NSWCA 166
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Hanson v Hunter [2015] NSWDC 220
Heugh v Askin [2014] WASC 30
Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3D) 161 (ONT. C.A.)
Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217
Pisano v Thrum (No 4) [2011] WASC 290
Ratcliffe v Evans [1892] 2 QB 524
Rayney v Western Australia (No 9) [2017] WASC 367
Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451
Wilson v Bauer Media Pty Ltd [2017] VSC 521
Texts Cited: Professor R. E. Brown, “Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada)” (Thomson Reuters, Canada)
Category: Procedural and other rulings
Parties: First Plaintiff: Yong Cao
Second Plaintiff: Leonards Pharmacy Pty Ltd
First Defendant: Tim Horan
Second Defendant: Karibu Print Media Pty Limited
Representation:
Counsel:
Plaintiffs: Ms S T Chrysanthou / Mr B C Dean
Defendants: Mr R Potter
Solicitors:
Plaintiffs: Robert James Lawyers
Defendants: Curwoods Lawyers

File Number(s): 2017/322299
Publication restriction: None

Judgment

These are my reasons for the ruling I made on 7 June 2018 refusing to strike out particulars of the plaintiff’s claim for special damages.
As can be seen from the pleading set out below, the second plaintiff particularises two claims for special damages. These are as follows:

There is a claim for diminution in the value of the business from the $2.9 million plus stock offer received before the publications and the $2.38 million plus stock offer which…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao v Horan

Details

AGLC: Cao v Horan [2018] NSWDC 295
Case: [2018] NSWDC 295
Decision Date: 17 October 2018

CaseChat Overview and Summary

Cao v Horan involved a defamation case in the Supreme Court of New South Wales. The plaintiffs, Mr and Mrs Cao, alleged defamation by the first defendant, Mr Horan, in comments made during a community meeting. The plaintiffs sought special damages, including loss of income and legal costs. The first defendant sought to strike out the claim for special damages and the claim by Mrs Andrews (the second plaintiff), arguing that the particulars were insufficient. The legal issues before the court included whether the plaintiffs had adequately particularised their claim for special damages and whether Mrs Andrews' claim could proceed. The court found that the plaintiffs had sufficiently particularised their special damages claim, allowing it to proceed, and dismissed the application to strike out Mrs Andrews' claim. The court ordered the first defendant to pay the plaintiffs' costs for the application and directed the plaintiffs to serve an expert report regarding the special damages claim. The matter was stood over for further directions.

Orders

Orders of the court

(1) First defendant’s application to strike out the particulars of special damages and the Andrews claim is dismissed.

(2) First defendant to pay plaintiffs' costs of the application.

(3) Gibson DCJ to provide reasons for decision on a later date.

(4) First defendant granted leave to file and serve an Amended Defence on or before 14 June 2018.

(5) First defendant to pay the plaintiffs’ costs thrown away occasioned by the Amended Defence.

(6) Time for the parties to attempt to agree on categories of documents and interrogatories, be extended to on or before 6 July 2018.

(7) Pursuant to r 31.19 Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs to serve an expert report of an expert valuer in connection with the special damages claim on or before 2 August 2018.

(8) Matter stood over to the Defamation List on Thursday 16 August 2018 for further directions.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Cao v Horan [2018] NSWDC 295

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 12 of 12 shown

Bauer Media Pty Ltd v Wilson (No 2)
[2018] VSCA 154 Para 15

…n relation to a claim for special damages by an actress for loss of movie roles, the Victorian Court of Appeal in Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154. These were proceedings for defamation where a challenge to special damages was raised. As the handing down of this decision was imminent at the time…
Rayney v The State of Western Australia [No 9]
[2017] WASC 367 Para 23

…in Wilson v Bauer Media Pty Ltd [2017] VSC 521 (overturned on appeal: Bauer Media Pty Ltd v Wilson (No 2) ) and Rayney v Western Australia (No 9) [2017] WASC 367 demonstrate, that is no longer the case. That is all the more reason for caution.…
Wilson v Bauer Media Pty Ltd
[2017] VSC 521 Para 23

…dgson v. Canadian Newspapers Co. (2000), 49 O.R. (3D) 161 (ONT. C.A.) at 164 per Sharpe JA). As the recent awards in Wilson v Bauer Media Pty Ltd [2017] VSC 521 (overturned on appeal: Bauer Media Pty Ltd v Wilson (No 2) ) and Rayney v Western Australia (No 9) [2017] WASC 367 demonstrate, that is no longer the cas…
Hanson v Hunter
[2015] NSWDC 220 Para 11

…s setting out the requirement for precision in relation to claims for special damage, a number of which are set out in my decision in Hanson v Hunter [2015] NSWDC 220.…
Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd
[2014] QSC 217 Para 13

…to have occurred, the requirement for precision has always been the keystone: see Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 at [42]-[49]. A plaintiff who does not set out particulars correctly the first time is less likely to be granted leave to replead, as is noted in Heu…
Heugh v Askin
[2014] WASC 30 Para 13

…9]. A plaintiff who does not set out particulars correctly the first time is less likely to be granted leave to replead, as is noted in Heugh v Askin [2014] WASC 30 and Pisano v Thrum (No 4) [2011] WASC 290. While all of these claims involved medical practices, that does not mean that there are special rules for…
Bristow v Adams
[2012] NSWCA 166 Para 23

…mages. This forms part of the general presumption of damage to reputation following publication of the matter complained of ( Bristow v Adams [2012] NSWCA 166).…
Pisano v THRUM [No 4]
[2011] WASC 290 Para 13

…iculars correctly the first time is less likely to be granted leave to replead, as is noted in Heugh v Askin [2014] WASC 30 and Pisano v Thrum (No 4) [2011] WASC 290. While all of these claims involved medical practices, that does not mean that there are special rules for medical or pharmacy practices.…
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd
[2004] QSC 457

…e link between the letter and the plaintiff working fewer hours per week. [11] In Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 Chesterman J in the Supreme Court of Queensland said: In any cause of action in respect of which causation is an essential element it is necessary to p…
Selecta Homes and Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd
[2001] SASC 140 Para 5

…r, be a substantial factor in bringing about the harm ( Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451);…
Chakravarti v Advertiser Newspapers Ltd
[1998] HCA 37 Para 5

…reputation. It is enough if it is “a” cause of the injury and the consequences that flow from it ( Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 per Kirby J). It must, however, be a substantial factor in bringing about the harm ( Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing C…
[1892] 2 QB 524
[1892] 2 QB 524 Para 19

…t claims for special damages needed to be pleaded with greater particularity than is otherwise the case. In the earlier decision of Ratcliffe v Evans [1892] 2 QB 524 at 533 Bowen LJ considered it was not necessary for a plaintiff suing for special damages to identify and prove the publication that had an impact on…

Legislation cited in this decision · 1

Uniform Civil Procedure Rules 2005 (NSW)
14.28, 15.1 3 mentions (from Para 9)

Medium Neutral Citation:	Cao v Horan [2018] NSWDC 295
Hearing dates:	7 June 2018
Date of orders:	07 June 2018
Decision date:	17 October 2018
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) First defendant’s application to strike out the particulars of special damages and the Andrews claim is dismissed. (2) First defendant to pay plaintiffs' costs of the application. (3) Gibson DCJ to provide reasons for decision on a later date. (4) First defendant granted leave to file and serve an Amended Defence on or before 14 June 2018. (5) First defendant to pay the plaintiffs’ costs thrown away occasioned by the Amended Defence. (6) Time for the parties to attempt to agree on categories of documents and interrogatories, be extended to on or before 6 July 2018. (7) Pursuant to r 31.19 Uniform Civil Procedure Rules 2005 (NSW) the plaintiffs to serve an expert report of an expert valuer in connection with the special damages claim on or before 2 August 2018. (8) Matter stood over to the Defamation List on Thursday 16 August 2018 for further directions.
Catchwords:	TORT – defamation – particularisation of claim for special damages
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 15.1
Cases Cited:	Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Bauer Media Pty Ltd v Wilson (No 2) [2018] VSCA 154 Bristow v Adams [2012] NSWCA 166 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Hanson v Hunter [2015] NSWDC 220 Heugh v Askin [2014] WASC 30 Hodgson v. Canadian Newspapers Co. (2000), 49 O.R. (3D) 161 (ONT. C.A.) Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 Pisano v Thrum (No 4) [2011] WASC 290 Ratcliffe v Evans [1892] 2 QB 524 Rayney v Western Australia (No 9) [2017] WASC 367 Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 Wilson v Bauer Media Pty Ltd [2017] VSC 521
Texts Cited:	Professor R. E. Brown, “Brown on Defamation (Canada, United Kingdom, Australia, New Zealand, United States), Second Edition (formerly The Law of Defamation in Canada)” (Thomson Reuters, Canada)
Category:	Procedural and other rulings
Parties:	First Plaintiff: Yong Cao Second Plaintiff: Leonards Pharmacy Pty Ltd First Defendant: Tim Horan Second Defendant: Karibu Print Media Pty Limited
Representation:	Counsel: Plaintiffs: Ms S T Chrysanthou / Mr B C Dean Defendants: Mr R Potter Solicitors: Plaintiffs: Robert James Lawyers Defendants: Curwoods Lawyers
File Number(s):	2017/322299
Publication restriction:	None