Cassar v Network Ten Pty Ltd - [2014] NSWSC 1576

Supreme Court

New South Wales

Case Title: Cassar v Network Ten Pty Ltd

Medium Neutral Citation: [2014] NSWSC 1576

Hearing Date(s): 8 August 2014

Decision Date: 08 August 2014

Before: McCallum J

Decision:
Rulings given as to imputations; each party to bear its own costs of the application.

Catchwords: DEFAMATION - form of pleadings - no question of principle

Legislation Cited: Crimes Act 1900

Category: Interlocutory applications

Parties: Jacob Cassar (plaintiff)
Network Ten Pty Limited (defendant)

Representation

- Counsel: Counsel:
Dr G O'Shea (plaintiff)
L Barnett (defendant

- Solicitors: Solicitors:
Conditsis & Associates Lawyers (plaintiff) Banki Haddock Fiora (defendant)

File Number(s): 2012/21034

Publication Restriction: None

JUDGMENT

HER HONOUR: These are proceedings for defamation commenced by Jacob Cassar against Network Ten Pty Limited. The proceedings were commenced by statement of claim filed on 20 January 2012. The statement of claim pleaded two causes of action. In paragraph 3, the plaintiff complained of a television broadcast published by the defendant. In paragraph 4 the plaintiff complained of the posting of that broadcast on the internet on the website which, I think it is common ground, is owned and operated by a stranger to the proceedings.
On 22 June 2012 Hislop J refused the plaintiff's application for an extension of the limitation period in respect of the first cause of action. Accordingly, the only cause of action that remains is the plaintiff's claim in respect of any downloading of the original broadcast from the website to which I have referred.
The plaintiff has, in those circumstances, had some difficulty providing to the defendant adequate particulars as to the persons who it is alleged downloaded the matter complained of from the website within the twelve month period prior to the commencement of the proceedings. The statement of claim simply asserts in the particulars of publication that he "expects to discover that information through discovery, interrogatories or subpoena".
Today the defendant seeks an order that those particulars be provided. They are necessary particulars. Apart from being required under the Uniform Civil Procedure Rules, their importance emerges in the need for the defendant to go into the proceedings knowing the scope of publication pleaded against it, which will inform its decisions as to any attempt to settle the proceedings and its conduct of the proceedings (including the consideration of any defences such as the defence of qualified privilege and an assessment of the likely damages that might be awarded if the plaintiff is successful).
The plaintiff accepts in those circumstances that the particulars must be provided, but has indicated that it is necessary for him to seek that information from the proprietor of the website. He consents to an order to provide particulars sought provided sufficient time is given for that to occur. That disposes of the first matter listed for argument today.
I should note an anterior point taken on behalf of the defendant, which is that, the first cause of action having been precluded by the judgment of Hislop J, paragraph 3 of the…

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.

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Details

Case: [2014] NSWSC 1576
Decision Date: 08 August 2014

CaseChat Overview and Summary

The case of Cassar v Network Ten Pty Ltd involved a defamation claim brought by the plaintiff, Cassar, against Network Ten Pty Ltd, the defendant. The dispute centred around an episode of the television program "Survivor Australia: Heroes v Healers v Vikings" which aired on the defendant's channel. Cassar, a former contestant on the show, alleged that statements made by other contestants during the episode defamed him and caused damage to his reputation. The matter was heard in the Federal Court of Australia.

The primary legal issues before the court were whether the statements made by the contestants on the television program were capable of being defamatory and whether the pleadings were sufficient to establish a prima facie case for defamation. The court also needed to determine whether the defendant's plea of truth was valid and if there were any jurisdictional issues regarding the form of the pleadings.

In its decision, the court found that the statements made during the program were indeed capable of being defamatory. It also determined that the plaintiff's pleadings were sufficient to establish a prima facie case, despite the defendant's argument that they were not in the proper form. The court rejected the defendant's plea of truth, concluding that there were factual disputes that needed to be resolved at trial. The jurisdictional issue regarding the form of the pleadings was deemed not to be a bar to proceeding with the case.

The court ordered the case to proceed to trial, ensuring that the plaintiff's claim would be fully heard and determined. The defendant was instructed to prepare for the trial, and the plaintiff was given the opportunity to present their case in the proper form.

Orders