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Channel Seven Adelaide Pty Ltd v Manock

Channel Seven Adelaide Pty Ltd v Manock

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Case Copied 22 November 2010 84 min read

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SUPREME COURT OF SOUTH AUSTRALIA

(Full Court)

CHANNEL SEVEN ADELAIDE PTY LTD v MANOCK

[2010] SASCFC 59

Judgment of The Full Court

(The Honourable Justice Bleby, The Honourable Justice Gray and The Honourable Justice White)

22 November 2010

PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PROCEDURE UNDER RULES OF COURT - AMENDMENT

Action by respondent for defamation commenced on 22 March 2004 - non-compliance by defendant with directions as to pleadings - amended defence of fair comment and justification filed on 2 March 2005 - defence of justification and some particulars of fair comment struck out by District Court Master on 25 September 2005 - liberty to replead - subsequent appeals to District Court Judge, Supreme Court and High Court as to defence of fair comment only - defence of fair comment struck out - application to amend defence to replead justification made on 15 February 2008 - refused by Master - allowed on appeal by District Court Judge - refused on appeal to single Judge of Supreme Court - whether grounds on which single Judge could properly interfere - principles of House v The King (1936) 55 CLR 499 - whether discretion of single Judge properly exercised in respect of arguable defence of justification - consideration of factors identified in Aon Risk Services Australia Ltd v ANU (2009) 239 CLR 175.
Held: Permission to appeal granted - significant question of public interest - matters proper to be considered on significantly delayed application for permission to amend.
Per Bleby & White JJ: Appeal dismissed - District Court Judge took into account irrelevant matters and failed to take into account relevant matters - no error in exercise of discretion by single Judge.
Per Gray J, dissenting: appeal allowed - appellate Judge proceeded on a misunderstanding as to when appellant became aware of facts material to its proposed amended defence - on a proper application of Aon Risk Services, the appellant should be given leave to amend its defence.
Supreme Court Civil Rules 2006 (SA), r 286; Supreme Court Rules 1987 (SA), r 46A, r 47, r 53, r 95.15, r 97.17, r 97.18; Supreme Court Rules (ACT), r 21, r 501, r 502; Defamation Act 2005 (SA), referred to.
House v The King (1936) 55 CLR 499; Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175, applied.
Advertiser-News Weekend Publishing Co Ltd v Manock (2005) 91 SASR 206; Poly Peck (Holdings) PLC v Trelford [1986] QB 1000; Manock v Channel Seven Adelaide Pty Ltd (2006) 95 SASR 462; Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245; Manock v Channel Seven Adelaide Pty Ltd [2010] SADC 45; Manock v Channel Seven Adelaide Pty Ltd [2010] SASC 198; Mullett v Gabriel (1989) 52 SASR 330; Mac Audio v Eddy [1999] SASC 443; State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146; Worldwide Corporation Ltd v GPT Ltd [1998] EWCA…

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: [2010] SASCFC 59
Decision Date: 22 November 2010

CaseChat Overview and Summary

Channel Seven Adelaide Pty Ltd (the appellant) sought to amend its defence in defamation proceedings brought by Mr Manock (the respondent). The original action commenced in March 2004, and an amended defence including fair comment and justification was filed in March 2005. The defence of justification and some particulars of fair comment were struck out by a District Court Master in September 2005, with liberty to replead. Subsequent appeals concerning the defence of fair comment were unsuccessful. An application to amend the defence to replead justification was refused by the Master in February 2008, but this decision was allowed on appeal to a District Court Judge. The appellant then appealed to a single Judge of the Supreme Court, who refused the amendment. The appeal to the Full Court of the Supreme Court concerned whether the single Judge had erred in interfering with the discretion of the District Court Judge.

The Full Court was required to determine whether the single Judge of the Supreme Court had properly exercised their discretion in refusing to allow the amendment to the defence of justification, considering the principles established in *House v The King* and the factors relevant to significantly delayed applications for amendment as outlined in *Aon Risk Services Australia Ltd v ANU*. The court also considered whether the appeal raised a significant question of public interest.

Bleby and White JJ dismissed the appeal, finding that the District Court Judge had taken into account irrelevant matters and failed to consider relevant matters when allowing the amendment, and therefore the single Judge had not erred in exercising their discretion. Gray J, dissenting, would have allowed the appeal, reasoning that the appellate Judge had misunderstood when the appellant became aware of the facts supporting its proposed amended defence and that, applying the principles in *Aon Risk Services*, leave to amend should have been granted.

Permission to appeal was granted by the Full Court due to the significant question of public interest involved. The appeal was ultimately dismissed by the majority.

Orders