Cooper v Nine Entertainment Co Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726

File number(s): TAD 7 of 2023
Judgment of: MCELWAINE J
Date of judgment: 3 July 2023
Catchwords:

PRACTICE AND PROCEDURE – Application to amend originating application and statement of claim including joining new respondent pursuant to rr 8.21 and 9.05 of the Federal Court Rules 2011 (Cth) – consideration of whether amendment is permitted in circumstances where claim may be otherwise out of time or liable to be struck out– consideration whether claims arise out of the same facts – where rules must be construed as a whole with the overall intent of achieving the overarching purpose – application allowed

DEFAMATION – consideration of ss 12, 12A and 12B of the Defamation Act 2005 (Tas) – where applicant claims defamatory material was published in both print and online articles – where concerns notice given for print article only and statement of claim as unamended references online article only – consideration of whether concerns notice was given in relation to publication relied upon – whether concerns notice given to publisher pre-litigation – whether amended imputations are “substantially the same” by reference to ss 12A and 12B of the Defamation Act – consideration of single publication rule

Legislation:

Federal Court of Australia Act 1976 (Cth) ss 31A, 37M, 37N, 37P, 59(2B)

Federal Court Rules 2011 (Cth) rr 1.32, 1.33, 1.34, 8.21, 9.05, 16.21, 16.51, 16.53

Acts Interpretation Act 1931 (Tas) s 8A

Defamation Act 2005 (Tas) ss 3, 4, 6, 7, 8, 10A, 12, 12A, 12B, 13, 20A, 20AB, 20AC, 20AD

Defamation Amendment Bill 2021 (Tas)

Cases cited:

Adeang v Australian Broadcasting Corporation [2016] FCA 1200

Air Link Pty Ltd v Paterson (No 2) (2003) 58 NSWLR 388; [2003] NSWCA 251

Allstate Life Insurance Company v Australia and New Zealand Banking Group Ltd (1995) 58 FCR 26

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Australian Securities and Investments Commission v Australian Property Custodian Holdings Ltd (No2) (2013) 213 FCR 289; [2013] FCA 409

Barilaro v Shanks-Markovina (No3) [2021] FCA 1100

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Duke of Brunswick v Harmer (1849) 14 QB 185

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

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; [2005] HCA 52

Fitness First Australia Pty Ltd v Fenshaw Pty Ltd (2017) 341 ALR 607; [2016] NSWCA 207

Horton v Jones (No 2) (1939) 39 SR (NSW) 305

Hoser v Herald and Weekly Times Pty Ltd [2022] VCC 2213

Hossain v Ali (Ruling No 2) [2023] VCC 514

Lachaux v Independent Print Media Ltd [2020] AC 612

Ludwig v Coshott (1994) 83 LGERA 22

McGrath v HNSW…

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Details
Case
[2023] FCA 726
Decision Date

CaseChat Overview and Summary

In Cooper v Nine Entertainment Co Pty Ltd, the applicant sought permission to amend an originating application and a statement of claim, including the addition of a new respondent, The Age Company Pty Ltd, to the proceedings. The applicant aimed to address potential deficiencies in the original filings, particularly concerning the timeliness of the claims and the adequacy of the notice of concerns provided under the Defamation Act 2005 (Tas). The court needed to determine whether the proposed amendments were permissible given that the claims might otherwise be out of time or vulnerable to being struck out. Furthermore, the court had to consider whether the amended claims were based on the same facts as the original claims and whether they met the requirements for a concerns notice, particularly in relation to the single publication rule.

The court evaluated the application under rules 8.21 and 9.05 of the Federal Court Rules 2011 (Cth), focusing on whether the amendments would serve the overarching purpose of achieving just results. It examined the necessity of joining The Age Company Pty Ltd and the implications of the amendments for the timeliness of the claims. The court also assessed whether the concerns notice was appropriately given with respect to both the print and online publications, and whether the amended imputations were substantially the same. The court concluded that the amendments were warranted to ensure the proper administration of justice and that the overarching purpose of the rules would be served by permitting the amendments.

The court allowed the application, granting the applicant leave to file amended documents as outlined. The decision included joining The Age Company Pty Ltd as a respondent and permitting the applicant to file amended documents substantially in the form provided. The court also directed that submissions on consequential orders, including costs, be provided within a specified timeframe, allowing for a right of reply. The court emphasised that the determination of consequential orders and costs would be made on the papers, subject to any further orders. This ruling ensures that the amended claims can proceed while maintaining procedural fairness and the integrity of the court process.

Orders

Orders of the court

1. The Age Company Pty Ltd is joined as a respondent to the proceeding.

2. The applicant has leave to file an amended originating application substantially in the form of the document annexed to the applicant’s amended interlocutory accepted for filing on 3 July 2023.

3. The applicant has leave to file an amended statement of claim substantially in the form of the document annexed to the applicant’s amended interlocutory application accepted for filing on 3 July 2023.

4. Submissions as to consequential orders, including costs, are to be provided in writing within five business days of the publication of these reasons and with a right of reply three business days thereafter. The submissions must not in any case exceed five pages.

5. Subject to any further order of the Court, the determination of consequential orders and costs will be made on the papers.

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

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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