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
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- Case
- [2023] FCA 726
- Decision Date
CaseChat Overview and Summary
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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