Crespin v Channel Seven Sydney Pty Ltd - [2015] NSWDC 24

District Court

New South Wales

Medium Neutral Citation: Crespin v Channel Seven Sydney Pty Ltd [2015] NSWDC 24
Hearing dates: 30 January 2015
Decision date: 30 January 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Defendants’ objection to imputations 5(b), 5(l), 7(b) and 7(l) on the basis of form (“callous person”) dismissed; these imputations will go to the jury.
(2) Imputations 5(d) (“conned”) and 5(f) (“swindled”), and similarly 7(d) and 7(f), are to be pleaded as alternatives.
(3) Imputations 5(g) and 7(g) are struck out with leave to replead.
(4) Imputations 5(e) and 7(e) are struck out with leave to replead.
(5) Imputations 5(h) and 7(h) are struck out with leave to replead by replacing “falsely” with “hypocritically”.
(6) Imputations 5(i) and 7(i) will go to the jury.
(7) Imputations 5(j), 5(r), 7(j) and 7(r) will go to the jury (objections withdrawn).
(8) Imputations 5(k) and 7(k) will go to the jury.
(9) Require the plaintiffs in the redrafted statement of claim to include full particulars of the “multiple times” promotions for Today Tonight made between 7 and 12 November 2013.
(10) Any claim for “actual or special damages” must be fully particularised in the amended statement of claim.
(11) Amended Statement of Claim in 21 days.
(12) Each party pay their or its own costs.
(13) Matter stood over to Thursday 26 February 2015 at 2:00pm.

Catchwords: TORT - defamation - pleading - form and capacity of imputations - no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
Cases Cited: Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343
Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380
Berezovsky v Forbes [2001] EWCA Civ 1251
Coleman v John Fairfax Pty Ltd [2003] NSWSC 564
Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227
Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Gibson v Nationwide News Pty Limited [2007] NSWCA 284
Habib v Radio 2UE Pty Ltd [2009] NSWCA 231
Habib v Radio 2UE Pty Ltd [2010] NSWSC 244
Habib v Radio 2UE Pty Ltd (No 4) [2012] NSWDC 12
John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541
Laundy v Bourne (Supreme Court of New South Wales, Levine J, 17 April 1998)
Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217
Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213
McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133
Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB)
Polias v Ryall [2013] NSWSC 1267
Scott v Jones & Anor [2002] NSWSC 210
Singleton v Ffrench & Ors (1986) 5 NSWLR 425
Visscher v Maritime Union of Australia (No 6) [2014]…

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: [2015] NSWDC 24
Decision Date: 30 January 2015

CaseChat Overview and Summary

In Crespin v Channel Seven Sydney Pty Ltd, the plaintiff sought to sue the defendant for defamation. The case was heard by the Supreme Court of New South Wales. The plaintiff claimed that certain defamatory statements were broadcast by the defendant in a television program called Today Tonight. The defendant objected to certain imputations in the statement of claim on various grounds, including form and capacity.

The legal issues the court needed to address were whether the defendant's objections to the form and capacity of certain imputations in the statement of claim were valid. The court also needed to consider whether the plaintiff's statement of claim adequately pleaded the defamatory imputations and whether the plaintiff's claim for actual or special damages was particularised.

The court found that the defendant's objections to the form and capacity of certain imputations were not well founded. The court held that the imputations in question would go to the jury, with some exceptions. The court also ruled that certain imputations should be pleaded as alternatives, and that some imputations were struck out with leave to replead. The court further held that the plaintiff's statement of claim needed to be amended to include full particulars of the promotions for Today Tonight made between 7 and 12 November 2013, and that any claim for actual or special damages must be fully particularised. The court ordered the plaintiff to file an amended statement of claim within 21 days and set the matter down for further hearing. Each party was ordered to pay their own costs.

Orders

Orders of the court

(1) Defendants’ objection to imputations 5(b), 5(l), 7(b) and 7(l) on the basis of form (“callous person”) dismissed; these imputations will go to the jury.

(2) Imputations 5(d) (“conned”) and 5(f) (“swindled”), and similarly 7(d) and 7(f), are to be pleaded as alternatives.

(3) Imputations 5(g) and 7(g) are struck out with leave to replead.

(4) Imputations 5(e) and 7(e) are struck out with leave to replead.

(5) Imputations 5(h) and 7(h) are struck out with leave to replead by replacing “falsely” with “hypocritically”.

(6) Imputations 5(i) and 7(i) will go to the jury.

(7) Imputations 5(j), 5(r), 7(j) and 7(r) will go to the jury (objections withdrawn).

(8) Imputations 5(k) and 7(k) will go to the jury.

(9) Require the plaintiffs in the redrafted statement of claim to include full particulars of the “multiple times” promotions for Today Tonight made between 7 and 12 November 2013.

(10) Any claim for “actual or special damages” must be fully particularised in the amended statement of claim.

(11) Amended Statement of Claim in 21 days.

(12) Each party pay their or its own costs.

(13) Matter stood over to Thursday 26 February 2015 at 2:00pm.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Crespin v Channel Seven Sydney Pty Ltd [2015] NSWDC 24
Hearing dates:	30 January 2015
Decision date:	30 January 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Defendants’ objection to imputations 5(b), 5(l), 7(b) and 7(l) on the basis of form (“callous person”) dismissed; these imputations will go to the jury. (2) Imputations 5(d) (“conned”) and 5(f) (“swindled”), and similarly 7(d) and 7(f), are to be pleaded as alternatives. (3) Imputations 5(g) and 7(g) are struck out with leave to replead. (4) Imputations 5(e) and 7(e) are struck out with leave to replead. (5) Imputations 5(h) and 7(h) are struck out with leave to replead by replacing “falsely” with “hypocritically”. (6) Imputations 5(i) and 7(i) will go to the jury. (7) Imputations 5(j), 5(r), 7(j) and 7(r) will go to the jury (objections withdrawn). (8) Imputations 5(k) and 7(k) will go to the jury. (9) Require the plaintiffs in the redrafted statement of claim to include full particulars of the “multiple times” promotions for Today Tonight made between 7 and 12 November 2013. (10) Any claim for “actual or special damages” must be fully particularised in the amended statement of claim. (11) Amended Statement of Claim in 21 days. (12) Each party pay their or its own costs. (13) Matter stood over to Thursday 26 February 2015 at 2:00pm.
Catchwords:	TORT - defamation - pleading - form and capacity of imputations - no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), rr 14.28 and 28.2
Cases Cited:	Ahmed v Harbour Radio Pty Ltd (No 2) [2011] NSWSC 20 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Bass v TCN Channel Nine Pty Ltd [2006] NSWCA 343 Bateman v Fairfax Media Publications Pty Ltd (No 2) [2014] NSWSC 1380 Berezovsky v Forbes [2001] EWCA Civ 1251 Coleman v John Fairfax Pty Ltd [2003] NSWSC 564 Corby v Allen & Unwin Pty Ltd [2014] NSWCA 227 Dent v Macquarie Radio Network Pty Ltd [2006] NSWSC 186 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 Gibson v Nationwide News Pty Limited [2007] NSWCA 284 Habib v Radio 2UE Pty Ltd [2009] NSWCA 231 Habib v Radio 2UE Pty Ltd [2010] NSWSC 244 Habib v Radio 2UE Pty Ltd (No 4) [2012] NSWDC 12 John Fairfax Publications Pty Ltd v Blake; David Syme v Blake (2001) 53 NSWLR 541 Laundy v Bourne (Supreme Court of New South Wales, Levine J, 17 April 1998) Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 Mahommed v Channel Seven Sydney Pty Ltd [2006] NSWCA 213 McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133 Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) Polias v Ryall [2013] NSWSC 1267 Scott v Jones & Anor [2002] NSWSC 210 Singleton v Ffrench & Ors (1986) 5 NSWLR 425 Visscher v Maritime Union of Australia (No 6) [2014]…