Dent v Burke (No 2)

[2019] ACTSC 259

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Dent v Burke (No 2)

Citation:

[2019] ACTSC 259

Hearing Date:

Decided on written submissions

DecisionDate:

18 September 2019

Before:

Mossop J

Decision:

See [18]

Catchwords:

COSTS – APPLICATION FOR SPECIAL COSTS ORDER –where plaintiff unsuccessful on hearing of separate question – where determination of separate question determined the whole of the proceedings – where defendant seeks confirmation of order that plaintiff pays costs on party and party basis

Legislation Cited:

Court Procedures Rules 2006 (ACT), rr 1521, 1523, 1721

Cases Cited:

Dent v Burke [2019] ACTSC 166

GJ v AS (No 4) [2017] ACTCA 7
Lewis v Chief Executive Department of Justice and Community Safety (ACT) (No 2) [2014] ACTSC 196

Oshlack v Richmond River Council [1998] HCA 11; 193 CLR 72

Parties:

Wendy Dent (Plaintiff)

Donald Burke (Defendant)

Representation:

Solicitors

Capital Lawyers (Plaintiff)

Kalantzis Lawyers (Defendant)

File Number:

SC 290 of 2018

MOSSOP J:

Introduction

1. The history of this matter was summarised in my decision in Dent v Burke [2019] ACTSC 166 at [1]-[5].

1. On 27 November 2017, the defendant, Donald (Don) Burke gave a half hour long interview on a television program called “A Current Affair”. That is a program aired on television broadcasting stations affiliated with the National Nine Network and on various associated websites.

2. On 20 June 2018, the plaintiff commenced these proceedings claiming damages for defamation arising from publication of the matters in the interview. The only defendant is Mr Burke who is identified as having published the broadcast. That approach relies upon the broad scope of liability for publication as explained in Webb v Bloch (1928) 41 CLR 331 at 363-364.

3. The interview followed the disclosure of a variety of allegations of bullying and sexual misconduct made against the defendant. During the course of the interview, the defendant made a number of admissions about bullying behaviour and extramarital affairs but generally denied the allegations of sexual misconduct. Amongst those allegations were allegations attributed to the plaintiff that, when auditioning for a part on the defendant’s television program, the defendant asked her to audition naked to the waist. The imputations alleged by the plaintiff to be conveyed by the interview are:

1. That the plaintiff lied when she alleged that [the defendant] asked her to audition naked to the waist when she sought to be engaged on the program “Burke’s Backyard”; and

2. That the plaintiff made a false allegation against [the defendant] of sexual harassment, motivated by her wish to join a witch-hunt against Mr Burke.

4. The defendant filed a Defence on 20 August 2018 denying that the interview conveyed the pleaded imputations and pleading defences of justification, common law qualified privilege and statutory privilege.

5. On 3 April 2019, the defendant filed an application in proceedings seeking to have a separate question decided pursuant to r 1521 of the Court Procedures Rules 2006 (ACT). The separate question proposed was whether the interview conveyed the imputations pleaded in…