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Facer v Wolfe

Facer v Wolfe

Case [2013] NSWDC 231 28 November 2013

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District Court

New South Wales

Medium Neutral Citation: Facer v Wolfe [2013] NSWDC 231
Hearing dates: 28 November 2013
Decision date: 28 November 2013
Before: Gibson DCJ
Decision:
(1) The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance.
(2) By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons).
(3) These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained.
(4) Note Gibson DCJ is not part heard.
(5) Costs of today reserved.

Catchwords: TORT - defamation - email by member of a body corporate management to 5 fellow members containing imputations about strata manager - defences of justification, contextual truth, honest opinion and unlikelihood of harm - defendant fails to answer a request for particulars and defence is struck out - proceedings listed for hearing as an assessment hearing in circumstances where the defendant, a litigant in person, is not present - defendant advised of hearing date the week beforehand but is overseas - hearing vacated
Legislation Cited: Civil Liability Act 2002 (NSW)
Civil Procedure Act 2005 (NSW), ss 56 - 62 and 66
Defamation Act 1974 (NSW)
Defamation Act 2005 (NSW), ss 35 and 38
Uniform Civil Procedure Rules 2005 (NSW), rr 15.22 - 15.30 and 29.7
Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6
Attrill v Christie [2007] NSWSC 1386
Ford v Nagle [2004] NSWCA 33
French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584
Hallam v Ross [2011] QCA 274
Hickie v Perkins (Supreme Court of NSW, Levine J, 15 November 1996)
Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.)
Kingdon v Kirk (1887) 37 Ch D 141
Knapp v Hinchcliffe [2004] QSC 326
Magjarraj v Asteron Life Ltd [2009] NSWSC 1433
Martin v Bruce (2007) 6 DCLR 15
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Scott v Handley [1999] FCA 404
Stone v Smith (1887) 35 Ch D 188
Texts Cited: Ritchie's Uniform Civil Procedure (NSW)
Tobin & Sexton, Australian Defamation Law and Practice
Category: Procedural and other rulings
Parties: Plaintiff: Jeffrey Michael Facer
Defendant: Jane Wolfe
Representation: Plaintiff: Mr R Weaver
Defendant: No appearance
Plaintiff: Worthington & Reading Lawyers
Defendant: No appearance

File Number(s): 2011/226458
Publication restriction: None

Judgment

These proceedings were listed before me today for hearing. I set out my reasons for adjourning the hearing, as reflected in the orders set out below.

The plaintiff commenced proceedings for defamation after the defendant sent an email on 28 February 2011 to five fellow…

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.

Continue reading Facer v Wolfe

Details

AGLC: Facer v Wolfe [2013] NSWDC 231
Case: [2013] NSWDC 231
Decision Date: 28 November 2013

CaseChat Overview and Summary

The matter of Facer v Wolfe involved a dispute concerning alleged defamatory statements made in an email by the defendant, Jane Wolfe, to five fellow members of a body corporate management committee. The plaintiff, Facer, alleged that the email contained imputations about the strata manager. The dispute was heard in the Supreme Court of New South Wales. The legal issues before the court were whether the defendant's email contained defamatory statements and, if so, whether the defences of justification, contextual truth, honest opinion, and unlikelihood of harm were applicable. The court was required to determine whether the defendant had failed to answer a request for particulars, leading to the striking out of her defence, and whether the proceedings should proceed as an assessment hearing in the absence of the defendant.

The court found that the defendant had failed to answer a request for particulars, resulting in the striking out of her defence. The proceedings were listed for hearing as an assessment hearing, but the defendant, a litigant in person, was not present. The defendant had been advised of the hearing date the week beforehand but was overseas at the time. The court vacated the hearing due to the circumstances surrounding the defendant's notification of the hearing date and her overseas status. The matter was to be returned to the Defamation List for further consideration, with the defendant to be notified by email by the court of the orders and provided with a copy of the judgment. The costs of the proceedings were reserved.

The court's orders included vacating the hearing date, returning the proceedings to the Defamation List for a fresh hearing date, and notifying the defendant of the orders and providing her with a copy of the judgment. The defendant was to be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date was to be obtained. The costs of the proceedings were reserved.

Orders

Orders of the court

(1) The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance.

(2) By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons).

(3) These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained.

(4) Note Gibson DCJ is not part heard.

(5) Costs of today reserved.

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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Actions

Citations

Facer v Wolfe [2013] NSWDC 231

Most Recent Citation

Mohareb v Palmer [2015] NSWDC 134

Cases Citing This Decision

J v O [2023] NSWDC 360
Citation 1 (Para 21)

…ously been represented and relatively active, is still a defendant who has not been given sufficient notice, for the reasons set out in Facer v Wolfe [2013] NSWDC 231.…
Alawadi v Widad Kamel Farhan trading as the Australian Arabic Panorama Newspaper [2015] NSWDC 279
Citation 2 (Para 3)

…reason, such as ill health. Failure to differentiate between these reasons and to deal with the reason for delay can lead to unfairness or injustice: Facer v Wolfe (2013) 17 DCLR 391. These issues are relevant when considering a range of delaying behaviours, such as failure to comply with orders, overuse of the court s…
Mohareb v Palmer [2015] NSWDC 134
Citation 3 (Para 24)

…bles and the claim (or defence) is not unmeritorious on its face. Such applications seem to be particularly common in defamation proceedings; in both Facer v Wolfe (2013) 17 DCLR (NSW) 391; Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 failure to answer a request for particulars, sent…

See all citing cases →

Cases Cited

Zamia Investments Pty Ltd v Mesana Pty Ltd [2011] QCA 274
Citation 1 (Para 1)

…me for seeking particulars to elapse (but cf Ford v Nagle [2004] NSWCA 33, Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 and Hallam v Ross [2011] QCA 274) and these orders have been given full weight by me in coming to my determination.…
French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584
Citation 2 (Para 1)

…"Adequate" notice was identified as being "reasonable" by Hallen J in French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584 at [14]:…
Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365
Citation 3 (Para 1)

…ure ( NSW ) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]. In an adversarial system, the responsibility for conduct of a case rests with the party concerned and failure to appear in court is not a ma…
Magjarraj v Asteron Life Limited [2009] NSWSC 1433
Citation 4 (Para 1)

…, they must have had "adequate" notice of the hearing date ( Ritchie's Uniform Civil Procedure (NSW) at [29.7.2], citing Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 at [22]).…
Attrill v Christie [2007] NSWSC 1386
Citation 5 (Para 1)

…(NSW) were for assessment of damages only and in both cases quantum was a hotly contested issue ( Martin v Bruce (2007) 6 DCLR 15; Attrill v Christie [2007] NSWSC 1386). A party who may not oppose the striking out of a defence may still wish to be heard on damages in defamation, in much the same way that damages in…
Martin v Bruce [2007] NSWDC 264
Citation 6 (Para 1)

…he first two hearings under the Defamation Act 2005 (NSW) were for assessment of damages only and in both cases quantum was a hotly contested issue ( Martin v Bruce (2007) 6 DCLR 15; Attrill v Christie [2007] NSWSC 1386). A party who may not oppose the striking out of a defence may still wish to be heard on damages in d…
Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6
Citation 7 (Para 1)

…the plaintiff had allowed the time for seeking particulars to elapse (but cf Ford v Nagle [2004] NSWCA 33, Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 and Hallam v Ross [2011] QCA 274) and these orders have been given full weight by me in coming to my determination.…
Knapp v Hinchliffe [2004] QSC 326
Citation 8 (Para 1)

…under an insurance contract for homeowners sued for defamation have been the subject of discussion in caselaw both in Australia ( Knapp v Hinchcliffe [2004] QSC 326) and overseas ( Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.)), and the existence of such insurance may be relevant n…
Ford v Nagle [2004] NSWCA 33
Citation 9 (Para 1)

…opportunity to provide particulars, in circumstances where the plaintiff had allowed the time for seeking particulars to elapse (but cf Ford v Nagle [2004] NSWCA 33, Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 and Hallam v Ross [2011] QCA 274) and these orders have been given full weight by me in com…
Scott v Handley [1999] FCA 404
Citation 10 (Para 1)

…ed in accordance with the principles set out in ss 56 - 62. Examples include late service of documents on an unrepresented litigant ( Scott v Handley [1999] FCA 404). Ritchie's Uniform Civil Procedure ( NSW ) notes at [s.66.5] that, "where proceedings have been regularly fixed for hearing, with due notice to the…
Cameron v Cole [1944] HCA 5
Citation 11

…date. It is a fundamental principle that a party who may be adversely affected by the making of court orders has a right to be heard: Cameron v Cole [1944] HCA 5; (1944) 68 CLR 571, in which Rich J said (at 589):…
Stone v Smith (1887) 35 ChD 188
Citation 12 (Para 1)

…s consistent with what is sought, the court may proceed to make final orders (see Ritchie's Uniform Civil Procedure ( NSW ) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]. In an adversarial system, the re…
Kingdon v Kirk (1888) 37 ChD 141
Citation 13 (Para 1)

…court may proceed to make final orders (see Ritchie's Uniform Civil Procedure ( NSW ) at [29.7.2], referring to Stone v Smith (1887) 35 Ch D 188 and Kingdon v Kirk (1887) 37 Ch D 141; see also Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 at [64]. In an adversarial system, the responsibility for conduct of a case res…

Legislation Cited

Defamation Act 2005 (TAS) 35, 38
3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW) 15.22
2 mentions (from Para 1)
Civil Liability Act 2002 (TAS)
1 mention (from Para 1)
Defamation Act 1974 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Facer v Wolfe [2013] NSWDC 231
Hearing dates:	28 November 2013
Decision date:	28 November 2013
Before:	Gibson DCJ
Decision:	(1) The defendant, Jane Wolfe, called outside Court 13D three times at 10:28am - no appearance. (2) By reason of the fact that the defendant was not notified of the 28 November 2013 hearing date until 19 November 2013 (albeit in circumstances where no notification order was made on 23 August 2013), and has advised that she is overseas until 30 December 2013, today's hearing date is vacated (Gibson DCJ to give reasons). (3) These proceedings are to be returned to the Defamation List on Friday 6 December 2013 so that the defendant may be notified by email by the court of these orders and provided with a copy of Gibson DCJ's judgment, and a fresh hearing date obtained. (4) Note Gibson DCJ is not part heard. (5) Costs of today reserved.
Catchwords:	TORT - defamation - email by member of a body corporate management to 5 fellow members containing imputations about strata manager - defences of justification, contextual truth, honest opinion and unlikelihood of harm - defendant fails to answer a request for particulars and defence is struck out - proceedings listed for hearing as an assessment hearing in circumstances where the defendant, a litigant in person, is not present - defendant advised of hearing date the week beforehand but is overseas - hearing vacated
Legislation Cited:	Civil Liability Act 2002 (NSW) Civil Procedure Act 2005 (NSW), ss 56 - 62 and 66 Defamation Act 1974 (NSW) Defamation Act 2005 (NSW), ss 35 and 38 Uniform Civil Procedure Rules 2005 (NSW), rr 15.22 - 15.30 and 29.7
Cases Cited:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWCA 6 Attrill v Christie [2007] NSWSC 1386 Ford v Nagle [2004] NSWCA 33 French Consulting Pty Ltd v Lawson Stuart Donald [2011] NSWSC 584 Hallam v Ross [2011] QCA 274 Hickie v Perkins (Supreme Court of NSW, Levine J, 15 November 1996) Hodgkinson v. Economical Mutual Insurance Company [2003] O.J. No. 5125 (C.A.) Kingdon v Kirk (1887) 37 Ch D 141 Knapp v Hinchcliffe [2004] QSC 326 Magjarraj v Asteron Life Ltd [2009] NSWSC 1433 Martin v Bruce (2007) 6 DCLR 15 Satz v ACN 069 808 957 Pty Ltd [2010] NSWSC 365 Scott v Handley [1999] FCA 404 Stone v Smith (1887) 35 Ch D 188
Texts Cited:	Ritchie's Uniform Civil Procedure (NSW) Tobin & Sexton, Australian Defamation Law and Practice
Category:	Procedural and other rulings
Parties:	Plaintiff: Jeffrey Michael Facer Defendant: Jane Wolfe
Representation:	Plaintiff: Mr R Weaver Defendant: No appearance Plaintiff: Worthington & Reading Lawyers Defendant: No appearance
File Number(s):	2011/226458
Publication restriction:	None