Farrow v Nationwide News Pty Ltd - [2017] NSWCA 246

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Hearing dates: 13 September 2017
Date of orders: 13 September 2017
Decision date: 28 September 2017
Before: Basten JA at [1]
Sackville AJA at [6]
McCallum J at [12]
Decision:
1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW), grant the respondent leave to appear and be represented in this proceeding.
2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017.
3. Order that the applicant pay the respondent’s costs in this Court.

Catchwords:
PRISONERS – civil proceedings – application by prisoner for leave to institute proceedings for defamation in the District Court – appeal against judge’s refusal of leave – statement of claim including true imputations and imputations relating to findings and evidence at proceedings on sentence – whether proceedings are an abuse of process
DEFAMATION – imputations – whether the pleading of incontrovertibly true imputations by a plaintiff amounts to an abuse of process
Legislation Cited: Criminal Code Act 1995 (Cth), s 307.2
Defamation Act 2005 (NSW), s 42
Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 6(2), 7
Cases Cited: Application of Potier [2012] NSWCA 222
Bleyer v Google (2014) 88 NSWLR 670; [2014] NSWSC 897
Farrow v Nationwide News Pty Ltd [2017] NSWDC 28
Plato Films Ltd v Speidel [1961] AC 1090
Category: Principal judgment
Parties: Simone Farrow (applicant)
Nationwide News Pty Ltd (respondent)
Representation:
Counsel:
C Evatt, R Rasmussen (applicant)
ATS Dawson SC, C Amato (respondent)
Solicitors:
Sanford Legal (applicant)
News Limited (respondent)

File Number(s): 2017/79891
Decision under appeal

Court or tribunal:

District Court NSW

Jurisdiction:

Civil

Date of Decision:

27 February 2017

Before:

Gibson DCJ

Judgment

BASTEN JA: I agree with the reasons given by McCallum J for refusing the applicant leave to appeal against the judgment of the District Court, which in turn refused her leave to commence proceedings against the respondent.
As it is not necessary to go further, the following observations are intended to emphasise the limited basis upon which the matter has been determined.
First, in my view the requirement for an applicant under the Felons (Civil Proceedings) Act 1981 (NSW) to establish a “prima facie case” means, in a proceeding seeking damages for defamation, a prima facie case of entitlement to non-trivial damages.
Secondly, on an application for leave to commence proceedings, the Court should have regard to the requirements of Pt 6 of the Civil Procedure Act 2005 (NSW), and the overriding purpose of the Act and rules in their application to civil proceedings. The grant of leave is an exercise in “the practice and procedure of the court”, for the purposes of s 60. The requirement that “the cost to the parties is proportionate to the importance and complexity of the subject matter in…

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: [2017] NSWCA 246
Decision Date: 28 September 2017

CaseChat Overview and Summary

The applicant, a prisoner, sought leave to appeal to the Court of Appeal of New South Wales against a District Court judge's refusal to grant him leave to institute defamation proceedings against the respondent, Nationwide News Pty Ltd. The prisoner's statement of claim alleged defamatory imputations arising from an article published by the respondent, which included imputations relating to findings and evidence presented during sentencing proceedings.

The central legal issues before the Court of Appeal were whether the prisoner's proposed defamation proceedings constituted an abuse of process, particularly in light of the inclusion of incontrovertibly true imputations within the statement of claim, and whether the prisoner should be granted leave to appeal the District Court's decision.

The Court of Appeal considered the principles governing abuse of process, noting that while a plaintiff is generally entitled to plead true imputations, the context and purpose of such pleading within the overall claim are relevant. The Court found that the prisoner's proposed proceedings, as framed, were likely to be an abuse of process. This conclusion was informed by the nature of the alleged imputations and the prisoner's status as a convicted person seeking to litigate matters already considered in criminal proceedings.

Consequently, the Court of Appeal granted the respondent leave to appear and be represented, but refused the applicant leave to appeal the District Court's judgments and orders. The applicant was ordered to pay the respondent's costs.

Orders

Orders of the court

1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW), grant the respondent leave to appear and be represented in this proceeding.

2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017.

3. Order that the applicant pay the respondent’s costs in this Court.

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:	Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Hearing dates:	13 September 2017
Date of orders:	13 September 2017
Decision date:	28 September 2017
Before:	Basten JA at [1] Sackville AJA at [6] McCallum J at [12]
Decision:	1. Pursuant to s 7 of the Felons (Civil Proceedings) Act 1981 (NSW), grant the respondent leave to appear and be represented in this proceeding. 2. Pursuant to s 6(2) of the Felons (Civil Proceedings) Act 1981 (NSW) refuse the applicant leave to appeal from the judgments and orders made in the District Court on 27 February 2017 and 2 March 2017. 3. Order that the applicant pay the respondent’s costs in this Court.
Catchwords:	PRISONERS – civil proceedings – application by prisoner for leave to institute proceedings for defamation in the District Court – appeal against judge’s refusal of leave – statement of claim including true imputations and imputations relating to findings and evidence at proceedings on sentence – whether proceedings are an abuse of process DEFAMATION – imputations – whether the pleading of incontrovertibly true imputations by a plaintiff amounts to an abuse of process
Legislation Cited:	Criminal Code Act 1995 (Cth), s 307.2 Defamation Act 2005 (NSW), s 42 Felons (Civil Proceedings) Act 1981 (NSW), ss 4, 5, 6(2), 7
Cases Cited:	Application of Potier [2012] NSWCA 222 Bleyer v Google (2014) 88 NSWLR 670; [2014] NSWSC 897 Farrow v Nationwide News Pty Ltd [2017] NSWDC 28 Plato Films Ltd v Speidel [1961] AC 1090
Category:	Principal judgment
Parties:	Simone Farrow (applicant) Nationwide News Pty Ltd (respondent)
Representation:	Counsel: C Evatt, R Rasmussen (applicant) ATS Dawson SC, C Amato (respondent) Solicitors: Sanford Legal (applicant) News Limited (respondent)
File Number(s):	2017/79891
Decision under appeal	Court or tribunal: District Court NSW Jurisdiction: Civil Date of Decision: 27 February 2017 Before: Gibson DCJ