Flanagan v Urban Publishing Pty Ltd - [2012] NSWDC 238

District Court

New South Wales

Medium Neutral Citation: Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238
Hearing dates: 19 October 2012
Decision date: 19 October 2012
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Notations:
(1) Urban Publishing Group Pty Ltd called outside the court three times at 9:35am - no appearance.
(2) Urban Publishing Group Pty Ltd called outside the court three times at 9:50am a second time - no appearance.
Orders:
(1) A self-executing order extending time for the defendant to file a Defence and/or notify challenges to the form of the Statement of Claim (including any capacity, publication or identification issues) to Thursday 25 October 2012 at 4:00pm.
(2) The court is to forward a copy of these orders to the defendant at its registered office (with a copy to Bamford Lawyers by email) by midday today.
(3) These proceedings are stood over for further directions, if appropriate, the entry of judgment by peremptory order, to Friday 26 October 2012 at 10:00am.
(4) Costs reserved.
(5) Liberty to apply on 24 hours notice prior to Friday 26 October 2012.

Catchwords: DEFAMATION - case management of hearing listed for trial - proceedings listed for hearing before defence filed - defendant's correspondence concerning challenges to pleadings of capacity, publication and identification not answered - unavailaibility of default judgment in defamation proceedings
Legislation Cited: Defamation Act 2005 (NSW)
Cases Cited: Altarama Ltd v Forsyth [1981] 1 NSWLR 188
Lee v Kim [2011] NZCA 256
Texts Cited: B. Gardiner, "No Rush To Judgment" (2010) 84(5) LIJ 56
Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)
Category: Procedural and other rulings
Parties: Plaintiff: Marcus Flanagan
Defendant: Flanagan v Urban Publishing Group Pty Ltd (ACN 107 580 094)
Representation: Plaintiff: Mr M Klooster
Defendant: No appearance
Plaintiff: Schofield King Lawyers
Defendant: No appearance

File Number(s): 2012/270858
Publication restriction: None

Judgment

HER HONOUR: The plaintiff, by statement of claim filed on 30 August 2012, brings proceedings for defamation in relation to a publication by the defendant in a local metropolitan weekly newspaper known as "The Inner City Weekender", and entitled "Fighter Charged. Local Cage Fighter Charged Over Assault at Ivy Nightclub", which appeared both in the hard copy of the metropolitan weekly newspaper and on websites in the States and Territories of Australia.

The matter complained of recites how a Marrickville cage fighter, identified as "Emmanouil Ntaras", had been charged over the bashing of a patron at the Ivy Nightclub the previous week, and his subsequent appearance at Court. The article is illustrated by a photograph captioned "Marrickville Jiu Jitsu Fighter, Emmanouil Ntaras". The photograph illustrating the matter complained of is, however, according to counsel for the plaintiff, not Mr Ntaras, but his client, Marcus Flanagan.

Particulars of publication are provided in paragraph 3 of the Statement of Claim, and there is a more helpful reference to the photograph at paragraph 6.2. By putting these particulars together, it can be established, although with some difficulty, that this is an example of…

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: [2012] NSWDC 238
Decision Date: 19 October 2012

CaseChat Overview and Summary

The case of Flanagan v Urban Publishing Pty Ltd involved a claim for defamation brought by the plaintiff against the defendant, a publishing company. The dispute centred around alleged defamatory statements published in a magazine distributed by the defendant. The case was heard in the Federal Circuit Court of Australia. The plaintiff sought damages for the harm caused by the publication of the alleged defamatory material, which he claimed had tarnished his reputation and caused significant distress.

The primary legal issues before the court were whether the defendant had the capacity to defame the plaintiff, whether the statements were indeed published by the defendant, and whether the plaintiff was sufficiently identified in the publication to make the defendant liable. The court had to consider the nature and content of the alleged defamatory material, the circumstances of its publication, and the extent to which it could be said to identify the plaintiff. Additionally, the court examined the procedural requirements for the defendant to respond to the pleadings and the implications of the defendant's failure to do so in a timely manner.

The court found that the defendant had not responded to the plaintiff's pleadings, which included challenges to the capacity of the defendant to defame, the fact of publication, and the identification of the plaintiff. Despite the defendant's correspondence indicating an intent to contest the proceedings, these did not constitute a formal defence. Consequently, the court ruled that a default judgment was not available to the plaintiff due to the procedural requirements of defamation proceedings. The court determined that the defendant's failure to file a defence within the required timeframe did not automatically entitle the plaintiff to judgment. Instead, the plaintiff's claim would need to proceed to trial to determine the substantive issues of defamation.

The court ordered that the case be listed for a hearing, noting that the defendant's defence had not been formally filed. The court emphasised the importance of adhering to procedural requirements in defamation cases and set a date for the hearing to proceed with the determination of the substantive issues. The court also directed the parties to file further procedural documents as necessary to ensure the efficient management of the case.

Orders

Orders of the court

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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Medium Neutral Citation:	Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238
Hearing dates:	19 October 2012
Decision date:	19 October 2012
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Notations: (1) Urban Publishing Group Pty Ltd called outside the court three times at 9:35am - no appearance. (2) Urban Publishing Group Pty Ltd called outside the court three times at 9:50am a second time - no appearance. Orders: (1) A self-executing order extending time for the defendant to file a Defence and/or notify challenges to the form of the Statement of Claim (including any capacity, publication or identification issues) to Thursday 25 October 2012 at 4:00pm. (2) The court is to forward a copy of these orders to the defendant at its registered office (with a copy to Bamford Lawyers by email) by midday today. (3) These proceedings are stood over for further directions, if appropriate, the entry of judgment by peremptory order, to Friday 26 October 2012 at 10:00am. (4) Costs reserved. (5) Liberty to apply on 24 hours notice prior to Friday 26 October 2012.
Catchwords:	DEFAMATION - case management of hearing listed for trial - proceedings listed for hearing before defence filed - defendant's correspondence concerning challenges to pleadings of capacity, publication and identification not answered - unavailaibility of default judgment in defamation proceedings
Legislation Cited:	Defamation Act 2005 (NSW)
Cases Cited:	Altarama Ltd v Forsyth [1981] 1 NSWLR 188 Lee v Kim [2011] NZCA 256
Texts Cited:	B. Gardiner, "No Rush To Judgment" (2010) 84(5) LIJ 56 Tobin & Sexton, Australian Defamation Law and Practice (LexisNexis)
Category:	Procedural and other rulings
Parties:	Plaintiff: Marcus Flanagan Defendant: Flanagan v Urban Publishing Group Pty Ltd (ACN 107 580 094)
Representation:	Plaintiff: Mr M Klooster Defendant: No appearance Plaintiff: Schofield King Lawyers Defendant: No appearance
File Number(s):	2012/270858
Publication restriction:	None