Foley v Radford - [2006] NSWDC 56

CITATION: Foley v Radford [2006] NSWDC 56
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 21 September 2006

JUDGMENT DATE:
20 October 2006

JUDGMENT OF: Gibson DCJ

DECISION: (1)Pursuant to s.7A Defamation Act 1974, imputations 4(a)-(f), 7(a)-(e) and 10(a)-(g) are conveyed and defamatory.; (2)Defendant's application for proceedings to be struck out as an abuse of process are dismissed.; (3)Defendant to pay plaintiff's costs.; (4)The defendant is to file a Defence (including full particulars of any defence of truth) in 28 days.; (5)Matter stood over for further directions, including a further Timetable, to Monday, 4 December 2006.

CATCHWORDS: Tort - Defamation - s.7A trial - abuse of process - application to dismiss defamation proceedings as abuse of process

LEGISLATION CITED: Defamation Act 1974.

CASES CITED: Ford v Nagle & Ors [2004] NSWCA 33;
Clyne v New South Wales Bar Association (1960) 104 CLR 186;
Flower & Hart v White Ind (Qld) Pty Limited (1999) 87 FCR 134;
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125
Goldsmith v Sperrings Limited [1977] 2 All ER 566;
Grovit v Doctor [1997] 1 WLR 640;
Packer v Meagher [1984] 3 NSWLR 486;

PARTIES: Michael David Foley (Plaintiff)
David Gregory Radford (Defendant)

FILE NUMBER(S): 636/04

COUNSEL: M Foley (Plaintiff)
D Radford (Defendant)

SOLICITORS: Foleys Solicitors (Plaintiff)
D Radford (Defendant)

JUDGMENT

1. The plaintiff, a solicitor, brings proceedings against the defendant, a litigant who appeared in proceedings where the plaintiff (Mr Foley) acted for the other side, concerning the following publications.

(i) The first matter complained of

2. On 4 February 2002 the defendant sent a letter to Ms P.J. Staunton AM, who was then the Chief Magistrate of the Local Court. The plaintiff pleads that the matter complained of conveyed the following imputations:

(a) The plaintiff abused the process of the Court.

(b) The plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.

(d) The plaintiff lied to a judicial officer.

(e) The plaintiff was deceitful.

(f) The plaintiff conducted himself unethically in his practise of law.

(g) The plaintiff unduly delayed and frustrated the efficient administration of justice.

(h) The plaintiff abused the trust reposed in members of the legal profession by judicial officers.

(ii) The second matter complained of

3. On 29 January 2002 the defendant sent a letter to Mr Brook Burke, who was a solicitor at Bartercard Legal Services, which the plaintiff pleads conveyed the following imputations:

(a) The plaintiff unduly delayed and frustrated the efficient administration of justice.

(b) The plaintiff lied to a judicial officer.

(c) The plaintiff was dishonest in his dealings with legal practitioners and unrepresented litigants.

(d) The plaintiff was a dishonest person generally.

(e) The plaintiff is not to be believed.

(iii) The third matter complained of

4. On 18 September 2002 the defendant published a letter to Ms…

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 Foley v Radford

Details

AGLC: Foley v Radford [2006] NSWDC 56
Case: [2006] NSWDC 56
Decision Date: 20 October 2006

CaseChat Overview and Summary

The case of Foley v Radford involved a defamation claim initiated by the plaintiff against the defendant. The dispute centred on certain statements made by the defendant that the plaintiff alleged were defamatory. The matter was heard in the Supreme Court of Queensland. The defendant sought to have the defamation proceedings dismissed, arguing that they constituted an abuse of process. This application hinged on the argument that the proceedings were not only vexatious but also oppressive or an abuse of the court's process.

The court was tasked with determining whether the imputations made by the defendant were indeed defamatory as claimed by the plaintiff. Additionally, the court had to decide if the defendant's application to dismiss the proceedings constituted an abuse of process under the Defamation Act 1974. The court examined the nature and extent of the imputations and whether they conveyed defamatory meanings, as well as whether the defendant's application was frivolous or brought in bad faith.

In its decision, the court found that certain imputations were indeed defamatory, confirming the plaintiff's assertions. The court held that the defendant's application to dismiss the proceedings was not an abuse of process. The court rejected the defendant's argument and dismissed the application. The plaintiff was awarded costs, and the defendant was ordered to file a defence within 28 days. The case was then stood over for further directions, with a new timetable set for 4 December 2006.

Orders

Orders of the court

(1)Pursuant to s.7A Defamation Act 1974, imputations 4(a)-(f), 7(a)-(e) and 10(a)-(g) are conveyed and defamatory.; (2)Defendant's application for proceedings to be struck out as an abuse of process are dismissed.; (3)Defendant to pay plaintiff's costs.; (4)The defendant is to file a Defence (including full particulars of any defence of truth) in 28 days.; (5)Matter stood over for further directions, including a further Timetable, to Monday, 4 December 2006.

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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CITATION:	Foley v Radford [2006] NSWDC 56 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	21 September 2006
JUDGMENT DATE:	20 October 2006
JUDGMENT OF:	Gibson DCJ
DECISION:	(1)Pursuant to s.7A Defamation Act 1974, imputations 4(a)-(f), 7(a)-(e) and 10(a)-(g) are conveyed and defamatory.; (2)Defendant's application for proceedings to be struck out as an abuse of process are dismissed.; (3)Defendant to pay plaintiff's costs.; (4)The defendant is to file a Defence (including full particulars of any defence of truth) in 28 days.; (5)Matter stood over for further directions, including a further Timetable, to Monday, 4 December 2006.
CATCHWORDS:	Tort - Defamation - s.7A trial - abuse of process - application to dismiss defamation proceedings as abuse of process
LEGISLATION CITED:	Defamation Act 1974.
CASES CITED:	Ford v Nagle & Ors [2004] NSWCA 33; Clyne v New South Wales Bar Association (1960) 104 CLR 186; Flower & Hart v White Ind (Qld) Pty Limited (1999) 87 FCR 134; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] 112 CLR 125 Goldsmith v Sperrings Limited [1977] 2 All ER 566; Grovit v Doctor [1997] 1 WLR 640; Packer v Meagher [1984] 3 NSWLR 486;
PARTIES:	Michael David Foley (Plaintiff) David Gregory Radford (Defendant)
FILE NUMBER(S):	636/04
COUNSEL:	M Foley (Plaintiff) D Radford (Defendant)
SOLICITORS:	Foleys Solicitors (Plaintiff) D Radford (Defendant)