Fox v Channel Seven Adelaide Pty Ltd (No 2) - [2020] SASC 180

SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
FOX v CHANNEL SEVEN ADELAIDE PTY LTD & ORS (No 2)
[2020] SASC 180
Judgment of The Honourable Justice Stanley
25 September 2020
DEFAMATION - ACTIONS FOR DEFAMATION - PARTICULARS - OF STATEMENT OF DEFENCE OR PLEA - JUSTIFICATION
PROCEDURE - STATE AND TERRITORY COURTS: JURISDICTION, POWERS AND GENERALLY - INHERENT AND GENERAL STATUTORY POWERS - TO PREVENT ABUSE OF PROCESS - OTHER PARTICULAR CASES
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - OTHERWISE ABUSE OF PROCESS
There are two applications before the Court. The plaintiff has brought an application to strike out the third defence to his claim of defamation. The defendants apply for permission to amend in terms of a fourth defence.
The plaintiff was involved in a charitable foundation called Camp Gallipoli. It ran a series of events on a not-for-profit basis. The foundation entered into various service contracts with companies in which the plaintiff had an interest and there were various promotions of the events. In due course there was some controversy about them. There were articles in the national media, including broadcasts by the defendants.
The plaintiff’s claim in defamation relies on five broadcasts on the television program Today Tonight Adelaide on 25 April 2016, 9 May 2016, 13 July 2016, 27 October 2016 and 24 January 2017. The plaintiff pleads some 43 defamatory imputations arising from the broadcasts.
The defendants are intending to remedy certain issues with the pleading via the filing of the fourth defence. However, at issue was whether some of the particulars in the third defence are so remote from the principal issues in the proceedings that they should be struck out on the basis that the resources of the parties and the Court needed to determine the defences pleaded would be disproportionate to the interests at stake (the proportionality principle).
Held:
1. It is proper for the Court to have regard to the proportionality between on the one hand the time and cost incurred in proceedings and on the other hand the importance and value of the subject matter of the proceedings in determining whether a pleading should be struck out as an abuse of process.
2. The plaintiff has made a forensic decision to plead very broad imputations. In those circumstances, it must be open to the defendant to justify those broad imputations by reference to particulars that identify specific instances of conduct where the plaintiff has engaged in conduct meriting those broad imputations. To establish an abuse of process in these circumstances the plaintiff must establish that he will be denied a fair trial if the impugned particulars are not struck out.
3. Paragraph 53B of Annexure A to the third defence is struck out. Otherwise the plaintiff’s application is dismissed.
4. Permission is granted to the defendants to file and serve the fourth defence.
Supreme Court Civil Rules 2006 (SA) r 104(b); Uniform Civil Rules 2020 (SA) r 12.2(2)(d), referred to.
Jameel v…

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: [2020] SASC 180
Decision Date: 25 September 2020

CaseChat Overview and Summary

In the case of Fox v Channel Seven Adelaide Pty Ltd (No 2), the plaintiff, Mr Fox, sought to strike out parts of the defendants' defence and counter-claim on the basis that they constituted an abuse of process. The defendants, Channel Seven Adelaide, sought permission to file and serve a fourth defence. The matter was heard in the Supreme Court of South Australia. The primary legal issue before the court was whether the defendants' defence constituted an abuse of process or was otherwise objectionable to the point of being struck out.

The court considered whether the defendants' defence was an abuse of process or otherwise objectionable. The court found that the plaintiff had not established that the defence was an abuse of process. The court accepted the defendants' argument that the allegations made in the defence were relevant to the proceedings and that the court must assume that the defendants would be able to prove the truth of the allegations. The court held that the defendants were not precluded from raising the defence as it was directly related to the core proceedings. The court also found that the plaintiff had not shown that dealing with the issues would occupy an excessive amount of time.

The court granted permission for the defendants to file and serve the fourth defence as exhibited to the fourth affidavit of Peter Campbell, sworn 18 May 2020. The court also granted the plaintiff’s application to strike out paragraph 53B of Annexure A to the third defence, but otherwise dismissed the plaintiff’s strike-out application. The court ordered that the parties would be heard as to costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

I accept the defendants’ submission. The plaintiff has not established that the plea is an abuse of process. I would not strike out the plea.Conclusion I would grant permission to the defendants to file and serve the fourth defence as exhibited to the fourth affidavit of Peter Campbell, sworn 18 May 2020 and marked PAC 23. I would grant the plaintiff’s application to strike out paragraph 53B of Annexure A to the third defence, but otherwise dismiss the plaintiff’s strike-out application. I would hear the parties as to costs.

Ratio Decidendi

Legal Principle Established

Finally paragraph 53B is relied upon to justify the accounting imputation in respect of the first and fifth broadcasts. ConsiderationThe Daimler plate issue The pleading is that the plaintiff rendered an invoice for the sale of a Daimler numberplate in which GST was expressly charged. The allegation is that the plaintiff did so with the intention of not remitting the GST to the ATO and that he did not do so. The particulars are said to be relevant to the liar, fraud and misappropriation imputations. The plaintiff submits that the pleading of this issue relates to events that occurred in 2012 well before Camp Gallipoli came into existence. It derives from claims made by the plaintiff’s then trustee in bankruptcy which are rejected by the plaintiff. The plaintiff submits that his capacity even to investigate the issue is extremely limited as relevant witnesses would be difficult to trace. Nonetheless, the plaintiff submits that dealing with this issue could occupy two to three days of hearing time. The defendants submit that for the purpose of determining the strike-out application the Court must assume that they will be able to prove the truth of the allegation. Accordingly, putting in issue the facts of the allegations cannot constitute an abuse of process. They submit that there is no evidence before the Court that the hearing of this issue would take two to three days. I accept the submission of the defendants. The plaintiff has not established the plea is an abuse of process. I would not strike out the plea.A&G Developments The pleading is that the plaintiff, through an intermediary, conducted negotiations with the supplier to the one of the Camp Gallipoli events. The plaintiff charged the supplier $88,000 on the basis that the supplier would have exclusive rights to sell its beverages at the event. The allegation is that the plaintiff knew at the time that he was in no position to make such a promise and knew that the venues at which the events would occur had the right to decide which beverages would be sold at their venue. The plaintiff submits that he personally had an extremely limited involvement with A&G Developments. The person who was dealing with the supplier is now deceased. He submits that the significance of the issue is disproportionate to the core proceedings. No mention of A&G Developments was made in any of the broadcasts. He contends that the defendants are seeking to run a misleading and deceptive conduct claim in circumstances where A&G Developments has not seen fit to bring such proceedings. The defendants submit that the particulars are directly related to Camp Gallipoli. The defendants bear the onus of proving these allegations. It is irrelevant whether A&G Developments sued. There is no proper basis upon which the defendants should be precluded from raising this defence as an abuse of process. I accept the defendants’ submission. The plaintiff has not established the plea is an abuse of process. I would not strike out the plea.The swag issue