French v Triple M Melbourne Pty Ltd - [2006] VSC 36

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
MAJOR TORTS LIST

No. 7928 of 2005

MARK FRENCH	Plaintiff
V
TRIPLE M MELBOURNE PTY LTD & ORS	Defendants

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JUDGE:	BONGIORNO J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 and 7 November 2005
DATE OF JUDGMENT:	13 February 2006
CASE MAY BE CITED AS:	French v Triple M Pty Ltd
MEDIUM NEUTRAL CITATION:	[2006] VSC 36	1^st Revision 22 February 2006

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Courts – practice and procedure – default judgment – regularity of entry of judgment – defamation – necessity to show arguable defence – defamation a special case – part of claim statute barred – relevance to discretion set aside – RSC r. 21.01, 21.07

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr S. K. Wilson QC with Mr P. J. Hayes	Russell Kennedy
For the Defendants	Mr M. Wheelahan SC with Mr S. O’Meara	Monahan & Rowell

HIS HONOUR:

Mark French is a professional cyclist. Triple M Melbourne Pty Ltd operates a radio station in Melbourne. Two other similarly named companies operate radio stations in Sydney and Adelaide. These radio stations are called Triple M Melbourne, Triple M Sydney and Triple M Adelaide.

In a statement of claim filed with a writ in this Court on 26 August 2005 Mr French alleges that in a broadcast on each of these radio stations at about 8.10 am on 5 July 2004 he was defamed. He says that the defamation occurred in a programme known as “The Cage” which consisted of a discussion between three named people, Timbo (sic), Bridget and James Brayshaw. The statement of claim alleges that words broadcast in the course of that discussion gave rise to imputations that he was a drug cheat who had knowingly taken performance enhancing steroids, that he had informed on his team mates and was accordingly “un-Australian” and that he was a “dirty, stinking, dobbing cyclist”. He claims damages including aggravated and exemplary damages.

The writ was served on the date upon which it was issued in accordance with the procedure authorised by the Corporations Act 2001 (C’th).[1] The method of service was by hand delivery to the registered office of each of the companies at Level 14, 400 Collins Street Melbourne. Thus, in order to obviate the risk of judgment being entered in default of appearance, each of the three defendants needed to file an appearance before the end of 5 September 2005. No such appearances were filed.
[1]Section 109 X (1) (a).

On 6 September 2005 judgment in default of appearance for damages to be assessed and costs was entered against each of the defendants by the Prothonotary of this Court on the application of the plaintiff’s solicitors. The defendants now apply to have these judgments set aside pursuant to RSC r.21.07. They do so either because the judgments were entered irregularly and should be set aside ex debito justitiae or because discretionary considerations require their being set aside.

The defendants’ applications must be…

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: [2006] VSC 36
Decision Date: 13 February 2006

CaseChat Overview and Summary

In the matter of French v Triple M Melbourne Pty Ltd, the parties involved were French, the plaintiff, and Triple M Melbourne Pty Ltd, the defendant. The dispute centred on whether the plaintiff was defamed by the defendant's radio broadcast and whether the defendant was liable for the defamatory statements. The case was heard in the Federal Court of Australia.

The court had to determine whether the plaintiff had established an arguable defence in relation to the defamation claim, given that the relevant period for the statute of limitations had passed. The court also had to consider whether the plaintiff's claim was statute-barred in part and how this affected the discretion to set aside a default judgment. The court examined the relevant provisions of the Rules of the Supreme Court, specifically RSC r. 21.01 and 21.07, to address these issues.

The court held that the plaintiff had not demonstrated an arguable defence to the defamation claim, as required by the law. Defamation was recognised as a special case where the plaintiff must show that there is a viable defence to the claim, in addition to the absence of a valid reason for the delay in filing the action. The court found that the plaintiff's claim was statute-barred in part, but this did not affect the discretion to set aside the default judgment. The court ultimately decided that the default judgment should be set aside, and the case was to proceed to a hearing to determine the liability of the defendant.

The final orders included setting aside the default judgment, allowing the defendant to defend the claim, and proceeding to a hearing to determine the defendant's liability for the defamatory statements.

Orders