Gaynor v Burns - [2015] NSWDC 194

District Court

New South Wales

Medium Neutral Citation: Gaynor v Burns [2015] NSWDC 194
Hearing dates: 03 September 2015
Date of orders: 03 September 2015
Decision date: 03 September 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen).
(2) Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days.
(3) Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial.
(4) Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am.
(5) The defendant is to pay the costs thrown away by reason of the amendments to the defence.
(6) The defendant is to pay the plaintiff’s costs of today.

Catchwords: TORT - defamation - defences - application to strike out defence of contextual justification based solely on the plaintiff's imputations - defendant concedes defence unavailable in that form - whether defence should be struck out - defence of qualified privilege fails to identify whether defence pleaded pursuant to s 30, at common law, or both - defence struck out with liberty to replead
Legislation Cited: Defamation Act 2005 (NSW), ss 25, 26 and 30
Cases Cited: Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) [2015] NSWDC 23
Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369
Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode (2011) 81 NSWLR 157
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991
Category: Procedural and other rulings
Parties: Plaintiff: Bernard Gaynor
Defendant: Garry Burns
Representation:
Counsel:
Plaintiff: Mr R Rasmussen
Defendant: Ms M Curry
Solicitors:
Plaintiff: Robert Balzola & Associates
Defendant: James Leaver Lawyer

File Number(s): 2014/269572
Publication restriction: None

Judgment

These are reasons for the striking out of the defence of contextual justification pleaded in paragraph 7 of the Further Amended Defence and for requiring the defendant to file a First Further Amended Defence clarifying whether the defence of qualified privilege is pleaded solely at common law and/or s 30 Defamation Act 2005 (NSW).
The plaintiff initially commenced proceedings by summons filed on 12 September 2014. The proceedings were case managed by the Judicial Registrar, during which time the plaintiff filed a statement of claim on 23 April 2015. The defendant, who appeared in person, filed a series of defences claiming “public interest” and “the public’s right to know”, defences unknown to law.
Following transfer to the Defamation List on 5 June 2015, the defendant filed an “Amended Defence” on 16 June 2015 which added a defence of contextual justification based on the plaintiff’s imputations, which is impermissible (Fairfax Media Publications Pty Ltd v Kermode; Besser…

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: [2015] NSWDC 194
Decision Date: 03 September 2015

CaseChat Overview and Summary

The parties to the case were Gaynor, the plaintiff, and Burns, the defendant. The dispute centred around an alleged defamation and the defences raised by Burns. The case was heard in the Supreme Court of New South Wales. The crux of the matter was whether specific defences pleaded by Burns should be struck out, particularly the defence of contextual justification and the defence of qualified privilege. The plaintiff argued that these defences were misconceived and should be dismissed, while Burns contended that they were valid and should be allowed to proceed.

The legal issues that the court had to decide revolved around the validity of Burns' defences. The plaintiff challenged the defence of contextual justification, arguing it was based solely on the plaintiff's own imputations and thus not applicable. Burns conceded that the defence was not available in the form pleaded. The court also had to determine whether the defence of qualified privilege was correctly pleaded under the relevant statute or at common law. The plaintiff contended that the defence was not properly identified and therefore should be struck out.

The court found that paragraph 7 of the defence, which pertained to contextual justification, was indeed struck out as it was misconceived. The court noted that Burns had conceded this point, and it was not necessary to delve into further reasons. Regarding the defence of qualified privilege, the court observed that it was not clear whether it was pleaded under section 30 of the Defamation Act 2005 (NSW) or at common law, leading to ambiguity. Consequently, the court decided to strike out this defence as well but granted leave for Burns to replead it with the necessary clarifications. The court also ordered that any argument about the capacity to defame should be raised at the next hearing or risk being excluded from trial. The matter was set for further discussion on the imputations on a specified date.

In its orders, the court struck out the defence of contextual justification and the ambiguous qualified privilege defence, allowing Burns to amend and resubmit the defences within a set timeframe. The court mandated that any issues regarding the capacity to defame must be raised at the next hearing. Additionally, the court scheduled a hearing to address the imputations and directed that Burns would bear the costs associated with the amendments and the current proceedings.

Orders

Orders of the court

(1) Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen).

(2) Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days.

(3) Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial.

(4) Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am.

(5) The defendant is to pay the costs thrown away by reason of the amendments to the defence.

(6) The defendant is to pay the plaintiff’s costs of today.

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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Gaynor v Burns [2015] NSWDC 194
Hearing dates:	03 September 2015
Date of orders:	03 September 2015
Decision date:	03 September 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Note that paragraph 7 of the defence is struck out (Judge Gibson to give reasons at the suggestion of Mr Rasmussen). (2) Grant leave to the defendant to file and serve an Amended Defence identifying the qualified privilege defence and, if s 30 Defamation Act 2005 (NSW) is pleaded, setting out particulars of reasonableness, in 13 days. (3) Any capacity argument is to be raised when the matter is next listed, failing which the court will direct that the imputations, as currently pleaded, will go to trial. (4) Matter listed for an imputation argument on Thursday 17 September 2015 at 9:00am. (5) The defendant is to pay the costs thrown away by reason of the amendments to the defence. (6) The defendant is to pay the plaintiff’s costs of today.
Catchwords:	TORT - defamation - defences - application to strike out defence of contextual justification based solely on the plaintiff's imputations - defendant concedes defence unavailable in that form - whether defence should be struck out - defence of qualified privilege fails to identify whether defence pleaded pursuant to s 30, at common law, or both - defence struck out with liberty to replead
Legislation Cited:	Defamation Act 2005 (NSW), ss 25, 26 and 30
Cases Cited:	Balzola v Federal Capital Press of Australia Pty Ltd (ACN 008 394 063) [2015] NSWDC 23 Born Brands Pty Ltd v Nine Network Australia Pty Ltd [2014] NSWCA 369 Fairfax Media Publications Pty Ltd v Kermode; Besser v Kermode (2011) 81 NSWLR 157 Hanrahan v Ainsworth (1990) 22 NSWLR 73 Rose v Allen & Unwin Pty Ltd [2015] NSWSC 991
Category:	Procedural and other rulings
Parties:	Plaintiff: Bernard Gaynor Defendant: Garry Burns
Representation:	Counsel: Plaintiff: Mr R Rasmussen Defendant: Ms M Curry Solicitors: Plaintiff: Robert Balzola & Associates Defendant: James Leaver Lawyer
File Number(s):	2014/269572
Publication restriction:	None