Gould v Jordan

Case [2020] FCA 1191

FEDERAL COURT OF AUSTRALIA

Gould v Jordan [2020] FCA 1191

File number: NSD 1735 of 2017
Judgment of: WHITE J
Date of judgment: 19 August 2020
Catchwords:

PRACTICE AND PROCEDURE – interlocutory application for the separate hearing and determination of issues in defamation proceedings – trial of defences of jurisdictional and contextual truth under ss 28 and 29 of the Uniform Defamation Act likely to be substantial – certain matters indicating that separate hearings may not result in prolongation of the litigation – whether the Respondent has shown there should be departure from the usual course.

Held: application granted.   
Legislation:

Crimes Act 1914 (Cth) s 43(1)

Uniform Defamation Act ss 18, 25, 26, 28, 29

Federal Court Rules 2011 (Cth) rr 16.07(2), 30.01

Cases cited:

Bywater Investments Ltd v Commissioner of Taxation [2015] FCAFC 176; (2015) 236 FCR 520

Bywater Investments Ltd v Commissioner of Taxation [2016] HCA 45; (2016) 260 CLR 169

Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152

Guise v Kouvelis (1947) 74 CLR 102

Hua Wang Bank Berhad v Commissioner of Taxation [2014] FCA 1392; (2014) 100 ATR 244

Jordan, Commissioner of Taxation v Second Commissioner of Taxation [2019] FCA 1602

Robson (trustee of Bankrupt Estate of Musgrave) v WJM Investments Pty Ltd, in the matter of WJM Investments Pty Ltd [2018] FCA 2048

Spirits International BV v Federal Treasury Enterprise (FKP) Sojuzplodoimport [2011] FCAFC 69; (2011) 91 IPR 438

State of Western Australia v Galati [2017] FCA 236

Tepko Pty Ltd v Water Board [2001] HCA 19; (2001) 206 CLR 1

Thunder Studios Inc (California) v Kazal (No 8) [2018] FCA 1995

Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845

Division: General Division
Registry: New South Wales
National Practice Area: Other Federal Jurisdiction
Number of paragraphs: 33
Date of last submission/s: 11 August 2020
Date of hearing: 7 August 2020
Counsel for the Applicant: Mr K Smark SC
Solicitor for the Applicant: Mark J Ord Lawyer and Consultant
Counsel for the Respondent: Mr ATS Dawson SC with Mr RA Jedrzeczyk
Solicitor for the Respondent: Clayton Utz

ORDERS

NSD 1735 of 2017
BETWEEN:

VANDA GOULD

Applicant
AND:

CHRISTOPHER JORDAN

Respondent

ORDER MADE BY:

WHITE J

DATE OF ORDER:

19 AUGUST 2020

THE COURT ORDERS THAT:

1.Pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth), the following questions be heard and determined separately from, and prior to, all other questions arising in the proceeding:

(a)whether the Applicant was identified by the impugned statements, as pleaded at [3] of the Statement of Claim filed on 3 October 2017 (the Statement of Claim);

(b)if the Applicant was identified by the impugned statements, whether those statements were reasonably capable of conveying, and did in fact convey, the imputations pleaded at [3(a)] and [3(b)] of the Statement of Claim.

(c)whether any imputations conveyed by the impugned statements were defamatory of the Applicant;

(d)whether the Respondent has established the defence of publication of a public document under s 28 of the

Continue reading Gould v Jordan

Sign in free to access the full text

Details
AGLC
Gould v Jordan [2020] FCA 1191
Case
[2020] FCA 1191
Decision Date

CaseChat Overview and Summary

In the Federal Court of Australia, Gould v Jordan involved a defamation dispute between the Applicant, Mr Jordan, and the Respondent, Mr Gould. Mr Jordan sought an interlocutory application for the separate hearing and determination of specific issues in the defamation proceedings, arguing that the trial of certain defences under the Uniform Defamation Act would be substantial. The central legal issues before the Court were whether the separate hearings would result in a prolongation of the litigation and whether there were grounds to depart from the usual course of proceedings.

The Court examined various factors, including the complexity and significance of the separate issues, the potential for overlap in evidence, and the Applicant’s attitude towards the application. The Court found that the separate hearings were likely to be substantial and that certain matters indicated they may not lead to a prolongation of the litigation. Additionally, the Court considered Mr Gould’s stance on the application, noting his lack of opposition to the proposed separate hearings. The combination of these considerations led the Court to conclude that the case warranted a departure from the usual procedural course, thereby granting the application.

The Court made orders pursuant to r 30.01(1) of the Federal Court Rules 2011, specifying that the listed questions should be heard and determined separately from other issues in the proceeding. The Court adjourned the matter to a Case Management Hearing and reserved costs, allowing the parties to appear via video link if necessary.

Orders

Orders of the court

1. Pursuant to r 30.01(1) of the Federal Court Rules 2011 (Cth), the following questions be heard and determined separately from, and prior to, all other questions arising in the proceeding:

(a) whether the Applicant was identified by the impugned statements, as pleaded at [3] of the Statement of Claim filed on 3 October 2017 (the Statement of Claim);

(b) if the Applicant was identified by the impugned statements, whether those statements were reasonably capable of conveying, and did in fact convey, the imputations pleaded at [3(a)] and [3(b)] of the Statement of Claim.

(c) whether any imputations conveyed by the impugned statements were defamatory of the Applicant;

(d) whether the Respondent has established the defence of publication of a public document under s 28 of the Uniform Defamation Act (the UDA), as pleaded at [5(c)] of the Amended Defence filed on 15 July 2020 (the Amended Defence);

(e) whether the Respondent has established the defence of fair report of proceedings of public concern under s 29 of the UDA, as pleaded at [5(d)] of the Amended Defence;

(f) whether the Respondent has established the defence of qualified privilege (reply to attack), as pleaded at [5(e)] of the Amended Defence;

(g) if the Respondent has established the defence of publication of public documents under s 28 of the UDA, whether the Applicant has established that the impugned statements were not published honestly for the information of the public or the advancement of education, as pleaded at [2] of the Reply filed on 22 July 2020 (the Reply);

(h) if the Respondent has established the defence of fair report of proceedings of public concern under s 29 of the UDA, whether the Applicant has established that the impugned statements were not published honestly for the information of the public or the advancement of education, as pleaded at [3] of the Reply; and

(i) if the Respondent has established the defence of qualified privilege (reply to attack), whether the Applicant has established that the publication of the impugned statements was actuated by malice, as pleaded at [4] of the Reply.

2. The matter is adjourned to the Case Management Hearing at 2:15pm (ACST) on 2 September 2020, with liberty to the parties to appear by video link.

3. There be liberty to the parties to apply.

4. Costs be reserved.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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

Seventhly, the attitude of Mr Gould to Mr Jordan’s application is an important (although not decisive) consideration. Conclusion These considerations, in combination, persuade me that this is an exceptional case in which it would be an appropriate exercise of the discretion under r 30.01(1) to accede to Mr Jordan’s application. Accordingly, there will be orders to the effect proposed by him. Orders with respect to the progression of the separate matters to trial will be made at the next Case Management Hearing.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.