Graham v Powell - [2013] NSWSC 1266

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Graham v Powell [2013] NSWSC 1266
Hearing dates: 2 September 2013
Decision date: 02 September 2013
Before: McCallum J
Decision:
Defendant's application to have proceedings dismissed, struck out or stayed dismissed; defence struck out with leave to replead.

Catchwords: DEFAMATION - whether proceedings an abuse of process - where plaintiff the subject of referral to ICAC in respect of the same matter - defences - absolute privilege - whether defence so plainly available as to warrant summary dismissal of plaintiff's claim - whether defence adequately pleaded
Legislation Cited: Defamation Act 2005, ss 25, 27(2)(d)
Independent Commission Against Corruption Act 1988
Category: Interlocutory applications
Parties: Richard David Graham (plaintiff)
Allan William Powell (defendant)
Representation: Counsel:
M Richardson (plaintiff)
Defendant self-represented
Solicitors:
Thomsons Lawyers (plaintiff)

File Number(s): 2013/182130
Publication restriction: None

Judgment - ex tempore

HER HONOUR: These are proceedings for defamation arising out of the posting of a series of items on web sites allegedly owned or maintained by the defendant, Mr Allan Powell. The plaintiff is Mr Richard Graham, a councillor of Palerang Council.

There are two applications before the Court. The first in time is the defendant's application brought by notice of motion filed 1 August 2013 seeking a series of orders. It is convenient to determine that application first.

Orders 1 and 2 sought by the defendant are:

1 That the Court strike out the plaintiff's action as an abuse of process given the matters disclosed by the defendant's affidavit dated the 11th day of July 2013 relating to the plaintiff's deceptive failure to disclose to the court in its statement of claim the report of its conduct in the City to Soil project to the Independent Commission Against Corruption for acts referred to in its statement of claim.

2 That the court stay the plaintiff's action until such time as the Independent Commission Against Corruption makes a determination on those matters concerning the plaintiff as a Palerang Shire Council Councillor as reported to ICAC by the general managers of Goulburn Mulwaree Council and Queanbeyan Council and as referred to in the defendant's affidavit.

The basis on which the defendant contends that the plaintiff's action is an abuse of process is that much of the material published in the matters complained of is very similar to material contained in four reports referred to the Independent Commission Against Corruption by the two councils. I know of no authority to say that a plaintiff cannot maintain an action for defamation arising out of allegations that may at the same time be subject of an inquiry by that Commission. Indeed, perhaps unsurprisingly, it is not an uncommon incident of proceedings in this list. I am not persuaded that the stay sought by the defendant should be granted or that the proceedings are liable to be struck out on that basis.

Separately, the defendant made submissions this afternoon evidently addressed to persuading the Court that the proceedings should be dismissed on the…

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 Graham v Powell

Details

AGLC: Graham v Powell [2013] NSWSC 1266
Case: [2013] NSWSC 1266
Decision Date: 02 September 2013

CaseChat Overview and Summary

In the case of Graham v Powell, the plaintiff, Mr Graham, brought a defamation claim against the defendant, Mr Powell, who had made statements about the plaintiff to a third party. The dispute centred around whether the proceedings constituted an abuse of process, given that the plaintiff had already been referred to the Independent Commission Against Corruption (ICAC) concerning the same matter. The legal issues before the court included whether the defence of absolute privilege was so plainly available that it warranted summary dismissal of the plaintiff's claim and whether the defence was adequately pleaded.

The court examined whether the proceedings were an abuse of process, considering the existing referral to ICAC. It held that the mere fact of an ICAC referral did not automatically render the defamation proceedings an abuse of process. The court further analysed whether the defence of absolute privilege was plainly available, noting that such a defence could be raised in defamation cases where statements are made in a privileged context, such as in parliamentary proceedings or judicial processes. The court determined that the defence of absolute privilege was not so plainly available as to warrant summary dismissal. The court also considered whether the defence was adequately pleaded. It found that the defence was not adequately pleaded because the defendant had not sufficiently outlined the circumstances that would establish the privilege.

Ultimately, the court rejected the defendant's application for summary dismissal and found that the defence of absolute privilege was not adequately pleaded. The court's decision allowed the defamation claim to proceed to a full hearing, ensuring that all relevant facts and arguments could be thoroughly examined.

Orders