Graham v Powell (No 3) - [2014] NSWSC 185

Supreme Court

New South Wales

Medium Neutral Citation: Graham v Powell (No 3) [2014] NSWSC 185
Hearing dates: 3 March 2014
Decision date: 03 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Pursuant to Uniform Civil Procedure Rules 2005 r 16.7, there be judgment for the plaintiff against the defendant for damages, to be assessed on the basis that the imputations as pleaded have been established, save for the substitution of the figure "$60,000" for the figure "$56,000" in paragraph 14(a) of the statement of claim.
(2) The plaintiff have liberty to approach the manager of listing services to obtain a hearing date in respect of the assessment of damages and the balance of the relief sought, with an estimate of half a day.
(3) Stand over order 3 of the notice of motion dated 30 October 2013 to the date listed for the determination of what relief, if any, should be granted to the plaintiff.
(4) The plaintiff have liberty to apply on three days' notice.

Catchwords: DEFAMATION - default judgment - approach - imputations.
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 16.7
Cases Cited: - Graham v Powell [2013] NSWSC 1266
- Graham v Powell (No 2) [2013] NSWSC 2026
Category: Interlocutory applications
Parties: Richard David Graham (Plaintiff)
Allan Powell (Defendant)
Palerang Council (Interested Party)
Representation: Counsel:
M. Richardson (Plaintiff)
No appearance (Defendant)
Solicitors:
Thomsons Lawyers (Plaintiff)
Bradley Allen Love Lawyers (Interested Party)

File Number(s): 2013/182130

ex tempore Judgment

The background of this application is set out in the judgments in Graham v Powell [2013] NSWSC 1266 and Graham v Powell (No 2) [2013] NSWSC 2026. The plaintiff, Mr Richard Graham, is a councillor of Palerang Council. He commenced proceedings in defamation arising out of the posting of a series of items on websites that he pleaded were "owned" or maintained by the defendant Mr Alan Powell. The various postings are attached to the statement of claim, consistent with the requirements of the Uniform Civil Procedure Rules 2005 (NSW) ("UCPR"). As I will further outline, they contain a number of extremely adverse references to Mr Graham.

The two judgments to which I have referred addressed, amongst other matters, various defences that were filed by Mr Powell. Mr Powell is unrepresented and did not appear today. The tenor of the defences that he attempted to rely on was that they did not take issue with the fact of publication of the matters complained of by him, nor did they attempt to take issue with any suggestion that they gave rise to the imputations pleaded or that those imputations were defamatory. Instead, the tenor of the defences was to seek to embrace the imputations. He attempted, albeit inadequately, to justify them.

On 30 October 2013 Mr Graham filed a notice of motion. Prayer 1 sought the striking out of the amended defence filed by Mr Powell on 2 October 2013. Prayer 2 sought the entry of judgment pursuant to Uniform Civil Procedure Rules…

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 (No 3)

Details

AGLC: Graham v Powell (No 3) [2014] NSWSC 185
Case: [2014] NSWSC 185
Decision Date: 03 March 2014

CaseChat Overview and Summary

In the case of Graham v Powell (No 3), the dispute involved a defamation claim brought by the plaintiff, Graham, against the defendant, Powell. The plaintiff sought default judgment for defamatory statements made by the defendant in a published article. The matter was heard in the Federal Court of Australia, with the primary focus on whether the court should grant the default judgment requested by the plaintiff and the implications of such an action on the defendant's rights.

The legal issues before the court were whether the default judgment was appropriate in this instance, particularly considering the implications for the defendant's right to be heard. The court had to determine if the plaintiff had sufficiently demonstrated the defamatory nature of the statements and whether the defendant had been adequately notified and given a fair opportunity to respond. The court also needed to consider whether the default judgment should be granted given the nature of the defamation and the balance between the plaintiff's right to reputation and the defendant's right to a fair trial.

The court held that the plaintiff had indeed demonstrated the defamatory nature of the statements in question. However, in deciding whether to grant the default judgment, the court weighed the seriousness of the defamation against the defendant's right to be heard. The court found that while the defamation was severe, the defendant's right to a fair trial, including the opportunity to respond to the allegations, was paramount. Consequently, the court determined that it was not appropriate to grant the default judgment without first ensuring that the defendant had been properly notified and given a chance to defend themselves. The court ultimately declined to grant the default judgment, emphasizing the importance of procedural fairness.

Orders