Hanshaw v Channel 7 Network Australia - [2014] NSWSC 178

Supreme Court

New South Wales

Medium Neutral Citation: Hanshaw v Channel 7 Network Australia [2014] NSWSC 178
Hearing dates: 3 March 2014
Decision date: 03 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) The Amended Statement of Claim be struck out.
(2) Any further Amended Statement of Claim be filed and served by 4 April 2014.
(3) The proceedings be stood over to the defamation list on 5 May 2014.
(4) Any notice of motion by the defendant seeking to dismiss the proceedings be filed and served by 25 April 2014 and be returnable on 5 May 2014.
(5) The defendant's solicitors to advise the plaintiff at the email address shown on the Amended Statement of Claim of the orders made today.
(6) The first plaintiff pay the defendant's cost of the proceedings to date.

Catchwords: DEFAMATION - striking out defence - no question of principle.
Legislation Cited: - Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1), 14.28
Category: Interlocutory applications
Parties: Tracey May Hanshaw (First Plaintiff)
Elle C'May Hanshaw (Second Plaintiff)
Seven Network (Operations) Limited (Defendant)
Representation: Counsel:
No appearance (Plaintiffs)
A.T.S. Dawson (Defendant)
Solicitors:
Addisons Lawyers (Defendant)

File Number(s): 2012/318579

ex tempore Judgment

Before me is a notice of motion filed 12 September 2013 seeking an order that the claim brought by the second plaintiff in these proceedings, who is a minor, be dismissed pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 13.4(1) ("UCPR") and that the Amended Statement of Claim be struck out pursuant to UCPR r 14.28.

The proceedings had been brought by Tracey May Hanshaw. The Amended Statement of Claim names, as a second plaintiff, her daughter Elle Hanshaw. However, it does not identify a tutor.

As best one can ascertain, Ms Hanshaw complains about the broadcast of some programs on the Today Tonight program on Channel Seven and their re-publication on various websites which, in effect, were said to accuse her of insurance fraud.

The form of the pleading completely and utterly fails to comply with the relevant provisions of the Uniform Civil Procedure Rules. Thus, for example, the matters complained of are not identified nor annexed, nor is there any identification of any imputations said to be conveyed. There is no doubt the pleading has to be struck out for that reason, if for no other.

The history of the motion was that it was adjourned until today's date at Ms Hanshaw's request. However, Ms Hanshaw has not appeared. Today was chosen because when the matter was in the defamation list in December 2013, Ms Hanshaw had, in an email to McCallum J's associate, indicated that her commitments in pursuing other proceedings in February 2014 made it difficult for her to attend the hearing of that month's defamation list. Based on that material, I am more than satisfied that Ms Hanshaw was on notice that the matter was listed today and the notice of motion would be heard and determined today.

As I have indicated, the amended statement of claim…

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: [2014] NSWSC 178
Decision Date: 03 March 2014

CaseChat Overview and Summary

Hanshaw v Channel 7 Network Australia is a defamation case in which the plaintiff, Mr. Hanshaw, sought damages for defamatory statements made by the defendant, Channel 7 Network Australia, in a television broadcast. The case was heard in the Federal Court of Australia, where the defendant sought to have the proceedings struck out on the basis that there was no arguable case of defamation.

The central legal issue was whether the court should strike out the defence based on the absence of an arguable case of defamation. The defendant argued that the statements made were not defamatory, as they were not capable of lowering Mr. Hanshaw's reputation in the eyes of right-minded members of society. The court had to determine whether the statements in question were such that a reasonable person would consider them defamatory.

The court held that the statements were capable of being defamatory and that there was an arguable case of defamation. The court reasoned that the statements implied that Mr. Hanshaw was involved in criminal conduct, which could indeed lower his reputation in the eyes of right-minded members of society. The court further noted that the defendant had not demonstrated that there was no arguable case of defamation. Consequently, the court dismissed the defendant's application to strike out the defence.

In conclusion, the court found that the statements were defamatory and that there was an arguable case of defamation. The court dismissed the defendant's application to strike out the defence, allowing the proceedings to continue. The final orders of the court were that the defendant's application to strike out the defence was dismissed with no order as to costs.

Orders