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

1. 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.

1. 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.

1. 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.

1. 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.

1. 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.

1. As I have indicated, the amended statement of claim is hopeless and must be struck out. The claim for summary dismissal, as disclosed by the motion, concerns the absence of any tutor by the second plaintiff. Of itself, that is a matter that could be cured, so that while it might lead to a striking out, I doubt that it would lead to summary dismissal.

1. The only real question is as to the appropriate remedy. Counsel for the defendant, Mr Dawson, urges that the entire proceedings be dismissed rather than just have the statement of claim struck out and Ms Hanshaw being afforded one last opportunity to bring into court a proper pleading. He points to the fact that this date was chosen to meet the plaintiff's convenience, but she has not turned up. He also points to what appears to be her conduct in bringing other proceedings, which look eerily similar to these.

1. There is some force in that, but for two reasons I will not order that the proceedings as a whole be dismissed at this point. The first is that on a strict reading of the notice of motion, that is not what was sought. The only dismissal of the proceedings that was sought concerned the second plaintiff. Prayer 2 of the notice of motion only seeks that the amended statement of claim be struck out and not that the entire proceedings be dismissed. Secondly, in any event, I think in circumstances where the first named plaintiff is unrepresented, then as a matter of fairness, she should be given one opportunity at least to put her house in order.

1. Accordingly, the Court orders that:

(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.

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Decision last updated: 07 March 2014