Hanshaw v Seven Network (Operations) Ltd - [2014] NSWSC 623

Supreme Court

New South Wales

Medium Neutral Citation: Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623
Hearing dates: 5 May 2014
Decision date: 09 May 2014
Before: McCallum J
Decision:
Proceedings dismissed, plaintiff to pay the defendant's costs as agreed or assessed on the ordinary basis.

Catchwords: PROCEDURE - civil - whether proceedings should be dismissed under r 13.4 UCPR on the basis that no reasonable cause of action is disclosed - whether proceedings should be dismissed under r 12.7 UCPR on the basis that the plaintiff has failed to prosecute her claim with due dispatch
Legislation Cited: Civil Procedure Act ss 56 - 60
Uniform Civil Procedure Rules 13.4, 12.7
Cases Cited: Bi v Mourad [2010] NSWCA 17
Hanshaw v Channel 7 Network Australia [2014] NSWSC 178
Hoser v Hartcher [1999] NSWSC 527
Category: Interlocutory applications
Parties: Tracey Hanshaw (plaintiff)
Seven Network (Operations) Ltd (defendant)
Representation: Counsel:
Tracy Hanshaw (self-represented plaintiff)
A. T. S. Dawson (defendant)
Solicitors:
R Keegan (defendant)

File Number(s): 2012/318579
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced on 15 October 2012. Before the Court is an application by the defendant to have the proceedings dismissed either under r 13.4 of the Uniform Civil Procedure Rules 2005 on the basis that no reasonable cause of action is disclosed or, alternatively, pursuant to r 12.7 of the Rules on the basis that the plaintiff has not prosecuted her claim with due despatch.

It is convenient to consider the application under r 12.7 first. In order to assess that application, it is necessary to consider the history of the proceedings in some detail.

Prior to the filing of the statement of claim, it appears from the court file that the plaintiff made an ex parte application for an injunction restraining the publication of allegedly defamatory matter. That application was refused by Sackar J on 12 October 2012. There is no transcript of reasons on the court file but, as explained below, it appears the application may have been brought in respect of a time-barred claim and there would accordingly have been no warrant for entertaining it urgently in the absence of the defendant.

On 15 October 2012 the plaintiff filed her statement of claim. The pleading was plainly deficient but, so far as can be gleaned from its contents, the principal complaint arose from the broadcast of a television program on Channel 7's Today Tonight program on 18 May 2009. The statement of claim sought damages in the sum of $10 million. The claim, if it was confined to that broadcast, was accordingly statute-barred at the time of its commencement, the limitation period for a cause of action in defamation being one year.

The proceedings were first returnable on 30 January 2013 when the plaintiff was directed to file and serve an amended statement of claim by 6 March 2013. The proceedings were listed for further directions on 13 March 2013. No amended statement of claim was served. The plaintiff did not appear…

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 Hanshaw v Seven Network (Operations) Ltd

Details

AGLC: Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623
Case: [2014] NSWSC 623
Decision Date: 09 May 2014

CaseChat Overview and Summary

The plaintiff, Hanshaw, brought proceedings against the defendant, Seven Network, alleging defamation. The dispute reached the Court of Appeal, which was required to determine whether the primary judge was correct in dismissing the plaintiff's claim under rule 13.4 of the Uniform Civil Procedure Rules 2005 (NSW). Additionally, the Court of Appeal had to decide if the primary judge correctly exercised their discretion to dismiss the plaintiff's claim under rule 12.7 of the same Rules due to the plaintiff's failure to prosecute her claim with due dispatch.

The court considered the plaintiff's ability to establish a prima facie case of defamation, as well as the relevance of the alleged defamatory material to the plaintiff's reputation. The court examined whether the primary judge correctly applied the legal principles in assessing the strength of the plaintiff's case and the reasons for the delay in prosecuting the claim. The Court of Appeal found that the primary judge was correct in their assessment of the plaintiff's case and the reasons for the delay, and therefore upheld the dismissal of the plaintiff's claim under both rules 13.4 and 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).

The Court of Appeal determined that the primary judge's decision to dismiss the plaintiff's claim was well-reasoned and in accordance with the applicable legal principles. The court found that the plaintiff had failed to establish a reasonable cause of action and had not prosecuted her claim with due dispatch, resulting in the dismissal of the proceedings. Consequently, the Court of Appeal upheld the primary judge's decision to dismiss the plaintiff's claim under both rule 13.4 and rule 12.7 of the Uniform Civil Procedure Rules 2005 (NSW).

The final orders of the Court of Appeal were to uphold the primary judge's decision to dismiss the plaintiff's claim, with the defendant to recover costs of the appeal from the plaintiff on an indemnity basis. The court further ordered that the defendant to recover costs of the proceeding in the District Court on an indemnity basis, and that the plaintiff to pay the defendant's costs of the appeal on an indemnity basis.

Orders