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Hanson-Young v Leyonhjelm

Hanson-Young v Leyonhjelm

Case [2018] FCA 1688 7 November 2018

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FEDERAL COURT OF AUSTRALIA
Hanson-Young v Leyonhjelm [2018] FCA 1688

File number: NSD 1370 of 2018

Judge: WHITE J

Date of judgment: 7 November 2018

Catchwords:
PRACTICE AND PROCEDURE – application to strike out Statement of Claim under r 16.21 of the Federal Court Rules 2011 (the FCR) – claim that the defamatory imputations are pleaded as “particulars” rather than “substantive averments” – pleading sufficiently discloses the case that the Respondent must meet at trial and discloses a reasonable cause of action – application dismissed.

PRACTICE AND PROCEDURE – application to strike out Statement of Claim under r 16.21(1) of the FCR – pleading states that further particulars relating to the extent of publication and republication will be provided after discovery and interrogatories – application to strike out because the Applicant has not yet made an application for discovery or for leave to interrogate – application dismissed.

PRACTICE AND PROCEDURE – application for stay or dismissal of proceedings due to a likely breach of s 16(1)(3) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act) – no breach of the PP Act involved in the Court hearing and determining whether words attributed by the Respondent to the Applicant formed part of “proceedings in Parliament”.

Legislation:
Constitution s 49

Parliamentary Privileges Act 1987 (Cth) ss 10, 16

Federal Court Rules 2011 (Cth) rr 16.02, 16.03, 16.21, 16.41, 20.12, 21.01

Cases cited:
Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223

Beach Petroleum NL v Johnson (1991) 105 ALR 456

Bracks v Smyth‑Kirk [2008] NSWSC 930

Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466

Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86

Egan v Willis [1998] HCA 71; (1998) 195 CLR 424

Faruqi v Latham [2018] FCA 1328

Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152

R v Associated Northern Collieries [1910] HCA 61, (1910) 11 CLR 738

Rann v Olsen [2000] SASC 83; (2000) 76 SASR 480

Rush v Nationwide News Pty Ltd [2018] FCA 357

Saunders v Jones (1877) 7 Ch D 435

Trkulja v Google LLC [2018] HCA 25; (2018) 356 ALR 178

Wing v The Australian Broadcasting Corporation [2018] FCA 1340

Date of hearing: 18 October 2018

Registry: New South Wales

Division: General Division

National Practice Area: Other Federal Jurisdiction

Category: Catchwords

Number of paragraphs: 59

Counsel for the Applicant: Ms S Chrysanthou with Mr B Dean

Solicitor for the Applicant: Kennedys

Counsel for the Respondent: Mr KE Stoyle

Solicitor for the Respondent: Sterling Law

Table of Corrections

12 November 2018 In the Appearances on the cover page in the field Counsel for the Applicant the words “with Mr B Dean” after “Ms S Chrysanthou” have been added.

ORDERS

NSD 1370 of 2018

BETWEEN:
SARAH HANSON-YOUNG

Applicant

AND:
DAVID EAN LEYONHJELM

Respondent

JUDGE:

WHITE J

DATE OF ORDER:

7 NOVEMBER 2018

THE COURT ORDERS THAT:
1.The Respondent’s Amended Interlocutory Application of 11 October 2018 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32…

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 Hanson-Young v Leyonhjelm

Details

AGLC: Hanson-Young v Leyonhjelm [2018] FCA 1688
Case: [2018] FCA 1688
Decision Date: 7 November 2018

CaseChat Overview and Summary

In Hanson-Young v Leyonhjelm, Senator Leyonhjelm filed a defamation claim against Senator Hanson-Young. The dispute centred on the validity of the claims made in the Statement of Claim, as well as the procedural aspects of the case. The Federal Court was tasked with determining whether the Statement of Claim met the necessary legal standards and whether certain procedures had been followed correctly.

The primary legal issues before the court were whether the defamatory imputations were adequately pleaded as substantive averments and not merely particulars, and whether the proceedings complied with the Parliamentary Privileges Act 1987 (Cth). Additionally, the court had to consider if there was a valid basis for striking out the claim or staying the proceedings due to potential breaches of parliamentary privilege.

The court dismissed the application to strike out the Statement of Claim, finding that it sufficiently disclosed the case that the respondent must meet at trial and presented a reasonable cause of action. The court also determined that there was no breach of the Parliamentary Privileges Act involved in the court hearing and determining the matter, and that the proceedings were not affected by parliamentary privilege. Consequently, the application for a stay or dismissal of the proceedings was also dismissed.

The final orders of the court were that the respondent's Amended Interlocutory Application of 11 October 2018 was dismissed, and the case proceeded as scheduled. The entry of orders was governed by Rule 39.32 of the Federal Court Rules 2011.

Orders

Orders of the court

1. The Respondent’s Amended Interlocutory Application of 11 October 2018 is dismissed.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Hanson-Young v Leyonhjelm [2018] FCA 1688

Most Recent Citation

Leyonhjelm v Hanson-Young [2019] FCA 156

Cases citing this decision · 10 of 10 shown

Hanson v Burston (No 3)
[2025] FCA 761 Para 1

…The applicant relied on the decision of White J in Hanson-Young v Leyonhjelm [2018] FCA 1688, in which his Honour stated at [17]: Thus, the FCR maintains the distinction between material facts and particulars. However, in practice the distinction is often blurred. The Court is more concerned with whether responden…
Blaylock-Rayner v Seven Network (Operations) Limited
[2023] FCA 1026 Para 16

…v Nationwide News Pty Ltd [2018] FCA 357 at [42]-[43] (Wigney J); Faruqi v Latham [2018] FCA 1328 at [15]-[17] (Wigney J); Hanson-Young v Leyonhjelm [2018] FCA 1688 at [9] (White J); and Parke v Rubenstein (No 2) [2021] FCA 107 at [20] (White J).…
Leyonhjelm v Hanson-Young
[2021] FCAFC 22 Para 6

…the purpose of determining whether a matter did form part of “proceedings in Parliament” within the meaning of s 16(2): Hanson-Young v Leyonhjelm (2018) 364 ALR 624 at 632–633 [55].…
Parke v Rubenstein (No 2)
[2021] FCA 107 Para 20

…uqi v Latham [2018] FCA 1328 at [15]‑[17]; Wing v The Australian Broadcasting Corporation [2018] FCA 1340 at [7]; Hanson‑Young v Leyonhjelm [2018] FCA 1688, (2018) 364 ALR 624 at [9]. It is not necessary to refer to the principles in detail. It is accepted that the discretionary power to strike out should be exerc…
Nl Investment Group Pty Ltd v Parc Vue Project Botanic Pty Ltd (Trustee)
[2020] FCA 711 Para 2

…h between the pleading of material facts and the provision of particulars: see div 16.14 (ss 16.41A–16.45) of the Rules , Hanson-Young v Leyonhjelm [2018] FCA 1688; 364 ALR 624 at [17] per White J and Jenkings at [18]. Lindgren J explained the different purposes of the pleading of material facts and particulars as…
Hanson-Young v Leyonhjelm (No 5)
[2020] FCA 34 Para 7

…espondent from at least 7 November 2018 (when judgment was delivered on his strike out/permanent stay application ( Hanson‑Young v Leyonhjelm [2018] FCA 1688; (2018) 364 ALR 624) that his defence based on s 16(3) of the Parliamentary Privileges Act 1987 (Cth) may not succeed. His appreciation that this may be so s…
Hanson-Young v Leyonhjelm (No 4)
[2019] FCA 1981

…Halden v Marks (1995) 17 WAR 447 Hamsher v Swift (1992) 33 FCR 545 Hanson‑Young v Leyonhjelm [2018] FCA 1688; (2018) 364 ALR 624 Harbour Radio Pty Ltd v Tingle [2001] NSWCA 194 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 237 FCR 33 Horrocks v Lowe [1975] AC 135 Howden v Truth & Sportsman Lt…
Australian Broadcasting Corporation v Chau Chak Wing
[2019] FCAFC 125 Para 6

…ulars, and that the time to determine whether there was a breach of the Parliamentary Privileges Act was at trial, citing Hanson-Young v Leyonhjelm [2018] FCA 1688 at [55]-[58] (White J).…
Hanson-Young v Leyonhjelm (No 2)
[2019] FCA 393 Para 2

…ing out of the applicant’s Amended Statement of Claim (ASC) and for the permanent stay or dismissal of the proceedings: Hanson-Young v Leyonhjelm [2018] FCA 1688 (the Strike Out Judgment).…
Leyonhjelm v Hanson-Young
[2019] FCA 156 Para 8

…The primary judge dismissed the application ( Hanson-Young v Leyonhjelm [2018] FCA 1688). It is in respect of that order, that leave to appeal is sought. THE APPLICATION FOR LEAVE TO APPEAL…

View all 10 citing cases →

Cases cited in this decision · 20 of 20 shown

Wing v The Australian Broadcasting Corporation
[2018] FCA 1340 Para 9

…onwide News Pty Ltd [2018] FCA 357 at [42]‑[43]; Faruqi v Latham [2018] FCA 1328 at [15]‑[17]; Wing v The Australian Broadcasting Corporation [2018] FCA 1340 at [70]. The form of the pleading of the defamatory imputations…
Faruqi v Latham
[2018] FCA 1328 Para 9

…v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [36]‑[38]; Rush v Nationwide News Pty Ltd [2018] FCA 357 at [42]‑[43]; Faruqi v Latham [2018] FCA 1328 at [15]‑[17]; Wing v The Australian Broadcasting Corporation [2018] FCA 1340 at [70]. The form of the pleading of the defamatory imputations…
Trkulja v Google LLC
[2018] HCA 25 Para 7

…n in any event given the “great caution” to be exercised by courts in disallowing a defamation pleading on this basis: Trkulja v Google LLC [2018] HCA 25; (2018) 356 ALR 178 at [30].…
Rush v Nationwide News Pty Ltd
[2018] FCA 357 Para 9

…context in several recent decisions: Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [36]‑[38]; Rush v Nationwide News Pty Ltd [2018] FCA 357 at [42]‑[43]; Faruqi v Latham [2018] FCA 1328 at [15]‑[17]; Wing v The Australian Broadcasting Corporation [2018] FCA 1340 at [70]. The form of the plead…
Goodfellow v Fairfax Media Publications Pty Ltd
[2017] FCA 1152 Para 9

…are well‑established. Some have been stated in the defamation context in several recent decisions: Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 at [36]‑[38]; Rush v Nationwide News Pty Ltd [2018] FCA 357 at [42]‑[43]; Faruqi v Latham [2018] FCA 1328 at [15]‑[17]; Wing v The Australian Broadcast…
Carrigan v Honourable Senator Michaelia Cash
[2017] FCAFC 86 Para 2

…66, I set out my understanding of the effect of s 16. I do not understand the Full Court on the appeal ( Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86) to have indicated that that understanding is incorrect. I therefore repeat what I said then: [10]… [s] 16 is not to be regarded as limited in its sc…
Carrigan v Honourable Senator Michaelia Cash
[2016] FCA 1466 Para 2

…In Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466, I set out my understanding of the effect of s 16. I do not understand the Full Court on the appeal ( Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86) to have indicated that that understanding is incorrect. I therefore repeat what I said…
Bracks v Smyth-Kirk
[2008] NSWSC 930 Para 31

…mation proceedings in two ways: as establishing a separate cause of action or as going to damages from the initial publication: Bracks v Smyth‑Kirk [2008] NSWSC 930 at [26]. It is apparent that the Applicant relies on republication for the latter purpose.…
R v Theophanous
[2003] VSCA 78 Para 2

…00] SASC 83, (2000) 76 SASR 450 at [53], [100] (Doyle CJ, with whom Mullighan J agreed), [236]‑[245] (Perry J), [393] (Lander J); R v Theophanous [2003] VSCA 78, (2003) 141 A Crim R 216 at [66]. [11]Section 16(3) has the effect of making it unlawful for evidence to be tendered or received in a Court or for questi…
Crane v Gething
[2000] FCA 762 Para 2

…tances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] FCA 45, (2000) 97 FCR 9 at [49].…
Rann v Olsen
[2000] SASC 83 Para 2

…16(1) is an express indication that the Parliament contemplated that s 16 may have an operation which is additional to that of Art 9: Rann v Olsen [2000] SASC 83, (2000) 76 SASR 450 at [53], [100] (Doyle CJ, with whom Mullighan J agreed), [236]‑[245] (Perry J), [393] (Lander J); R v Theophanous [2003] VSCA 78, (…
Crane v Gething
[2000] FCA 45 Para 2

…ng such circumstances is said to lie with the Parliament itself: Halden v Marks at 463; Crane v Gething [2000] FCA 45, (2000) 97 FCR 9 at [49].…
Egan v Willis
[1998] HCA 71 Para 10

…14]It is for the courts to determine the existence of the privilege when that arises as an issue in proceedings properly before it: Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 at [27]. The Full Court of the Supreme Court of Western Australia explained the position more fully in Halden v Marks at 462 when out…
Beach Petroleum NL v Johnson
[1991] FCA 839 Para 17

…s, disclose sufficiently the case which the opposing party must meet at trial and disclose a reasonable cause of action: Beach Petroleum NL v Johnson (1991) 105 ALR 456 at 466 (von Doussa J).…
Amann Aviation Pty Ltd v Commonwealth of Australia
[1988] FCA 435 Para 10

…may receive and consider evidence concerning parliamentary proceedings for the purposes of determining whether parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231‑2. See also Carrigan v Cash on appeal at [42].…
R v Associated Northern Collieries
[1910] HCA 61 Para 13

…on the one hand, and the pleading of particulars, on the other: Saunders v Jones (1877) 7 Ch D 435 at 451; R v Associated Northern Collieries [1910] HCA 61, (1910) 11 CLR 738 at 740.…
Amann Aviation Pty Ltd v Commonwealth of Australia
[1988] FCA 24 Para 10

…mentary proceedings for the purposes of determining whether parliamentary privilege applies: Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 at 231‑2. See also Carrigan v Cash on appeal at [42].…
[1995] 1 AC 321
[1995] 1 AC 321 Para 2

…ncern that those actions may be subject to later scrutiny by the courts: Prebble v Television New Zealand Limited [1995] 1 AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s…
Halden v Marks
(1995) 17 WLR 447 Para 2

…AC 321 at 334B. The privilege also operates to avoid conflicts between Parliament and the courts: Halden v Marks (1995) 17 WAR 447 at 463. It has been said that provisions such as Art 9 and s 16 reflect a broader principle pursuant to which courts and the Parliament are “astute to recognise their respective constit…
Saunders v Jones
(1877) ChD 435 Para 13

…red to authorities indicating the distinction between a substantive pleading, on the one hand, and the pleading of particulars, on the other: Saunders v Jones (1877) 7 Ch D 435 at 451; R v Associated Northern Collieries [1910] HCA 61, (1910) 11 CLR 738 at 740.…

Legislation cited in this decision · 2

Federal Court Rules 2011 (Cth)
16.02, 16.03, 16.21, 16.41, 20.12, 21.01 7 mentions (from Para 8)
Parliamentary Privileges Act 1987 (Cth)
10, 16 3 mentions (from Para 43)

File number:	NSD 1370 of 2018
Judge:	WHITE J
Date of judgment:	7 November 2018
Catchwords:	PRACTICE AND PROCEDURE – application to strike out Statement of Claim under r 16.21 of the Federal Court Rules 2011 (the FCR) – claim that the defamatory imputations are pleaded as “particulars” rather than “substantive averments” – pleading sufficiently discloses the case that the Respondent must meet at trial and discloses a reasonable cause of action – application dismissed. PRACTICE AND PROCEDURE – application to strike out Statement of Claim under r 16.21(1) of the FCR – pleading states that further particulars relating to the extent of publication and republication will be provided after discovery and interrogatories – application to strike out because the Applicant has not yet made an application for discovery or for leave to interrogate – application dismissed. PRACTICE AND PROCEDURE – application for stay or dismissal of proceedings due to a likely breach of s 16(1)(3) of the Parliamentary Privileges Act 1987 (Cth) (the PP Act) – no breach of the PP Act involved in the Court hearing and determining whether words attributed by the Respondent to the Applicant formed part of “proceedings in Parliament”.
Legislation:	Constitution s 49 Parliamentary Privileges Act 1987 (Cth) ss 10, 16 Federal Court Rules 2011 (Cth) rr 16.02, 16.03, 16.21, 16.41, 20.12, 21.01
Cases cited:	Amann Aviation Pty Ltd v Commonwealth of Australia (1988) 19 FCR 223 Beach Petroleum NL v Johnson (1991) 105 ALR 456 Bracks v Smyth‑Kirk [2008] NSWSC 930 Carrigan v Honourable Senator Michaelia Cash [2016] FCA 1466 Carrigan v Honourable Senator Michaelia Cash [2017] FCAFC 86 Egan v Willis [1998] HCA 71; (1998) 195 CLR 424 Faruqi v Latham [2018] FCA 1328 Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 R v Associated Northern Collieries [1910] HCA 61, (1910) 11 CLR 738 Rann v Olsen [2000] SASC 83; (2000) 76 SASR 480 Rush v Nationwide News Pty Ltd [2018] FCA 357 Saunders v Jones (1877) 7 Ch D 435 Trkulja v Google LLC [2018] HCA 25; (2018) 356 ALR 178 Wing v The Australian Broadcasting Corporation [2018] FCA 1340
Date of hearing:	18 October 2018
Registry:	New South Wales
Division:	General Division
National Practice Area:	Other Federal Jurisdiction
Category:	Catchwords
Number of paragraphs:	59
Counsel for the Applicant:	Ms S Chrysanthou with Mr B Dean
Solicitor for the Applicant:	Kennedys
Counsel for the Respondent:	Mr KE Stoyle
Solicitor for the Respondent:	Sterling Law

Table of Corrections
12 November 2018	In the Appearances on the cover page in the field Counsel for the Applicant the words “with Mr B Dean” after “Ms S Chrysanthou” have been added.