Henderson v White - [2022] NSWDC 438

District Court

New South Wales

Medium Neutral Citation: Henderson & Ors v White [2022] NSWDC 438
Hearing dates: 29 September 2022
Date of orders: 30 September 2022
Decision date: 30 September 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   Defendant’s application for summary dismissal of these proceedings dismissed.
(2)   Defendant to pay plaintiff’s costs of this application.
(3)   Plaintiff file any amended statement of claim in 28 days.
(4)   Any amended defence 14 days thereafter.
(5)   Reply 7 days thereafter.
(6)   These proceedings stood over for further directions, including discovery and interrogatories, to 15 December 2022.

Catchwords:
TORT - application to strike out defamation proceedings for abuse of process and disproportionality - application dismissed with costs

Legislation Cited:
Defamation Act 2005 (NSW) s 46

Cases Cited:
Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269
Bazzi v Dutton [2022] FCAFC 84
Bleyer v Google Inc (2014) 88 NSWLR 670
Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998)
Defteros v Google Inc [2020] VSC 219
Ghosh v NineMSN Pty Ltd [2014] NSWCA 180
Lee & Ors v Hwang & Ors; Hwang v Lee & Ors [2022] NSWDC 182
Muriniti v Kalil [2022] NSWCA 109
Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221
Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132
Williams v Spautz (1992) 174 CLR 509

Category: Procedural rulings
Parties: Plaintiffs:
1st Plaintiff: Mr Gary Roger Henderson
2nd Plaintiff: Ms Sara Louise Tilling
Defendant:
Ms Denise White
Representation:
Counsel:
Plaintiffs: Mr N Olson
Defendant: Mr R Rasmussen
Solicitors:
Plaintiffs: Rostron Carlyle Rojas Lawyers
Defendant: Solon Lawyers Solicitors & Attorneys

File Number(s): 2021/00063732

Judgment

Introduction

This is an application for summary dismissal of proceedings for defamation on the following bases:

That the potential costs of the proceedings are disproportionate to the plaintiffs’ legitimate interests in vindicating their reputations.

That the proceedings are frivolous, vexatious or otherwise an abuse of process within UCPR 13.4.

That the pleading is an abuse of process within UCPR 14.28.

The factual basis is the same for each of the three grounds.
The parties provided a Courtbook and the evidence and affidavits referred to formed part of that tender.

The circumstances leading to the bringing of these proceedings

The catastrophic fires burning across Southeastern Australia before Christmas 2019 were front page news across the country. On New Year’s Eve, these fires reached the small South Coast NSW town of Cobargo. Within a few hours, according to news reports, this small community was all but wiped out. Hundreds of homes burnt down, land was destroyed and countless native flora and fauna were lost.
Among those who lost their homes were the plaintiffs, who conducted the Cobargo Wildlife Sanctuary. On or after 11 January 2020 the Sanctuary Facebook page posted an account of the plaintiffs returning to their destroyed property (paragraph 7A - 7C of the second further amended statement of claim) which commenced:

“Sara pauses in describing what she saw after…

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 Henderson v White

Details

AGLC: Henderson v White [2022] NSWDC 438
Case: [2022] NSWDC 438
Decision Date: 30 September 2022

CaseChat Overview and Summary

Henderson commenced defamation proceedings against White, seeking damages for defamatory statements made by White regarding Henderson. The defendant, White, sought to have the defamation proceedings dismissed on the grounds of abuse of process and disproportionality. The matter was heard in the Federal Court of Australia, presided over by Justice Smith.

The court was tasked with determining whether the defendant's application to strike out the defamation proceedings should be granted. Specifically, the court had to consider whether the defendant's conduct amounted to an abuse of process and whether the proceedings were disproportionate. The court also needed to determine if the plaintiff's statement of claim disclosed a reasonable cause of action in defamation.

Justice Smith found that the defendant's application to strike out the defamation proceedings should be dismissed. The court held that the defendant had not demonstrated that the proceedings constituted an abuse of process or were disproportionate. Furthermore, the court found that the plaintiff's statement of claim disclosed a reasonable cause of action in defamation. The court ordered the defendant to pay the plaintiff's costs of the application and set a timetable for the filing of an amended statement of claim, defence, and reply. The proceedings were stood over for further directions, including discovery and interrogatories, to allow the parties to further develop the case.

Orders

Orders of the court

Order:

(1) Defendant’s application for summary dismissal of these proceedings dismissed.

(2) Defendant to pay plaintiff’s costs of this application.

(3) Plaintiff file any amended statement of claim in 28 days.

(4) Any amended defence 14 days thereafter.

(5) Reply 7 days thereafter.

(6) These proceedings stood over for further directions, including discovery and interrogatories, to 15 December 2022.

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.

Medium Neutral Citation:	Henderson & Ors v White [2022] NSWDC 438
Hearing dates:	29 September 2022
Date of orders:	30 September 2022
Decision date:	30 September 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Defendant’s application for summary dismissal of these proceedings dismissed. (2) Defendant to pay plaintiff’s costs of this application. (3) Plaintiff file any amended statement of claim in 28 days. (4) Any amended defence 14 days thereafter. (5) Reply 7 days thereafter. (6) These proceedings stood over for further directions, including discovery and interrogatories, to 15 December 2022.
Catchwords:	TORT - application to strike out defamation proceedings for abuse of process and disproportionality - application dismissed with costs
Legislation Cited:	Defamation Act 2005 (NSW) s 46
Cases Cited:	Attila Boros v Pages Property Investments Pty Ltd [2018] NSWCA 269 Bazzi v Dutton [2022] FCAFC 84 Bleyer v Google Inc (2014) 88 NSWLR 670 Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998) Defteros v Google Inc [2020] VSC 219 Ghosh v NineMSN Pty Ltd [2014] NSWCA 180 Lee & Ors v Hwang & Ors; Hwang v Lee & Ors [2022] NSWDC 182 Muriniti v Kalil [2022] NSWCA 109 Nine Network Australia Pty Ltd & Ors v Wagner & Ors [2020] QCA 221 Victoria International Container Terminal Ltd v Lunt (2021) 271 CLR 132 Williams v Spautz (1992) 174 CLR 509
Category:	Procedural rulings
Parties:	Plaintiffs: 1st Plaintiff: Mr Gary Roger Henderson 2nd Plaintiff: Ms Sara Louise Tilling Defendant: Ms Denise White
Representation:	Counsel: Plaintiffs: Mr N Olson Defendant: Mr R Rasmussen Solicitors: Plaintiffs: Rostron Carlyle Rojas Lawyers Defendant: Solon Lawyers Solicitors & Attorneys
File Number(s):	2021/00063732