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Hewitt v ATP Tour Inc

Hewitt v ATP Tour Inc

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Case Copied 17 September 2004 55 min read

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HEWITT v ATP TOUR INC
Judgment of The Honourable Justice Mullighan
17 September 2004
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - PLEADINGS
Miscellaneous procedural matters - pleadings - strike out application - application for particulars through further amended Statement of Claim - action in breach of contract, defamation, and injurious falsehood - plaintiff a professional tennis player contracted to the defendant in relation to ATP Tour - promotional obligations pursuant to contract - allegation of breach of contract occurring in United States of America - alleged causes of action arising out of disciplinary proceedings pursuant to contract - alleged statements made by defendant and republication of tortious statements - test to be applied on strike out application as to pleaded imputations - whether pleaded imputations are appropriate - whether need to identify lex loci delicti as to publications and republications - place of publication of internet publications - extent to which lex loci delicti must be pleaded - general damages not available for action for injurious falsehood - extent to which actual losses to be pleaded - damages for general loss of business - particular paragraphs of Statement of Claim struck out with liberty to replead - some further particularity required - otherwise applications dismissed.
Supreme Court Rules 1987 R 46A.09, referred to.
Chapman & Chapman v Australian Broadcasting Commission (2000) 77 SASR 181; Hough v London Express Newspaper Ltd [1940] 2 KB 507; Capital & Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741; Farquhar v Bottom [1980] 2 NSWLR 380; Singleton v Ffrench (1986) 5 NSWLR 425; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; General Steel Industries Inc v Commissioner for Railways (N.S.W.) & Ors (1964) 112 CLR 125; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; A & Ipec Australia Ltd v Crew [1973] VR 39; Sims v Wran [1984] 1 NSWLR 317; Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451; Dow Jones & Company Inc v Gutnick (2002) 194 ALR 433; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Fielding v Variety Incorporated [1967] 2 QB 841; Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388; Ratcliffe v Evans [1892] 2 QB 524; Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1; Mechniff v Simpson [1968] VR 62; Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281; Lazarus v Deutschke Lufthansa Co [1985] 1 NSWLR 188; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, applied.
Moose v Odhams Press Ltd [1971] 1 WLR 1239; [1941] 2 All ER 1156; Nationwide…

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: [2004] SASC 286
Decision Date: 17 September 2004

CaseChat Overview and Summary

The case of Hewitt v ATP Tour Inc involved a dispute between professional tennis player Lleyton Hewitt and ATP Tour Inc, the defendant. The plaintiff brought an action in the Supreme Court of South Australia alleging breaches of contract, defamation, and injurious falsehood. The core of the dispute was centred on alleged breaches of promotional obligations under a contract between the parties, along with defamatory and injurious statements made by the defendant, which were alleged to have been published and republished in various jurisdictions, including the United States and potentially on the internet.

The court was tasked with deciding several legal issues, including whether the plaintiff's allegations of defamation and injurious falsehood were appropriately pleaded, whether the court needed to identify the applicable law (lex loci delicti) for each alleged publication and republication, and what standard of particularity was required for the plaintiff's claims. Specifically, the court had to determine the appropriate test for determining whether the pleaded imputations were appropriate, the extent to which the lex loci delicti must be pleaded, and the extent to which actual losses must be pleaded in the case of injurious falsehood. Additionally, the court needed to address whether general damages were available for an action of injurious falsehood and the appropriate measure for damages related to a general loss of business.

The court found that while some imputations in the Statement of Claim were not appropriately pleaded, they could be struck out with liberty to replead. The court also determined that the plaintiff was not required to identify the lex loci delicti for internet publications, as the primary place of publication was considered to be the location where the publication was accessed by the majority of readers. Furthermore, the court held that general damages were not available for an action of injurious falsehood, and the plaintiff needed to plead actual losses with particularity. The court struck out certain paragraphs of the Statement of Claim but allowed the plaintiff to replead them with further particularity. The remaining applications were dismissed.

The final orders of the court were that certain paragraphs of the Statement of Claim were struck out with liberty to replead, with the requirement for further particularity, and that the remaining applications were dismissed.

Orders