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Hewitt v Pacific Magazines Pty Ltd

Hewitt v Pacific Magazines Pty Ltd

Case [2009] SASC 323 15 October 2009

Appeal

Pre-action Disclosure

Media & Entertainment Law

Defamation

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SUPREME COURT OF SOUTH AUSTRALIA
(Civil: Application)
HEWITT v PACIFIC MAGAZINES PTY LTD
[2009] SASC 323
Reasons of Judge Lunn a Master of the Supreme Court
15 October 2009
PROCEDURE
Pre-action disclosure of documents sought under 6R 32 by plaintiff with claim in defamation against a magazine publisher for documents relating to the sources of the material published - "newpaper rule" as bar to order being made - held order would be made.

HEWITT v PACIFIC MAGAZINES PTY LTD
[2009] SASC 323
Reasons on plaintiff’s application for pre-action disclosure of documents.

JUDGE LUNN: In its edition of 4 April 2009 the New Idea magazine, published by the defendant, contained an article about the plaintiff entitled, “The other man in Bec’s life”. On the front cover was a picture of the plaintiff in the company of a man who was carrying her young daughter with a caption of “BEC’S OTHER MAN!”. On the contents page, in setting out what in the rest of the magazine, was an entry “6 BEC’S SECRET LIFE Meet the man making her smile”. On that contents page was also a picture of the plaintiff and her daughter bearing a caption “As her husband Leyton Hewitt focuses on reviving his career, devoted mum Bec is raising their children with a fabulous, caring, hunky man by her side”. In the article there are a number of pictures of the plaintiff in the company of her two children and a man who is identified , and spoken of, in the article as “’Minder Mark’, a former fitness trainer from Dallas, has given Bec a new lease of life – he’s her full-time “manny”!” The pictures were apparently taken at a marine park in Miami in the USA. The text of the article contains a number of quotations ascribed to unidentified persons. The author of the article is not identified.
The plaintiff did not consent to the pictures appearing in New Idea being taken or have any input into the text which appeared with them. The man appearing in the pictures, and who is referred to frequently in the text of the article, was not “Minder Mark”, but Shaun Cartwright, the brother of the plaintiff.
The plaintiff contends that what appeared in this edition of New Idea was defamatory of her in that the words and pictures were understood to mean that she was in a romantic relationship with a man other than her husband and was having a extra-marital affair. The defendant disputes that there are any defamatory imputations, but they are at least arguable.
In subsequent editions of New Idea on 11 and 18 April 2009 the defendant published corrections and an apology, but the plaintiff does not accept them as being sufficient. In the magazine of 18 April the defendant stated:
….. We referred to “Minder Mark” whom we believed was a child minder in the employ of the Hewitt family, and published photographs of him with Bec Cartwright and her children. We understand that no person…

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 Hewitt v Pacific Magazines Pty Ltd

Details

AGLC: Hewitt v Pacific Magazines Pty Ltd [2009] SASC 323
Case: [2009] SASC 323
Decision Date: 15 October 2009

CaseChat Overview and Summary

The case of Hewitt v Pacific Magazines Pty Ltd involved the plaintiff, Bec Hewitt, seeking pre-action disclosure of documents from the defendant, Pacific Magazines Pty Ltd, the publisher of New Idea magazine. Hewitt alleged that the April 4, 2009, edition of New Idea was defamatory as it implied she was in a romantic relationship with a man other than her husband, Leyton Hewitt. The magazine featured a front cover with a picture of Hewitt and another man carrying her daughter with a caption reading "BEC’S OTHER MAN!" and an article titled "The other man in Bec’s life". Hewitt claimed that the man in the article was not her "minder Mark", but her brother, Shaun Cartwright. She alleged that the defendant had published false and defamatory information without her consent.

The plaintiff sought an order for the defendant to disclose all evidentiary material in its possession, custody, or power, including correspondence, letters, facsimile transmissions, reports, invoices, e-mail transmissions, file notes, internal memoranda, and any information held in electronic form relating to or evidencing the information and photographic material used and/or relied upon by the defendant in its research for, and preparation, editing, and publication of, the articles in question. The plaintiff also sought the sources of all information and photographic material as referred to in the application.

The court considered the legal issues surrounding the plaintiff's application for pre-action disclosure of documents under Rule 32. The court found that the plaintiff had satisfied the threshold for disclosure under subparagraphs (a) and (c) of Rule 32(1), as she had a more than baseless speculation that the defendant had a source which published defamatory material about her and that she required further information to ascertain whether she had a cause of action against such sources. The court rejected the plaintiff's claim for disclosure of documents to identify the source of the defamatory material on the ground that she was entitled to "nail the liar" as it extended to obtaining a judgment against the ultimate source of the defamatory material. However, the court found that the plaintiff had satisfied the threshold for disclosure for a cause of action in injurious falsehood.

The court considered the discretionary factors, including the advantages of joining all defendants and causes of action in the initial summons and statement of claim against the costs, delay, and inconvenience which would be likely if additional defendants and causes of action were added partway through the case. The court found that there was a sufficient possibility that the disclosure sought would result in additional defendants and/or causes of action, making a significant discretionary factor in favour of disclosure being ordered to expedite the new action.

The court rejected the defendant's submission that the equivalent of the "newspaper rule" should be applied to refuse an order that it disclose the sources of its information and the information which it had received. The court found that there was no basis on any analogy of the "newspaper rule" to refuse the order sought, as there was no evidence that the defendant had any source which needed to be protected.

The court accepted the submissions of the defendant that the terms of the order sought in the application were far too wide and ordered the plaintiff to bring in minutes of order in accordance with the reasons provided. The court adjourned the matter for this purpose.

In summary, the court granted the plaintiff's application for pre-action disclosure of documents under Rule 32 to the extent that it was necessary to determine whether a cause of action existed and to ascertain whether she had a cause of action against any source of the defendant for misleading or deceptive conduct under the Trade Practices Act 1974 and the tort of injurious falsehood. The court ordered the defendant to disclose the requested documents and adjusted the terms of the order to be more specific and in line with the plaintiff's application.

Orders