Hewson v TCN Channel Nine Pty Ltd - [2021] FCA 389

FEDERAL COURT OF AUSTRALIA
Hewson v TCN Channel Nine Pty Ltd [2021] FCA 389

File number(s): NSD 697 of 2020

Judgment of: WIGNEY J

Date of judgment: 18 March 2021

Date of publication of reasons: 26 April 2021

Catchwords:
PRACTICE AND PROCEDURE – respondents’ interlocutory application to amend defence – altering of proper material – whether amendments would cause prejudice to applicant – whether delay in making application satisfactorily explained – whether amendments would assist the proper adjudication of real questions in controversy – where amendments were minor and found to not cause prejudice to the applicant – where amendments not remediable by costs order – leave to amend defence granted

DEFAMATION – applicant’s interlocutory application to set aside subpoena – subpoena relevant to aggravated damages – whether truth or falsity of imputations in issue – whether legitimate forensic purpose or abuse of process – whether relevant to proper issue raised by pleadings – subpoena partly set aside

Legislation: Defamation Act 2005 (NSW), s 31(3)

Cases cited:
Alister v The Queen (1984) 154 CLR 404

Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501

FUD18 v Minister for Home Affairs [2019] FCA 1858 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 47

Date of hearing: 18 March 2021

Counsel for the Applicant: Mr T Blackburn SC with Ms C Amato

Solicitor for the Applicant: Bird & Bird

Counsel for the Respondents: Mr P Gray SC with Mr B Dean

Solicitor for the Respondents: Mark O’Brien Legal

ORDERS

NSD 697 of 2020

BETWEEN:
JOHN HEWSON

Applicant

AND:
TCN CHANNEL NINE PTY LTD ACN 001 549 560

First Respondent

NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407

Second Respondent

TRACY GRIMSHAW

Third Respondent

DANIELLE POST

Fourth Respondent

ORDER MADE BY:

WIGNEY J

DATE OF ORDER:

18 MARCH 2021

THE COURT ORDERS THAT:
1.The respondents be granted leave to file an amended defence in the form set out at Annexure A to the interlocutory application filed on 26 February 2021.
2.Paragraphs 3, 4, 5, 7, 9, 10, 11 and 12 of the subpoena, filed on 9 February 2021, issued and served on GSA Insurance Brokers Pty Ltd be set aside.
3.The costs of the interlocutory applications filed by the respondents on 26 February 2021 and by the applicant on 2 March 2021 be costs in the cause.
4.The costs of the interlocutory application filed by GSA Insurance Brokers Pty Ltd filed on 3 March 2021 be reserved.
5.To the extent not set aside in order 2 above, the subpoena issued and served on GSA Insurance Brokers Pty Ltd be listed before a Registrar on 24 March 2021.

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

REASONS FOR JUDGMENT
(Delivered ex tempore, revised from transcript)
WIGNEY J:

The applicant Dr John Hewson, commenced a proceeding in this Court against…

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: [2021] FCA 389
Decision Date: 18 March 2021

CaseChat Overview and Summary

The respondents, TCN Channel Nine Pty Ltd, applied for leave to amend their defence in response to the applicant, Dr Hewson, who had filed an interlocutory application seeking to set aside a subpoena relevant to aggravated damages in a defamation case. The application was heard in the Federal Court of Australia. The core issues before the court involved whether the amendments proposed by the respondents would prejudice Dr Hewson, whether the delay in making the application was satisfactorily explained, and whether the amendments would assist in the proper adjudication of the real questions in controversy. Additionally, the court needed to determine whether the subpoena was relevant to the proper issues raised by the pleadings and whether it served a legitimate forensic purpose or was an abuse of process.

The court examined the nature of the proposed amendments and concluded they were minor and would not cause prejudice to Dr Hewson. The court also found that the delay in making the application was satisfactorily explained and that the amendments would assist in the proper adjudication of the real questions in controversy. Regarding the subpoena, the court held that certain paragraphs were not relevant to the proper issues raised by the pleadings and did not serve a legitimate forensic purpose. Consequently, those paragraphs were set aside, while others were to be listed before a Registrar.

The court granted the respondents leave to file an amended defence, ordered that certain paragraphs of the subpoena be set aside, and determined the costs associated with the interlocutory applications. Specifically, the costs of the interlocutory applications filed by the respondents and the applicant were to be costs in the cause, whereas the costs of the application filed by GSA Insurance Brokers Pty Ltd were to be reserved. The court's decision was made under the Federal Court Rules 2011, ensuring compliance with procedural requirements.

Orders

Orders of the court

1. The respondents be granted leave to file an amended defence in the form set out at Annexure A to the interlocutory application filed on 26 February 2021.

2. Paragraphs 3, 4, 5, 7, 9, 10, 11 and 12 of the subpoena, filed on 9 February 2021, issued and served on GSA Insurance Brokers Pty Ltd be set aside.

3. The costs of the interlocutory applications filed by the respondents on 26 February 2021 and by the applicant on 2 March 2021 be costs in the cause.

4. The costs of the interlocutory application filed by GSA Insurance Brokers Pty Ltd filed on 3 March 2021 be reserved.

5. To the extent not set aside in order 2 above, the subpoena issued and served on GSA Insurance Brokers Pty Ltd be listed before a Registrar on 24 March 2021.

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

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Decision

Reasons for decision

Paragraphs 10, 11 and 12 of the schedule to the subpoena should accordingly be set aside. CONCLUSION AND DISPOSITION Channel Nine should be granted leave to file an amended defence. They should, however, be ordered to pay Dr Hewson’s costs, if any, thrown away as a result of the amendment. All of the paragraphs of the schedule to the subpoena should be set aside other than paragraphs 2, 6 and 8. As for the costs of the interlocutory applications filed by the respondent on 26 February 2021 and by the applicant on 2 March 2021, costs of those interlocutory applications will be costs in the cause. It is, in all the circumstances, appropriate for the costs of the interlocutory application filed by GSA on 3 March 2021 to be reserved.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 697 of 2020
Judgment of:	WIGNEY J
Date of judgment:	18 March 2021
Date of publication of reasons:	26 April 2021
Catchwords:	PRACTICE AND PROCEDURE – respondents’ interlocutory application to amend defence – altering of proper material – whether amendments would cause prejudice to applicant – whether delay in making application satisfactorily explained – whether amendments would assist the proper adjudication of real questions in controversy – where amendments were minor and found to not cause prejudice to the applicant – where amendments not remediable by costs order – leave to amend defence granted DEFAMATION – applicant’s interlocutory application to set aside subpoena – subpoena relevant to aggravated damages – whether truth or falsity of imputations in issue – whether legitimate forensic purpose or abuse of process – whether relevant to proper issue raised by pleadings – subpoena partly set aside
Legislation:	Defamation Act 2005 (NSW), s 31(3)
Cases cited:	Alister v The Queen (1984) 154 CLR 404 Becwell Legal Services Pty Ltd v McMaster [2011] FCA 1501 FUD18 v Minister for Home Affairs [2019] FCA 1858 National Employers’ Mutual General Association Ltd v Waind and Hill [1978] 1 NSWLR 372
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	47
Date of hearing:	18 March 2021
Counsel for the Applicant:	Mr T Blackburn SC with Ms C Amato
Solicitor for the Applicant:	Bird & Bird
Counsel for the Respondents:	Mr P Gray SC with Mr B Dean
Solicitor for the Respondents:	Mark O’Brien Legal

ORDER MADE BY:	WIGNEY J
DATE OF ORDER:	18 MARCH 2021