Hodgetts v Nine Network Australia Pty Ltd

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SUPREME COURT OF QUEENSLAND

CITATION:

Hodgetts v Nine Network Australia Pty Ltd & Ors [2020] QSC 330

PARTIES:

KYLE HODGETTS

(plaintiff)

v
NINE NETWORK AUSTRALIA PTY LTD

(first defendant)
and
LISA CUTHBERT
(second defendant)
and
GARY FIELD
(third defendant)

FILE NO/S:

4104 of 2017

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

4 November 2020

DELIVERED AT:

Brisbane

HEARING DATE:

11 September 2020

JUDGE:

Flanagan J

ORDERS:

1.    Judgment for the first and third defendants against the plaintiff.

2.   The Court will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the plaintiff sought damages for defamation in respect of online publications related to an episode of A Current Affair, including the republication of material by the second defendant – where the plaintiff had not supplied evidence to prove that the online material was downloaded by a third person within one year prior to the filing of the claim, being the period prescribed by the Limitation of Actions Act 1974 (Qld) – where the plaintiff had not supplied any evidence relating to the alleged republication – where the first defendant brought an application for summary judgment under r 293 of the Uniform Civil Procedure Rules 1999 (Qld) – whether an order for summary judgment should be made against the plaintiff

Limitation of Actions Act 1974 (Qld), s 10AA, s 32A

Uniform Civil Procedure Rules 1999 (Qld), r 293

Chan & Ors v Macarthur Minerals Ltd & Ors [2019] QSC 143, cited
Deputy Commissioner of Taxation v Salcedo [2005] 2 Qd R 232, cited
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575, cited
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87, cited
Gray v Morris [2004] 2 Qd R 118, cited
GWC Property Group Pty Ltd v Higginson & Ors [2014] QSC 264, cited
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231, cited

Sims v Jooste(No 2) [2016] WASCA 83, cited

COUNSEL:

P J McCafferty QC for the first defendant

E A Muir, solicitor, for the third defendant
K Hodgetts, self-represented, for the plaintiff

SOLICITORS:

Macpherson & Kelley Lawyers for the first defendant
Muir Lawyers for the third defendant

  1. By claim and statement of claim filed 26 April 2017, the plaintiff seeks damages for defamation in the amount of $2,475,000,000 from the first, second and third defendants.  In August 2017, the plaintiff obtained default judgment in respect of the second defendant.[1]

    [1]CD 14.

  2. Notices of intention to defend were filed by the first defendant on 7 June 2017 and by the third defendant on 18 August 2017. 

  3. A Case Flow Intervention Notice issued on 6 August 2019. On 31 July 2020, Bowskill J made directions in relation to the first defendant filing and serving any application for summary judgment or strikeout, including directions for the…

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Details
Case
[2020] QSC 330
Decision Date

CaseChat Overview and Summary

In the case of Hodgetts v Nine Network Australia Pty Ltd, the plaintiff sought damages for defamation arising from online publications related to an episode of A Current Affair, as well as the alleged republication of material by a second defendant. The defendant brought an application for summary judgment under rule 293 of the Uniform Civil Procedure Rules 1999 (Qld), arguing that the claims were statute-barred or that there was no real prospect of the plaintiff succeeding at trial. The court had to decide whether an order for summary judgment should be made against the plaintiff due to the alleged statute-barred claims and lack of evidence for the republication claim. The plaintiff did not provide evidence that the online material was downloaded by a third person within the one-year period prescribed by the Limitation of Actions Act 1974 (Qld), nor did the plaintiff provide any evidence relating to the republication claim. The court found that the plaintiff's claims were either statute-barred or that the plaintiff had no real prospect of succeeding at trial due to the lack of evidence.

The court concluded that the plaintiff's claims were either statute-barred or that there was no real prospect of the plaintiff succeeding at trial. Given the plaintiff did not provide evidence that the online material was downloaded by a third person within the one-year period prescribed by the Limitation of Actions Act 1974 (Qld), the claims were statute-barred. Furthermore, the plaintiff had not provided any evidence relating to the alleged republication by the second defendant, leading the court to find that there was no real prospect of the plaintiff succeeding at trial on this claim. The court found that the application for summary judgment should be granted, and therefore, judgment was entered in favour of the defendants. The court will hear the parties as to costs.

Orders

Orders of the court

1. Judgment for the first and third defendants against the plaintiff.

2. The Court will hear the parties as to costs.

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

Apart from the alleged republication by the second defendant of the first matter complained of on the Cuthbert website on or about 13 May 2016 (“the republication”),[10] the first and second matters complained of have their origin in publications made on or about 4 or 5 June 2014. The plaintiff commenced the proceedings by claim and statement of claim on 26 April 2017, which is a little under three years from 4 or 5 June 2014. The second matter complained of was first pleaded in the amended statement of claim filed on 6 July 2020, more than six years after the matters were posted to Twitter and allegedly to Facebook. This was in circumstances where the plaintiff was aware A Current Affair intended to run a story concerning him. On 1 June 2014, the plaintiff sent an email to aca@nine.com.au which in part stated:“Your information is incorrect and I will pursue all legal avenues to recover damages if you publish untruths about me or my company.”[11][10]Amended Statement of Claim, paras 13 and 14.[11]Affidavit of Conor Edward Austin O’Beirne filed 31 July 2020, Exhibit COB-1.The basis of the summary judgment application The first defendant applies for summary judgment on the basis that the first and second matters complained of are statute barred. In relation to the republication, summary judgement is sought on the basis that the plaintiff does not have any real prospect of succeeding on this claim at trial, as he will be unable to establish that the republication by the second defendant was the “natural and probable consequence of the freely accessible publication of [the first matter complained of] at the Nine Website”.[12][12]Amended Statement of Claim, para 14. Section 10AA of the Limitation of Actions Act 1974 (Qld) provides that an action for defamation “must not be brought after the end of 1 year from the date of the publication of the matter complained of”. Section 32A permits a person claiming to have a cause of action for defamation to apply for an order extending the limitation period to a period of up to three years. The plaintiff did not commence proceedings for either the first or second matters complained of within one year from 4 or 5 June 2014. He has not applied for an extension of time pursuant to s 32A. The first defendant submits that such an application “would inevitably be refused” as the plaintiff was aware of the publication in advance of its broadcast.[13][13]Submissions of First Defendant/Applicant, para 6. Section 32A(2) provides:“A court must, if satisfied that it was not reasonable in the circumstances for the plaintiff to have commenced an action in relation to the matter complained of within 1 year from the date of the publication, extend the limitation period mentioned in section 10AA to a period of up to 3 years from the date of the publication.” The application of this test was considered by Applegarth J in Schoch v Palmer:[14]“[12] The burden is on the applicant for an extension of time to point to circumstances which satisfy the Court that it was not reasonable for him or her to bring proceedings within the limitation period. If that requirement is satisfied there is no discretion to refuse to grant an extension.[13] Only in relatively unusual circumstances will the Court be satisfied that it was not reasonable to commence an action within the one year period. However, a judicial gloss should not be put on the section. An applicant must establish that it was ‘not reasonable’ in the circumstances to have commenced an action within one year from the date of publication, not that it would have been ‘positively unreasonable’ to have done so or to ‘demonstrate affirmatively that he would have acted unreasonably.’[14] The statutory requirement is objective. It is not enough for an applicant to prove a subjective belief that it was not reasonable to bring the proceeding. Still, the phrase ‘not reasonable in the circumstances’ invites inquiry into, and makes relevant, the applicant’s reasons for not commencing proceedings within the limitation period. [15] The circumstances that might give rise to an extension are left at large. Obvious candidates would be cases where an applicant is unaware of the defamatory publication within the limitation period. Other circumstances would be where the applicant is not able to establish the extent of the defamation or is without the evidence necessary to establish his or her case during the year after the publication. As Keane JA observed in Noonan v MacLennan:‘In such cases it might be said that the commencement of proceedings and the incurring of costs would be so disproportionate to the prospects of success or to the quantum of damages which might have been expected to be recoverable as to render the commencement of proceedings unreasonable.’” (Footnotes omitted)[14][2016] QSC 147, [12]-[15].

Ratio Decidendi

Legal Principle Established

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