THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION Defamation List
SIMPSON J
2 June 1999
20601/95
Raymond HOSER v Christopher HARTCHER JUDGMENT
HER HONOUR :
1 By notice of motion filed on 11 December 1998 the defendant seeks an order that the statement of claim filed on 28 June 1995 be struck out for want of prosecution. In the statement of claim the plaintiff claims damages for alleged defamation arising out of the publication by the defendant of a media release issued on or about 30 December 1993 - that is, a year and a half before the statement of claim was issued. 2 By way of background, it appears that the plaintiff was the author of a book titled “Smuggling” which was published in or about May 1993. Possibly as a result of the publication of the book and the allegations contained therein, the Independent Commission Against Corruption (ICAC) investigated allegations of corruption within the National Parks and Wildlife Service (“NPWS”) and within the kangaroo meat industry. Some of the allegations related to events said to have occurred in the 1970’s and 1980’s. 3 Shortly before the publication of the media release ICAC reported on the result of its investigation, and it was this report that prompted the media release. The release was headed: “ICAC Clears National Parks and Wildlife Service”. 4 The text of the release was as follows: “The Independent Commission Against Corruption has cleared the NSW National Parks and Wildlife Service of allegations relating to corruption within the kangaroo meat industry.
After a four month investigation which covered several states, the ICAC stated, ‘Commission inquiries have failed to reveal any evidence of corrupt conduct by NPWS officers.’ The inquiry was called by the Director General of the NPWS in June 1993 to answer bizarre allegations made in June 1993 relating to various officers’ involvement in certain activities in wild life smuggling and the meat industry. On hearing the finding, NSW Minister for the Environment Mr Chris Hartcher, said ‘False accusations such as those made by Mr Hoser detract from the excellent work being carried out by the NPWS in the management and protection of the State’s native wildlife. ‘The high standard of work and the good reputation of the NPWS in carrying out its responsibilities in wildlife management made it very unlikely that there had been improper action by Service officers. I applaud the ICAC’s findings and hope now that the NPWS can continue its work…
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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AGLC
Hoser v Hartcher [1999] NSWSC 527
Case
[1999] NSWSC 527
Decision Date
CaseChat Overview and Summary
In the case of Raymond HOSER v Christopher HARTCHER, the defendant sought an order that the plaintiff's statement of claim be struck out for want of prosecution. The plaintiff had alleged defamation arising from a media release issued by the defendant, who was the NSW Minister for the Environment at the time. The defendant argued that the passage of time and the death or movement of potential witnesses had prejudiced his defence, and that the plaintiff's personal blamelessness and the lack of activity on his part were relevant factors. The plaintiff, on the other hand, argued that his former solicitors had deceived him and failed to take proper steps to progress the matter, and that he had always wished to prosecute the claim to vindicate his reputation.
The court considered the principles relevant to the exercise of the discretion to strike out for want of prosecution, including the ultimate question of whether, on balancing the prejudice to the respective parties, justice demanded that the action be dismissed. The court found that the defendant had not made the necessary and appropriate inquiries, investigations, and preparations at or shortly after the time he was served with the statement of claim, and that his present complaints of prejudice could not be given significant weight. The court also found that the plaintiff had at all times maintained his interest in and determination to pursue his rights, and that the evidence did not show that the plaintiff had been shown to be not genuinely interested in the claim.
The court concluded that, if the defendant was prejudiced, it was because of his own inactivity immediately following service of the statement of claim. The court also found that the fact that the plaintiff could, if the order were made, recommence his claim was a matter it should and did take into account, but it was not decisive. The court was satisfied that the interests of justice would not be met by striking out the statement of claim, and the notice of motion was dismissed.