Hughes v ISPT Pty Ltd - [2009] NSWDC 101

CITATION: Hughes v ISPT Pty Ltd [2009] NSWDC 101

HEARING DATE(S): 6 February, 6 March 2009 (submissions to 10 March)

JUDGMENT DATE:
30 April 2009

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Second defendant’s application to refuse leave to amend and to strike out statement of claim for inadequate particulars dismissed.
(2) Grant leave to the plaintiff to commence proceedings out of time pursuant to s 56A Limitation Act 1969 to 11 December 2008 in relation to the causes of action set out in paragraphs 12 and 13 of the proposed amended statement of claim attached to the affidavit of Timothy Lam sworn 11 December 2008, and deem the filing of this affidavit as sufficient to comply with the requirements for filing of the amended statement of claim
(3) Plaintiff pay the defendants’ costs of the defendants' motions, the directions hearings of 5 and 12 December 2008 and the argument on 6 February and 6 March 2009 and any other costs thrown away by reason of the amendments.
(4) Second defendant’s application for such costs to be payable forthwith dismissed.
(5) Parties have leave to bring in short minutes of order for a timetable for these proceedings.

CATCHWORDS: Tort - defamation - adequacy of particularisation of publication - application for summary judgment refused - limitation - letter handed by defendant to plaintiff subsequently discovered to have been published to third parties - application for leave to commence out of time granted

LEGISLATION CITED: Limitation Act 1969 (NSW), ss 14B and 56A
Civil Procedure Act 2005 (NSW), ss 56-62 and 65

CASES CITED: Allister v Martindale (Supreme Court of Western Australia, Kennedy, Rowland and Owen JJ, 29 November 1995, unreported)
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Borella v Penfolds Wines Pty Ltd (1992) 7 WAR 492
Cretazzo v Lombardi (1975) 13 SASR 4
Ford v Nagle [2004] NSWCA 33
Goldberg v Randel (No 2) [2008] NSWDC 283
Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 166
Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188
McDonald’s Corporation v Steel [1995] 3 All ER 615
Pacific Acceptance Corp Ltd v Thompson [1963] NSWR 56
Paquette v Cruji (1970) 26 OR (2d) 294
Peck v la Valley [1929] 2 DLR 370
Vitale v Bednall [2000] WASC 207
Webb v Bloch (1928) 41 CLR 331

TEXTS CITED: Gatley on Libel and Slander, 11th ed.

PARTIES: Plaintiff: Tanjhena Hughes
First Defendant: ISPT Pty Ltd (ACN 064 041 283)
Second Defendant: Jones Lang Lasalle (NSW) Pty Ltd (ACN 002 851 925)
Third Defendant: Australian Independent Retailers Pty Ltd (ACN 004 678 675) trading as Big W

FILE NUMBER(S): 3945 of 2008

COUNSEL: Plaintiff: Mr R Rasmussen
First Defendant: Mr A T S Dawson
Second Defendant: Mr C Bova
Third Defendant: Mr P Biggins

SOLICITORS: Plaintiff: Etheringtons Solicitors
First Defendant: Colin Biggers and Paisley Lawyers
Second Defendant: Marque Lawyers
Third Defendant: Dibbs Abbott Stillman Lawyers

Judgment

Introduction

[1] This is an application by the defendant to strike out the statement…

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 Hughes v ISPT Pty Ltd

Details

AGLC: Hughes v ISPT Pty Ltd [2009] NSWDC 101
Case: [2009] NSWDC 101
Decision Date: 30 April 2009

CaseChat Overview and Summary

Hughes sued ISPT Pty Ltd, alleging defamation. The dispute centered on a letter, which Hughes claimed was defamatory, and had been sent by ISPT to Hughes. This letter was later found to have been published to third parties. The matter was heard in the Supreme Court of Victoria.

The court had to decide if the plaintiff had adequately described the defamatory publication and if the proceedings could be commenced out of time. The defendants argued that the plaintiff's particulars were insufficient and that the proceedings should be barred by limitation. The plaintiff argued that the publication was not only to him but also to third parties, and sought leave to amend the statement of claim and to commence the proceedings out of time.

The court found that the plaintiff's particulars were sufficient and dismissed the defendants' application to refuse leave to amend and to strike out the statement of claim. The court held that the limitation period could be extended as the plaintiff had acted promptly in discovering the publication to third parties and sought leave to commence out of time. The court granted leave to the plaintiff to commence proceedings out of time and ordered the plaintiff to pay the defendants' costs.

The court dismissed the second defendant's application for the costs to be paid forthwith. The parties were granted leave to bring in short minutes of order for a timetable for the proceedings.

Orders

Orders of the court

(1) Second defendant's application to refuse leave to amend and to strike out statement of claim for inadequate particulars dismissed. (2) Grant leave to the plaintiff to commence proceedings out of time pursuant to s 56A Limitation Act 1969 to 11 December 2008 in relation to the causes of action set out in paragraphs 12 and 13 of the proposed amended statement of claim attached to the affidavit of Timothy Lam sworn 11 December 2008, and deem the filing of this affidavit as sufficient to comply with the requirements for filing of the amended statement of claim (3) Plaintiff pay the defendants' costs of the defendants' motions, the directions hearings of 5 and 12 December 2008 and the argument on 6 February and 6 March 2009 and any other costs thrown away by reason of the amendments. (4) Second defendant's application for such costs to be payable forthwith dismissed. (5) Parties have leave to bring in short minutes of order for a timetable for these proceedings.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Hughes v ISPT Pty Ltd [2009] NSWDC 101
HEARING DATE(S):	6 February, 6 March 2009 (submissions to 10 March)
JUDGMENT DATE:	30 April 2009
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Second defendant’s application to refuse leave to amend and to strike out statement of claim for inadequate particulars dismissed. (2) Grant leave to the plaintiff to commence proceedings out of time pursuant to s 56A Limitation Act 1969 to 11 December 2008 in relation to the causes of action set out in paragraphs 12 and 13 of the proposed amended statement of claim attached to the affidavit of Timothy Lam sworn 11 December 2008, and deem the filing of this affidavit as sufficient to comply with the requirements for filing of the amended statement of claim (3) Plaintiff pay the defendants’ costs of the defendants' motions, the directions hearings of 5 and 12 December 2008 and the argument on 6 February and 6 March 2009 and any other costs thrown away by reason of the amendments. (4) Second defendant’s application for such costs to be payable forthwith dismissed. (5) Parties have leave to bring in short minutes of order for a timetable for these proceedings.
CATCHWORDS:	Tort - defamation - adequacy of particularisation of publication - application for summary judgment refused - limitation - letter handed by defendant to plaintiff subsequently discovered to have been published to third parties - application for leave to commence out of time granted
LEGISLATION CITED:	Limitation Act 1969 (NSW), ss 14B and 56A Civil Procedure Act 2005 (NSW), ss 56-62 and 65
CASES CITED:	Allister v Martindale (Supreme Court of Western Australia, Kennedy, Rowland and Owen JJ, 29 November 1995, unreported) Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Borella v Penfolds Wines Pty Ltd (1992) 7 WAR 492 Cretazzo v Lombardi (1975) 13 SASR 4 Ford v Nagle [2004] NSWCA 33 Goldberg v Randel (No 2) [2008] NSWDC 283 Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir R 166 Lazarus v Deutche Lufthansa AG (1985) 1 NSWLR 188 McDonald’s Corporation v Steel [1995] 3 All ER 615 Pacific Acceptance Corp Ltd v Thompson [1963] NSWR 56 Paquette v Cruji (1970) 26 OR (2d) 294 Peck v la Valley [1929] 2 DLR 370 Vitale v Bednall [2000] WASC 207 Webb v Bloch (1928) 41 CLR 331
TEXTS CITED:	Gatley on Libel and Slander, 11th ed.
PARTIES:	Plaintiff: Tanjhena Hughes First Defendant: ISPT Pty Ltd (ACN 064 041 283) Second Defendant: Jones Lang Lasalle (NSW) Pty Ltd (ACN 002 851 925) Third Defendant: Australian Independent Retailers Pty Ltd (ACN 004 678 675) trading as Big W
FILE NUMBER(S):	3945 of 2008
COUNSEL:	Plaintiff: Mr R Rasmussen First Defendant: Mr A T S Dawson Second Defendant: Mr C Bova Third Defendant: Mr P Biggins
SOLICITORS:	Plaintiff: Etheringtons Solicitors First Defendant: Colin Biggers and Paisley Lawyers Second Defendant: Marque Lawyers Third Defendant: Dibbs Abbott Stillman Lawyers