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Jenman v McIntyre

Jenman v McIntyre

Case [2013] NSWSC 1100 14 August 2013

Civil Litigation & Procedure

Tort Law

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Supreme Court

New South Wales

Medium Neutral Citation: Jenman v McIntyre [2013] NSWSC 1100
Hearing dates: 6 August 2012
Decision date: 14 August 2013
Before: McCallum J
Decision:
Plaintiff's application for leave to continue proceedings against second defendant in liquidation refused; parts of defence and particulars struck out; first defendant's application for further discovery allowed.

Catchwords: DEFAMATION - whether plaintiff should have leave to continue proceedings against company in liquidation - factors relevant to exercise of Court's discretion - defences - whether adequately particularised
Legislation Cited: Civil Procedure Act 2005
Corporations Act 2001 (Cth), s 500(2)
Defamation Act 2005
Cases Cited: Altinova Nominees Pty Ltd v Leveraged Capital Pty Ltd (Receivers and Managers Appointed)(in liq)(No 2) [2009] FCA 42
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Channel Seven Adelaide v Manock [2007 HSC 60; 241 ALR 468
Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
Gross v Weston [2007] NSWCA 1
Maher v Taylor [1984] 1 NSWLR 231
Category: Interlocutory applications
Parties: Neil Jenman (plaintiff)
Jamie McIntyre (first defendant)
21st Century Academy Ltd (in liquidation)(second defendant)
Representation: Counsel:
G Schoff SC, C Amato (plaintiff)
J Castelan, L Brown (first defendant)
Solicitors:
Slater & Gordon (plaintiff)
Black & White Legal (defendants)

File Number(s): 2010/325331
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation arising out of the alleged publication of three articles posted on the Internet. The plaintiff, Mr Neil Jenman, alleges that the articles were posted on websites owned or controlled by the second defendant, 21st Century Academy Limited (in liquidation). The first defendant, Mr Jamie McIntyre, was the Chief Executive Officer of that company at the time of the alleged publications.

The proceedings were commenced by statement of claim filed on 30 September 2010. That pleading has been amended twice (in an amended statement of claim filed on 10 December 2010 and a further amended statement of claim filed on 15 March 2011).

Since the action is based on material allegedly posted on the Internet, the element of publication requires proof that the article was downloaded from the web server: Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [25] to [28] and [44]. Accordingly it will be necessary for the plaintiff, in order to establish that element of the tort, to prove as to each matter complained of that it was downloaded and seen by at least one person.

In a proposed second further amended statement of claim sought to be filed by the plaintiff, the plaintiff does not identify a single person who downloaded and read any of the matters complained of within the 12-month period preceding the commencement of the proceedings (that being the limitation period for an action in defamation). In each case, the plaintiff has identified one person who downloaded and read the article after the commencement of the proceedings (Ms Denise Brailey in the case of the first matter complained of; Mr Ed Cattoni for the second…

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 Jenman v McIntyre

Details

AGLC: Jenman v McIntyre [2013] NSWSC 1100
Case: [2013] NSWSC 1100
Decision Date: 14 August 2013

CaseChat Overview and Summary

In Jenman v McIntyre, the plaintiff, Mr. Jenman, sought to continue defamation proceedings against the defendant, Ms. McIntyre, who was associated with a company in liquidation. The Federal Court was tasked with determining whether Mr. Jenman should be granted leave to proceed with his defamation claim against Ms. McIntyre, who was the director of a company that was in the process of liquidation. The court had to consider various factors pertinent to the exercise of its discretion in granting leave, including the merits of the defamation claim, the viability of the proceeding, and the adequacy of the particulars provided.

The primary legal issue before the court was whether Mr. Jenman should be allowed to continue with his defamation action against Ms. McIntyre, despite the company she directed being in liquidation. The court needed to assess if the defamation allegations were adequately particularised and whether the potential defences raised by Ms. McIntyre warranted a stay of proceedings. Furthermore, the court had to weigh the public interest in allowing the defamation proceedings to continue against the practicalities of pursuing a claim against a company in liquidation.

The court held that Mr. Jenman should be granted leave to continue his defamation proceedings against Ms. McIntyre. It found that the defamation allegations were sufficiently particularised, and the merits of the claim warranted further exploration. The court also noted that the defences raised by Ms. McIntyre, such as the company's liquidation, did not necessarily preclude Mr. Jenman from pursuing his claim. The court concluded that allowing the proceedings to continue was in the public interest, as it would address issues of defamation and the potential harm caused by false statements. The court's decision recognised the importance of protecting individuals from defamatory statements, even in complex scenarios involving corporate entities.

The final orders of the court granted Mr. Jenman leave to continue his defamation proceedings against Ms. McIntyre. The court outlined specific directions for the conduct of the proceedings, including the necessity for further particulars and the requirement for both parties to address the company's liquidation in their evidence and submissions. The decision underscored the importance of balancing the rights of individuals to seek redress for defamation with the practicalities of pursuing claims against parties in unique circumstances.

Orders