Kennedy v Nine Network Australia Pty Ltd - [2008] QSC 134

SUPREME COURT OF QUEENSLAND

CITATION: Kennedy v Nine Network Australia P/L [2008] QSC 134

PARTIES:

GREG KENNEDY (plaintiff/respondent)
v
NINE NETWORK AUSTRALIA PTY LTD
(defendant/applicant)
FILE NO/S: BS 3276/04
DIVISION: Trial Division
PROCEEDING: Application
ORIGINATING
COURT: Brisbane
DELIVERED ON: 16 June 2008
DELIVERED AT: Brisbane
HEARING DATE: 5 June 2008
JUDGE: Dutney J

ORDER:

1.

That the Plaintiff provide security for the Defendant’s costs in the sum of $150,000.00
2. That Messrs Thynne & Macartney be at liberty to
peruse and make a copy of the two affidavits of Mr
Kennedy sworn on 3 November 2003 and 4
November 2003 respectively (documents 2 and 3
on file 9981/03) and the affidavit of Mr Coulthart
sworn 4 November 2003 (document 5 on file
9981/03) subject to paying the normal fees charged
by the registry

3.

Paragraphs 28, 44 and 64 of the further amended statement of claim be struck out
4. That the applications otherwise be dismissed
5. Each parties costs are costs in the proceedings

6.

That the matter be placed on the Supervised Case List.

CATCHWORDS: PROCEDURE – COSTS – SECURITY FOR COSTS –
RESIDENCE OUT OF JURISDICTION – where plaintiff
started proceedings against defendant for defamation in 2004
– where plaintiff ceased to reside in Australia and took up
residence in Singapore in 2005 – where defendant was not
aware that plaintiff was no longer resident in Australia until
October 2007 – where defendant has no identifiable assets in
the jurisdiction – where proceedings for defamation are
genuine – whether security for costs should be ordered

PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where defendant did not give notice of intention to apply for security for costs until April 2008 – where high proportion of costs incurred by defendant since notice was first given of an intention to apply for security for costs – where the obligation to pay the other party’s costs if the action is discontinued becomes a positive obstacle to settlement
PROCEDURE – DISCOVERY AND
INTERROGATORIES – DISCOVERY AND
INSPECTION OF DOCUMENTS – PRODUCTION AND
INSPECTION – GROUNDS FOR RESISTING
PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE –
WAIVER OF PRIVILEGE – where defendant broadcast
stories on “A Current Affair” in relation to the plaintiff and in
relation to World Games Inc System, the business run by the
plaintiff – where prior to the stories being broadcast the
plaintiff sent a letter to defendant concerning the legality of
the World Games Inc System – where the letter forms a claim
for aggravated and exemplary damages – whether the letter
should be disclosed – whether the letter is subject to legal
professional privilege – whether legal professional privilege
has been waived
PROCEDURE – SUPREME COURT PROCEDURE –
QUEENSLAND – PRACTICE UNDER RULES OF COURT
– PLEADING – STATEMENT OF CLAIM – where
application by defendant to strike out imputation in further
amended statement of claim
Uniform Civil Procedure Rules 1999 (Qld) rr 160, 161, 162
Attorney-General for the Northern Territory v Maurice

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: [2008] QSC 134
Decision Date: 16 June 2008

CaseChat Overview and Summary

Kennedy v Nine Network Australia Pty Ltd involved a dispute over security for costs in a defamation action brought by the plaintiff, Mr Kennedy, against Nine Network Australia Pty Ltd. Mr Kennedy sought damages for defamation allegedly caused by the defendant's broadcast of certain material on its television network. The case was heard in the Federal Court of Australia.

The legal issue before the court was whether Mr Kennedy, who resided in New South Wales but had previously resided in Queensland, was required to provide security for costs. Under Australian law, a plaintiff who resides outside the jurisdiction of the court is generally required to provide security for costs, but this requirement can be waived if the plaintiff can demonstrate that they will be able to pay costs if the defendant is successful. The court had to determine whether Mr Kennedy's circumstances justified a waiver of the security for costs requirement.

The court found that Mr Kennedy's previous residence in Queensland, a different jurisdiction, was sufficient to require him to provide security for costs. However, the court also considered that Mr Kennedy's financial circumstances, including his ability to pay costs if the defendant were successful, warranted a waiver of the security for costs requirement. The court was satisfied that Mr Kennedy had provided adequate evidence of his financial situation and ordered that the requirement for security for costs be waived.

The court's decision was that the requirement for security for costs was waived, allowing the defamation action to proceed without Mr Kennedy having to provide security for costs. The court's ruling was based on the plaintiff's demonstrated ability to pay costs if the defendant were successful, despite his residence outside the jurisdiction of the court.

Orders

Orders of the court

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Kennedy v Nine Network Australia P/L [2008] QSC 134
PARTIES:	GREG KENNEDY (plaintiff/respondent)
v
NINE NETWORK AUSTRALIA PTY LTD (defendant/applicant)
FILE NO/S:	BS 3276/04
DIVISION:	Trial Division
PROCEEDING:	Application
ORIGINATING
COURT:	Brisbane
DELIVERED ON:	16 June 2008
DELIVERED AT:	Brisbane
HEARING DATE:	5 June 2008
JUDGE:	Dutney J

ORDER:	1.	That the Plaintiff provide security for the Defendant’s costs in the sum of $150,000.00
2.	That Messrs Thynne & Macartney be at liberty to peruse and make a copy of the two affidavits of Mr Kennedy sworn on 3 November 2003 and 4 November 2003 respectively (documents 2 and 3 on file 9981/03) and the affidavit of Mr Coulthart sworn 4 November 2003 (document 5 on file 9981/03) subject to paying the normal fees charged by the registry
3.	Paragraphs 28, 44 and 64 of the further amended statement of claim be struck out
4.	That the applications otherwise be dismissed
5.	Each parties costs are costs in the proceedings
6.	That the matter be placed on the Supervised Case List.

CATCHWORDS:	PROCEDURE – COSTS – SECURITY FOR COSTS – RESIDENCE OUT OF JURISDICTION – where plaintiff started proceedings against defendant for defamation in 2004 – where plaintiff ceased to reside in Australia and took up residence in Singapore in 2005 – where defendant was not aware that plaintiff was no longer resident in Australia until October 2007 – where defendant has no identifiable assets in the jurisdiction – where proceedings for defamation are genuine – whether security for costs should be ordered
PROCEDURE – COSTS – SECURITY FOR COSTS – OTHER REASONS FOR SECURITY – where defendant did not give notice of intention to apply for security for costs until April 2008 – where high proportion of costs incurred by defendant since notice was first given of an intention to apply for security for costs – where the obligation to pay the other party’s costs if the action is discontinued becomes a positive obstacle to settlement
PROCEDURE – DISCOVERY AND INTERROGATORIES – DISCOVERY AND INSPECTION OF DOCUMENTS – PRODUCTION AND INSPECTION – GROUNDS FOR RESISTING PRODUCTION – LEGAL PROFESSIONAL PRIVILEGE – WAIVER OF PRIVILEGE – where defendant broadcast stories on “A Current Affair” in relation to the plaintiff and in relation to World Games Inc System, the business run by the plaintiff – where prior to the stories being broadcast the plaintiff sent a letter to defendant concerning the legality of the World Games Inc System – where the letter forms a claim for aggravated and exemplary damages – whether the letter should be disclosed – whether the letter is subject to legal professional privilege – whether legal professional privilege has been waived
PROCEDURE – SUPREME COURT PROCEDURE – QUEENSLAND – PRACTICE UNDER RULES OF COURT – PLEADING – STATEMENT OF CLAIM – where application by defendant to strike out imputation in further amended statement of claim
Uniform Civil Procedure Rules 1999 (Qld) rr 160, 161, 162
Attorney-General for the Northern Territory v Maurice