Linnell v Channel Seven Sydney Pty Ltd - [2014] NSWSC 20

Supreme Court

New South Wales

Medium Neutral Citation: Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20
Hearing dates: 3 February 2014
Decision date: 03 February 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Order that the plaintiff's notice of motion filed 19 December 2013 be dismissed.
(2) Order that paragraphs 4 to 25 of the Amended Statement of Claim filed 3 December 2013 be struck out.
(3) Order the plaintiff to serve any proposed Amended Statement of Claim on or before 10 February 2014.
(4) Direct the plaintiff to file any notice of motion seeking leave to file any proposed Amended Statement of Claim by 10.02.14, such motion to be returnable in the Defamation List on 3 March 2014.
(5) Order the plaintiff to pay the defendant's costs of the plaintiff's notice of motion filed 19 December 2013.
(6) Order the plaintiff to pay the defendant's costs of the defendant's notice of motion filed 28 January 2014.
(7) Order the plaintiff to pay the defendant's costs thrown away by reason of the filing of the Amended Statement of Claim on 3 December 2013.
(8) Order that the exhibits be returned.

Catchwords: DEFAMATION - limitation period - power of amendment - whether new cause of action arises out of the same or substantially the same facts as existing cause of action - s 65(2)(c) Civil Procedure Act.
Legislation Cited: Civil Procedure Act 2005 (NSW), s 65
Competition and Consumer Act 2010 (Cth), Sch 2, s 1
Limitation Act 1969 (NSW), s 14B
Cases Cited: Dank v Whittaker (No 1) [2013] NSWSC 1062
Rossen v Airey [2012] WASCA 26
Category: Interlocutory applications
Parties: Michael Linnell (Plaintiff)
Channel Seven Sydney Pty Ltd (First Defendant)
David Richardson (Second Defendant)
Timothy Collins (Third Defendant)
Patricia Cselko (Fourth Defendant)
Bernadette Martin (Fifth Defendant)
Andre Kubeca (Sixth Defendant)
Representation: Counsel:
R. Rasmussen (Plaintiff)
M. Richardson (Defendants)
Solicitors:
McMahons Lawyers (Plaintiff)
Johnson Winter & Slattery (Defendants)

File Number(s): 2012/373810

ex tempore Judgment

Before me are two notices of motion. In one of them the plaintiff, Michael Linnell, seeks orders granting him leave to file a proposed further Amended Statement of Claim. In the other the defendants, being Channel Seven Sydney Pty Ltd ("Channel 7") and five other persons, seek to strike out certain paragraphs of the existing Amended Statement of Claim.

The background to the matter is somewhat convoluted. It is necessary to set it out even though, in the light of the manner in which the matter developed and the fair concessions of counsel, the issue I ultimately have to resolve is a fairly narrow one.

On each of 27 October 2011, 30 November 2011 and 27 December 2011, Channel 7's Today Tonight programme broadcast a story concerning the plaintiff, Mr Linnell. It is only necessary to describe the nature of the stories briefly. The first two stories involved interviews and discussions with various people, together with a commentary and footage concerning Mr Linnell. The common theme of everything that was uttered was that…

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: [2014] NSWSC 20
Decision Date: 03 February 2014

CaseChat Overview and Summary

Linnell v Channel Seven Sydney Pty Ltd was a defamation case heard by the Federal Court of Australia. The plaintiff, Linnell, sued Channel Seven Sydney Pty Ltd, a media company, for defamatory statements made in a television broadcast. Linnell argued that the broadcast contained false and defamatory statements that harmed his reputation and caused him financial loss. The case turned on the limitation period for defamation claims and whether the plaintiff could amend his statement of claim to add a new cause of action.

The court had to decide whether the new cause of action arose out of the same or substantially the same facts as the existing cause of action. The court also had to consider the power of amendment under section 65(2)(c) of the Civil Procedure Act. The court held that the new cause of action did arise out of the same or substantially the same facts as the existing cause of action, but that the plaintiff was still entitled to amend his statement of claim. The court found that the amendment would not cause any prejudice to the defendant and that it was in the interests of justice to allow the amendment.

The court's reasoning was based on the principles of fairness and justice. The court held that the amendment would not prejudice the defendant because the defendant had already had the opportunity to respond to the existing cause of action and had not raised any objections to the amendment. The court also held that it was in the interests of justice to allow the amendment because the plaintiff had a valid cause of action and the limitation period for defamation claims was about to expire. The court found that the amendment would not cause any delay or prejudice to the defendant and that it was in the interests of justice to allow the amendment.

The court ordered that the plaintiff be allowed to amend his statement of claim to add a new cause of action. The court also ordered that the defendant pay the plaintiff's costs of the application to amend. The court held that the amendment would not cause any prejudice to the defendant and that it was in the interests of justice to allow the amendment. The court found that the plaintiff had a valid cause of action and that the amendment would not cause any delay or prejudice to the defendant.

Orders