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Lynn v Thompson

Lynn v Thompson

Case [2017] NSWDC 296 26 October 2017

Admissibility of Evidence

Civil Litigation & Procedure

Defamation

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District Court

New South Wales

Medium Neutral Citation: Lynn v Thompson [2017] NSWDC 296
Hearing dates: 26 October 2017
Date of orders: 26 October 2017
Decision date: 26 October 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to the plaintiff to interrogate the defendant as to the extent of publication with particular regard to publication to the email address vvaacsheadsup@gmail.com in 7 days.
(2) Defendant’s answers to interrogatories 14 days thereafter.
(3) Imputation 2(c) is struck out as not differing in substance from imputation 2(b).
(4) Imputation 2(d) is struck out.
(5) Note imputation 2(i) differs in substance from imputation 2(b).
(6) Imputation 2(e) is struck out, with the result that no finding needs to be made as to whether imputations 2(e) and 2(f) differ in substance.
(7) Challenge to imputations 2(a) and 2(i) as not differing in substance is dismissed.
(8) Strike out imputation 2(f) with liberty to replead.
(9) Grant leave to replead imputation 2(g) by replacing the word “caused” by “heightened”.
(10) Plaintiff pay the defendant’s costs of the vacating of the proportionality argument (including the costs of 21 September 2017).
(11) Plaintiff pay the defendant’s costs of the r 28.2 Uniform Civil Procedure Rules 2005 (NSW) argument (on capacity) and r 14.30 Uniform Civil Procedure Rules 2005 (NSW) argument (on form) on an ordinary basis.
(12) Amended Statement of Claim in 14 days.
(13) Matter stood over to the Defamation List on Thursday 23 November 2017 at 9:00am (for argument).

Catchwords: TORT – defamation – application to strike out proceedings reliant upon the principles set out in Bleyer v Google Ltd (2014) 88 NSWLR 670 – plaintiff not ready to proceed on two occasions when the matter was listed for hearing – indemnity costs order made – plaintiff seeks orders for interrogatories concerning publication so as to lead evidence in Bleyer v Google Ltd application – leave to interrogate granted – rulings on form and capacity of imputations
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62
Defamation Act 2013 (UK), s 1
Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 28.2
Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Australian Broadcasting Corporation and Anor v Hodgkinson [2005] NSWCA 190
Bleyer v Google Inc (2014) 88 NSWLR 670
Bode v Mundell [2016] EWHC 2533 (QB)
Commissioner of Taxation v Day (2008) 250 ALR 388
Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
Ma Ching Kwan v John Fairfax Publications Pty Ltd (New South Wales Court of Appeal, 30 July 1998, unreported)
Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781
Oshlack v Richmond River Council (1998) 193 CLR 72
Singleton v Ffrench (1986) 5 NSWLR 425
Speight v Gosnay (1891) 55…

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 Lynn v Thompson

Details

AGLC: Lynn v Thompson [2017] NSWDC 296
Case: [2017] NSWDC 296
Decision Date: 26 October 2017

CaseChat Overview and Summary

In the case of Lynn v Thompson, the plaintiff, Lynn, sought damages for defamation against the defendant, Thompson. The plaintiff alleged that Thompson defamed him through various online posts. The matter was heard in the Supreme Court of New South Wales. The legal issues that the court had to determine included whether the plaintiff was ready to proceed with the matter, the form and capacity of the imputations in the Statement of Claim, and whether certain imputations differed in substance from others. Additionally, the court had to decide whether the plaintiff was entitled to interrogatories to assist in a Bleyer v Google Ltd application.
The court found that the plaintiff had not been ready to proceed on two occasions when the matter was listed for hearing, resulting in an indemnity costs order against the plaintiff. The court granted leave to the plaintiff to interrogate the defendant about the extent of publication, specifically regarding an email address. The court struck out certain imputations as they did not differ in substance from others, and noted that some imputations did differ. The plaintiff was ordered to pay the defendant's costs for various arguments, and the matter was stood over for further argument. The plaintiff was also required to file an amended Statement of Claim within 14 days.

Orders

Orders of the court

(1) Grant leave to the plaintiff to interrogate the defendant as to the extent of publication with particular regard to publication to the email address vvaacsheadsup@gmail.com in 7 days.

(2) Defendant’s answers to interrogatories 14 days thereafter.

(3) Imputation 2(c) is struck out as not differing in substance from imputation 2(b).

(4) Imputation 2(d) is struck out.

(5) Note imputation 2(i) differs in substance from imputation 2(b).

(6) Imputation 2(e) is struck out, with the result that no finding needs to be made as to whether imputations 2(e) and 2(f) differ in substance.

(7) Challenge to imputations 2(a) and 2(i) as not differing in substance is dismissed.

(8) Strike out imputation 2(f) with liberty to replead.

(9) Grant leave to replead imputation 2(g) by replacing the word “caused” by “heightened”.

(10) Plaintiff pay the defendant’s costs of the vacating of the proportionality argument (including the costs of 21 September 2017).

(11) Plaintiff pay the defendant’s costs of the r 28.2 Uniform Civil Procedure Rules 2005 (NSW) argument (on capacity) and r 14.30 Uniform Civil Procedure Rules 2005 (NSW) argument (on form) on an ordinary basis.

(12) Amended Statement of Claim in 14 days.

(13) Matter stood over to the Defamation List on Thursday 23 November 2017 at 9:00am (for argument).

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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Citations

AGLC Citation

Lynn v Thompson [2017] NSWDC 296

Cases citing this decision · 0 of 0 shown

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Cases cited in this decision · 16 of 16 shown

Goodfellow v Fairfax Media Publications Pty Ltd
[2017] FCA 1152 Para 22

…ing decisions on this issue as a result of recent decisions in the Federal Court of Australia. In Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 at [52] – [60] Wigney J, ruling on a series of imputations using this word (for example, that the applicant, a police officer, “improperly caused a n…
Farrow v Nationwide News Pty Ltd
[2017] NSWCA 246 Para 2

…oceedings on the principles set out in Bleyer v Google Inc (2014) 88 NSWLR 670 (as recently endorsed by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5]) and pursuant to s 60 Civil Procedure Act 2005 (NSW).…
Murphy v Nationwide News Pty Ltd (No 2)
[2017] FCA 781 Para 24

…Kwan v John Fairfax Publications Pty Ltd was followed by the Federal Court of Australia in Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 and relied upon to strike out the word “inappropriately” on the basis that it was similarly flawed (see similar observations by Rothman J in Ultrasonic Slimming Pty Lt…
Bleyer v Google Inc
[2014] NSWSC 897 Para 2

…An application for summary dismissal of the proceedings on the principles set out in Bleyer v Google Inc (2014) 88 NSWLR 670 (as recently endorsed by Basten JA in Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 at [5]) and pursuant to s 60 Civil Procedure Act 2005 (NSW).…
Toben v Milne
[2014] NSWCA 200 Para 17

…itted that a plaintiff could plead an imputation of condition in precise form and then plead an imputation in more general form, citing Toben v Milne [2014] NSWCA 200 at [13]:…
Dank v Cronulla-Sutherland District Rugby League Football Club
[2013] NSWSC 1101 Para 10

…This is a different publication problem to that encountered by McCallum J in Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101, where her Honour formulated the interrogatories at paragraph 29 in circumstances where there was doubt about whether the defendant had published the matter co…
Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd
[2013] NSWSC 1987 Para 24

…was similarly flawed (see similar observations by Rothman J in Ultrasonic Slimming Pty Ltd v Fairfax Media Publications Pty Ltd [2013] NSWSC 1987 at [24] – [27]). These rulings should all be viewed in the same light, as Wigney J was not taken to the relevant authorities when determining these issues.…
Habib v Radio 2UE Sydney Pty Ltd
[2009] NSWCA 231 Para 3

…s to whether these are publications sued upon as causes of action or merely as going to damages (as to which see Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231). In addition, issues such as “the grapevine effect” which go to damages, should not be included in the particulars of publication.…
Commissioner of Taxation v Day
[2008] HCA 53 Para 24

…v Hodgkinson [2005] NSWCA 190), and despite the word “improper” having a statutory use (see, for example, Commissioner of Taxation v Day (2008) 250 ALR 388), which may give rise to the kind of ambiguity of meaning which fatally doomed the trial in Singleton v Ffrench (1986) 5 NSWLR 425, Wigney J refused to strike th…
John Fairfax Publications Pty Ltd v Hitchcock
[2007] NSWCA 364

…“[13] An example of the application of the ‘test’ articulated by Hunt J is to be found in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; 70 NSWLR 484. In that case, McColl JA held that the imputation that the plaintiff had gate crashed a social function knowing she was not invited was different in…
Australian Broadcasting Corporation v Hodgkinson
[2005] NSWCA 190 Para 24

…ch as “improper”. Despite decisions of the New South Wales Court of Appeal (such as Australian Broadcasting Corporation and Anor v Hodgkinson [2005] NSWCA 190), and despite the word “improper” having a statutory use (see, for example, Commissioner of Taxation v Day (2008) 250 ALR 388), which may give rise to the ki…
Amalgamated Television Services v Marsden
[1999] NSWCA 319 Para 21

…on 2(g) was reworded during argument, by reason of the word “caused” being a “weasel word”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt J.…
Amalgamated Television Services Pty Ltd v Marsden
[1998] NSWCA 13 Para 21

…I also note that imputation 2(g) was reworded during argument, by reason of the word “caused” being a “weasel word”: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 per Hunt J.…
Oshlack v Richmond River Council
[1998] HCA 11 Para 27

…order for indemnity costs requires an significant departure from the obligation of a litigant to conduct litigation in a speed and efficient manner ( Oshlack v Richmond River Council (1998) 193 CLR 72). In the present case, Mr Rasmussen pointed to the following factors as being relevant:…
[2005] QB 946
[2005] QB 946 Para 8

…nt issue in any application for summary dismissal, and not merely in an application based on Jameel principles ( Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946). In Bode v Mundell [2016] EWHC 2533 (QB), Warby J noted as an alternative finding to the question of serious harm that the proceedings would have ha…
Singleton v Ffrench
125 ER 1034 Para 24

…v Day (2008) 250 ALR 388), which may give rise to the kind of ambiguity of meaning which fatally doomed the trial in Singleton v Ffrench (1986) 5 NSWLR 425, Wigney J refused to strike this word out. A challenge to the word “wrongly” was also dismissed, despite the New South Wales Court of Appeal’s decision in Ma Chi…

Legislation cited in this decision · 4

Uniform Civil Procedure Rules 2005 (NSW)
14.30, 28.2 3 mentions (from Para 1)
Civil Procedure Act 2005 (NSW)
56 2 mentions (from Para 2)
Defamation Act 2013
1 2 mentions (from Para 8)
Firebelt Pty Ltd v Brambles Australia Ltd
1 2 mentions (from Para 8)

Medium Neutral Citation:	Lynn v Thompson [2017] NSWDC 296
Hearing dates:	26 October 2017
Date of orders:	26 October 2017
Decision date:	26 October 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to the plaintiff to interrogate the defendant as to the extent of publication with particular regard to publication to the email address vvaacsheadsup@gmail.com in 7 days. (2) Defendant’s answers to interrogatories 14 days thereafter. (3) Imputation 2(c) is struck out as not differing in substance from imputation 2(b). (4) Imputation 2(d) is struck out. (5) Note imputation 2(i) differs in substance from imputation 2(b). (6) Imputation 2(e) is struck out, with the result that no finding needs to be made as to whether imputations 2(e) and 2(f) differ in substance. (7) Challenge to imputations 2(a) and 2(i) as not differing in substance is dismissed. (8) Strike out imputation 2(f) with liberty to replead. (9) Grant leave to replead imputation 2(g) by replacing the word “caused” by “heightened”. (10) Plaintiff pay the defendant’s costs of the vacating of the proportionality argument (including the costs of 21 September 2017). (11) Plaintiff pay the defendant’s costs of the r 28.2 Uniform Civil Procedure Rules 2005 (NSW) argument (on capacity) and r 14.30 Uniform Civil Procedure Rules 2005 (NSW) argument (on form) on an ordinary basis. (12) Amended Statement of Claim in 14 days. (13) Matter stood over to the Defamation List on Thursday 23 November 2017 at 9:00am (for argument).
Catchwords:	TORT – defamation – application to strike out proceedings reliant upon the principles set out in Bleyer v Google Ltd (2014) 88 NSWLR 670 – plaintiff not ready to proceed on two occasions when the matter was listed for hearing – indemnity costs order made – plaintiff seeks orders for interrogatories concerning publication so as to lead evidence in Bleyer v Google Ltd application – leave to interrogate granted – rulings on form and capacity of imputations
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Defamation Act 2013 (UK), s 1 Uniform Civil Procedure Rules 2005 (NSW), rr 14.30 and 28.2
Cases Cited:	Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Australian Broadcasting Corporation and Anor v Hodgkinson [2005] NSWCA 190 Bleyer v Google Inc (2014) 88 NSWLR 670 Bode v Mundell [2016] EWHC 2533 (QB) Commissioner of Taxation v Day (2008) 250 ALR 388 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Farrow v Nationwide News Pty Ltd [2017] NSWCA 246 Goodfellow v Fairfax Media Publications Pty Limited [2017] FCA 1152 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946 Ma Ching Kwan v John Fairfax Publications Pty Ltd (New South Wales Court of Appeal, 30 July 1998, unreported) Murphy v Nationwide News Pty Ltd (No 2) [2017] FCA 781 Oshlack v Richmond River Council (1998) 193 CLR 72 Singleton v Ffrench (1986) 5 NSWLR 425 Speight v Gosnay (1891) 55…