McVicker v Australian Broadcasting Corporation - [2023] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION: McVicker v Australian Broadcasting Corporation [2023] QDC 167

PARTIES:

ROBERT MCVICKER

(Plaintiff/Respondent) v

AUSTRALIAN BROADCASTING CORPORATION

(Defendant/Respondent)

FILENO:

1542/22

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVEREDON:

22 August 2023 (ex tempore, revised from transcript)

DELIVEREDAT:

Brisbane

HEARINGDATE:

22 August 2023

JUDGE:

Andreatidis KC DCJ

ORDER:

1.   Pages 3-9 of exhibit 1 of the affidavit of Nicole Neal, sworn 19 June 2023, stand as the pleadings, being the further amended statement of claim.

2.   Summary judgment is granted to dismiss any claim for defamation from 1 July 2021.

3.   The summary judgment application is otherwise dismissed.

4.   The defendant have leave to amend the application to include an application for a permanent stay on the basis of an abuse of process.

5.   The application for a stay of the proceedings as an abuse of process is dismissed.

6.   The application to strikeout paragraphs 3A, 6, 13A and 14 of the further amended statement of claim is granted.

7.   The plaintiff have leave to amend paragraphs 3A, 6, 13A and 14 of the further amended statement of claim.

8.   The plaintiff is to file and serve the second further amended statement of claim by 19 September 2023.

9.   The defendant is to file and serve any amended defence by 17 October 2023.

10. The plaintiff is to file and serve any reply by 31 October 2023.

11. The proceeding be listed for further review before Judge Andreatidis KC at 9:30am on 3 November 2023.

12. The defendant pay the plaintiff’s costs in respect of the appearance on 19 June 2023 on the standard basis. Otherwise order that the plaintiff pay the defendant’s costs of an incidental to the application, but 50% of those costs.

CATCHWORDS:

PRACTICE – DEFAMATION – SUMMARY JUDGMENT – STRIKE      OUT      –      LIMITATION      PERIOD      –

PROPORTIONALITY   –    principle    of   proportionality    – whether the principle of proportionality applies in Queensland

– if the principle of proportionality applies, should the discretion be exercised

LEGISLATION

Civil Proceedings Act 2005 (NSW) s 60

Defamation    (Model    Provisions)    and    Other    Legislation Amendment Act 2021 (Qld)

Defamation Act 2005 (Qld), ss 10A, 10AB, 33

District Court Act 1967 (Qld)

Human Rights Act 2019 (Qld) s 25

Limitation of Actions Act 1974 (Qld), ss 10AA, 10AB, 50.

Uniform Civil Procedure Rules, rr 5, 171, 293, sch 3

CASES

Baker v Dubickas [2021] QDC 198

Bleyer v Google Inc (2014) 88 NSWLR 670

Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91 Dow Jones & Company Inc v Gutnick (2002) 210, CLR 575 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595

Gray v Morris [2004] 2 Qd R 118

Ingram v Ingram [2022] NSWDC 653

Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946

Rock v Henderson [2021] NSWCA 155

Smith v Lucht [2014] QDC 302

Smits v Cugola [2022] QCA 262

Wardley Australia Limited v Western Australia (1992) 175 CLR 514

Watney…

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: [2023] QDC 167
Decision Date: 22 August 2023 (ex tempore, revised from transcript)

CaseChat Overview and Summary

McVicker v Australian Broadcasting Corporation involved a defamation claim brought by the plaintiff, McVicker, against the defendant, Australian Broadcasting Corporation (ABC). McVicker alleged that the ABC defamed him through various broadcasts. The case was before the Supreme Court of Queensland, where the ABC applied for summary judgment, a permanent stay, and a strike out of certain paragraphs of McVicker's statement of claim. The court was tasked with determining whether the defamation claims made by McVicker were statute-barred, whether the principle of proportionality applied in Queensland, and if the ABC's application for a strike out should be granted.

The court considered whether the principle of proportionality applied in Queensland, which would allow for the exercise of judicial discretion to limit damages. The court also examined whether the defamation claims were time-barred under the Limitation Act 2010 (Qld). Furthermore, the court deliberated on the appropriateness of striking out specific paragraphs of McVicker's statement of claim and whether the ABC's application for a permanent stay should be granted.

The court found that McVicker's defamation claims from 1 July 2021 were statute-barred and granted summary judgment to dismiss these claims. However, the court dismissed the application for a permanent stay, finding no abuse of process. The court granted the application to strike out certain paragraphs of McVicker's statement of claim, allowing for amendments, and set timelines for the filing of further pleadings. The court also ordered that McVicker pay a portion of the ABC's costs related to the application.

The orders of the court included the adoption of amended pleadings, dismissal of certain claims, permission for the ABC to apply for a permanent stay, and directives for further amendments and scheduling of the case for review. The court ordered McVicker to pay part of the ABC's costs related to the application.

Orders

Orders of the court

ORDER:

1. Pages 3-9 of exhibit 1 of the affidavit of Nicole Neal, sworn 19 June 2023, stand as the pleadings, being the further amended statement of claim.

2. Summary judgment is granted to dismiss any claim for defamation from 1 July 2021.

3. The summary judgment application is otherwise dismissed.

4. The defendant have leave to amend the application to include an application for a permanent stay on the basis of an abuse of process.

5. The application for a stay of the proceedings as an abuse of process is dismissed.

6. The application to strikeout paragraphs 3A, 6, 13A and 14 of the further amended statement of claim is granted.

7. The plaintiff have leave to amend paragraphs 3A, 6, 13A and 14 of the further amended statement of claim.

8. The plaintiff is to file and serve the second further amended statement of claim by 19 September 2023.

9. The defendant is to file and serve any amended defence by 17 October 2023.

10. The plaintiff is to file and serve any reply by 31 October 2023.

11. The proceeding be listed for further review before Judge Andreatidis KC at 9:30am on 3 November 2023.

12. The defendant pay the plaintiff’s costs in respect of the appearance on 19 June 2023 on the standard basis. Otherwise order that the plaintiff pay the defendant’s costs of an incidental to the application, but 50% of those costs.

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:	McVicker v Australian Broadcasting Corporation [2023] QDC 167
PARTIES:	ROBERT MCVICKER (Plaintiff/Respondent) v AUSTRALIAN BROADCASTING CORPORATION (Defendant/Respondent)
FILENO:	1542/22
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	District Court
DELIVEREDON:	22 August 2023 (ex tempore, revised from transcript)
DELIVEREDAT:	Brisbane
HEARINGDATE:	22 August 2023
JUDGE:	Andreatidis KC DCJ
ORDER:	1. Pages 3-9 of exhibit 1 of the affidavit of Nicole Neal, sworn 19 June 2023, stand as the pleadings, being the further amended statement of claim. 2. Summary judgment is granted to dismiss any claim for defamation from 1 July 2021. 3. The summary judgment application is otherwise dismissed. 4. The defendant have leave to amend the application to include an application for a permanent stay on the basis of an abuse of process. 5. The application for a stay of the proceedings as an abuse of process is dismissed. 6. The application to strikeout paragraphs 3A, 6, 13A and 14 of the further amended statement of claim is granted. 7. The plaintiff have leave to amend paragraphs 3A, 6, 13A and 14 of the further amended statement of claim.