MICKELBERG -v- NETWORK 10 (PERTH) PTY LTD & ANOR [2001] WASC 75

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2001] WASC 75
Case No:	CIV:2507/2000	Heard:	12 MARCH 2001
Coram:	HASLUCK J	Delivered:	28/03/01
No of pages:	8	Judgment Part:	1 of 1
Result:	Application to set aside judgment allowed
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Parties:	ROSS ALEXANDER MICKELBERG NETWORK 10 (PERTH) PTY LTD (ACN 009 108 614) WIN TELEVISION (WA) PTY LTD (ACN 001 969 491)
Catchwords:	Defamation Judgment in default of defence Application to set aside judgment Turns on own facts
Legislation:	Supreme Court Rules, O 22 r 3, O 22 r 10, O 37 r 6(2), O 59 r 9
Case References:	Carr v Finance Corp Australia Ltd (No 1) (1981) 147 CLR 246 Evans v Bartlam [1937] AC 473 Kostokanellis v Allen [1974] VR 596 Mickelberg v The Queen [2000] WASCA 319 Parker v Transfield Pty Ltd [2000] WASCA 382 Sharples v Northern Territory (1988) 91 FLR 11 Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MICKELBERG -v- NETWORK 10 (PERTH) PTY LTD & ANOR [2001] WASC 75 CORAM : HASLUCK J HEARD : 12 MARCH 2001 DELIVERED : 28 MARCH 2001 FILE NO/S : CIV 2507 of 2000 BETWEEN : ROSS ALEXANDER MICKELBERG

Plaintiff

AND

NETWORK 10 (PERTH) PTY LTD (ACN 009 108 614)

First Defendant

WIN TELEVISION (WA) PTY LTD (ACN 001 969 491)

Second Defendant

Catchwords:

Defamation - Judgment in default of defence - Application to set aside judgment - Turns on own facts

Legislation:

Supreme Court Rules, O 22 r 3, O 22 r 10, O 37 r 6(2), O 59 r 9

(Page 2)

Result:

Application to set aside judgment allowed

Representation:

Counsel:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : Ms C Galati

Solicitors:

Plaintiff : In person

First Defendant : No appearance

Second Defendant : Edwards Wallace

Case(s) referred to in judgment(s):

Carr v Finance Corp Australia Ltd (No 1) (1981) 147 CLR 246
Evans v Bartlam [1937] AC 473
Kostokanellis v Allen [1974] VR 596
Mickelberg v The Queen [2000] WASCA 319
Parker v Transfield Pty Ltd [2000] WASCA 382
Sharples v Northern Territory (1988) 91 FLR 11

Case(s) also cited:

Nil

(Page 3)

1 HASLUCK J: This is an application by the second defendant to set aside a default judgment obtained in default of the filing of a statement of defence. The plaintiff appeared in person. There was no appearance for the first defendant. The second defendant was represented by counsel.

2 On 6 November 2000, the plaintiff, Ross Alexander Mickelberg, issued a writ of summons bearing an indorsement of claim. On the same day, the plaintiff filed a statement of claim from which it appears that on or about 15 April 2000 in the State of Western Australia the defendants allegedly broadcast news programmes on television containing words and pictures which are said to be defamatory of the plaintiff.

3 The plaintiff says that in their ordinary and…

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 Mickelberg v Network 10 (Perth) Pty Ltd

Details

AGLC: Mickelberg v Network 10 (Perth) Pty Ltd [2001] WASC 75
Case: [2001] WASC 75
Decision Date

CaseChat Overview and Summary

In Mickelberg v Network 10 (Perth) Pty Ltd, the plaintiff, Ross Alexander Mickelberg, applied to set aside a default judgment obtained against the second defendant, Win Television (WA) Pty Ltd, in a defamation action. Mickelberg had issued a writ of summons against both Network 10 (Perth) Pty Ltd and Win Television (WA) Pty Ltd, alleging that they broadcast defamatory material regarding his cannabis possession charge. The first defendant had filed a statement of defence, but the second defendant failed to do so, resulting in a default judgment being entered against it. The second defendant applied to set aside the judgment, arguing that it had a prima facie defence and a reasonable explanation for the delay in filing its defence.

The court considered whether the second defendant had provided a sufficient explanation for the delay and whether it had a prima facie defence. The second defendant argued that it was a regional broadcaster and questioned whether the claim, as initially formulated, disclosed a cause of action against it. It also claimed that it was entitled to plead truth to an alternative imputation arising from the broadcast. The court found that the second defendant had provided a reasonable explanation for the delay and that it had a prima facie defence. Therefore, the court set aside the default judgment and allowed the second defendant to file a defence within 21 days of the order.

The court ordered that the default judgment be set aside, the second defendant's time to file and serve a defence be extended to 21 days after the date of the order, and the second defendant pay the plaintiff's costs of the application. The court also waived the operation of par 1 of O 59 r 9.

Orders