Munsie v Dowling (No 4) - [2015] NSWSC 37

Supreme Court

New South Wales

Medium Neutral Citation: Munsie v Dowling (No 4) [2015] NSWSC 37
Hearing dates: 2 February 2015
Decision date: 11 February 2015
Jurisdiction: Common Law
Before: Hoeben CJ at CL
Decision:
The Amended Defence filed 18 August 2014 is struck out.
The defendant is granted leave to file a further Amended Defence within 21 days.
At this time I decline to make orders for discovery and interrogatories as requested by the defendant.
The defendant is to pay the plaintiffs’ costs of the motion to strike out the Amended Defence.
I grant liberty to the parties to apply to the Court on 7 days’ notice.

Catchwords: PRACTICE AND PROCEDURE – Application to strike out defence – defence containing scandalous material – failure to comply with UCPR – defence struck out – leave granted to re-plead defence – defendant’s application for interrogatories and discovery refused.
Legislation Cited: Defamation Act 2005 (NSW)
Cases Cited: Lange v The Australian Broadcasting Corporation [1997] HCA 25; 189 CLR 520
Munsie v Dowling [2014] NSWSC 458
Category: Procedural and other rulings
Parties: Justine Munsie – First Plaintiff
Representation:
Counsel:
Mr ATS Dawson - Plaintiffs
Defendant appeared in person
Solicitors:

File Number(s): 2014/114469

Judgment

HIS HONOUR:

Nature of Applications

The plaintiffs by Notice of Motion filed 14 October 2014 seek the following orders:

An order to pursuant to UCPR Regulation 14.28(1) that the Amended Defence be struck out on the basis that:

No reasonable defence is disclosed; and/or

The Amended Defence has a tendency to cause prejudice, embarrassment or delay in the proceedings.

Costs.

There was also before the Court an application by the defendant for orders that the plaintiffs separately provide answers to interrogatories and that the plaintiffs separately give discovery of certain specified documents.
The interrogatories were expressed as follows:

“(i)   Are you aware of any payments that were made to Schappelle Corby this year (2014) by you Channel 7 or any associated companies? If so how much was it.
(ii)   Are you aware of any payments that were made on behalf of Schappelle Corby this year (2014) by you, Channel 7 or any associated companies? If so how much was it.
(iii)   Are you aware of any payments that were made for accommodation and any other expenses on behalf of Schappelle Corby this year (2014) by you, Channel 7 or any associated companies?
(iv)   Who organised the Ex parte hearing with Justice McCallum and how was it organised? Who instructed the Ex parte hearing to be organised with Justice McCallum?”

The documents in respect of which an order for discovery was sought were described as:

“All notes file notes diary notes emails receipts invoices letters and other relevant communication regarding any payment negotiation or discussion of payment to Schappelle Corby.”

The plaintiffs were represented by Mr Dawson of counsel and the defendant appeared for himself.

Factual Background

The factual background to the proceedings is set out in considerable detail in these judgments: Munsie v Dowling [2014] NSWSC 458 (Harrison J);

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 Munsie v Dowling (No 4)

Details

AGLC: Munsie v Dowling (No 4) [2015] NSWSC 37
Case: [2015] NSWSC 37
Decision Date: 11 February 2015

CaseChat Overview and Summary

The case of Munsie v Dowling (No 4) involved the parties Munsie, the plaintiff, and Dowling, the defendant. The dispute before the court was primarily concerned with the plaintiff's application to strike out the defendant's defence, which included scandalous material. The plaintiff argued that the scandalous content was not relevant to the dispute and that the defence failed to comply with the requirements set out in the Uniform Civil Procedure Rules (UCPR). The matter was heard in the Supreme Court of New South Wales.

The legal issues before the court were whether the scandalous material in the defence was properly pleaded and whether it was relevant to the matters in dispute. The court also needed to determine if the defendant's failure to comply with the UCPR justified striking out the defence. Additionally, the court had to consider the plaintiff's application for interrogatories and discovery in light of the defendant's inability to properly plead a defence.

In its decision, the court found that the scandalous material in the defence was not relevant to the issues in dispute and did not comply with the UCPR. Consequently, the court struck out the defendant's defence. However, the court granted the defendant leave to re-plead the defence. The court also refused the plaintiff's application for interrogatories and discovery, finding that the defendant's failure to properly plead did not warrant such relief. The reasoning behind the court's decision was based on the need to maintain procedural fairness and to ensure that the dispute was resolved based on the merits and relevant legal issues.

The final orders of the court were that the defendant's defence was struck out, but leave was granted for the defendant to re-plead. Additionally, the plaintiff's application for interrogatories and discovery was refused. The court's decision highlighted the importance of compliance with procedural rules and the relevance of material presented in pleadings.

Orders