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Munsie v Dowling (No. 7)

Munsie v Dowling (No. 7)

Case [2015] NSWSC 1832 4 December 2015

Defamation

Abuse of Process

Res Judicata

Admissibility of Evidence

Defamation

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Supreme Court

New South Wales

Medium Neutral Citation: Munsie v Dowling (No. 7) [2015] NSWSC 1832
Hearing dates: 30 November 2015
Date of orders: 04 December 2015
Decision date: 04 December 2015
Jurisdiction: Common Law
Before: Davies J
Decision:
1. The Defences filed by the Defendant on 31 March 2015 and 24 July 2015 are struck out.
2. Leave is refused to the Defendant to re-plead.
3. Direct the parties to approach the Listing Manager for a final hearing on the basis of a two day hearing.
4. The Defendant should pay the Plaintiffs’ costs of the Motion.

Catchwords: DEFAMATION – pleading – application to strike out defence – unrepresented defendant - second application to strike out– failure of defendant to comply with rules relating to pleading defences to defamation proceedings – inclusion of evidence in defence – reliance on reasons for judgment contrary to s 91 Evidence Act – whether defendant should be permitted to re-plead – failure to comply with earlier judgment on strike-out application – making of scandalous and irrelevant allegations – defendant refuse leave to re-plead
Legislation Cited: Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Aon Risk Services Australia Limited v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Ebner v Official Trustee [2000] HCA 63; (2000) 205 CLR 337
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Munsie v Dowling [2014] NSWSC 458
Munsie v Dowling [2014] NSWSC 598
Munsie v Dowling [2014] NSWSC 1508
Munsie v Dowling (No. 4) [2015] NSWSC 37
Munsie v Dowling (No. 5) [2015] NSWSC 789
Munsie v Dowling (No 6) [2015] NSWSC 808
Seven Network Ltd v News Ltd [2009] FCAFC 166; (2009) 182 FCR 160
Webb v R (1994) 181 CLR 41
Category: Procedural and other rulings
Parties: Justine Munsie (First Plaintiff)
Kerry Stokes (Second Plaintiff)
Ryan Stokes (Third Plaintiff)
Shane Dowling (Defendant)
Representation:
Counsel:
A Dawson (Plaintiffs)
In person (Defendant)
Solicitors:
Addisons (Plaintiffs)
Self-represented (Defendant)

File Number(s): 2014/114469

Judgment

The Plaintiffs sue the Defendant for defamation. They do not claim damages. They seek a permanent injunction restraining the Defendant from publishing a number of matters more particularly set out in Prayer 1 of the Third Further Amended Statement of Claim filed 29 June 2015.
The First Plaintiff is a solicitor and partner of the law firm Addisons. The First Plaintiff is retained by the Second and Third Plaintiffs as their solicitor. The Second Plaintiff is the chairman of Seven West Media whose media assets include the Seven Network which broadcasts news, current affairs and other programs throughout Australia. The Third Plaintiff is the Chief Operating Officer of Seven Group Holdings Ltd, a director of Seven West Media, Chairman of the National Library of Australia, and the son of the Second Plaintiff.
The…

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. 7)

Details

AGLC: Munsie v Dowling (No. 7) [2015] NSWSC 1832
Case: [2015] NSWSC 1832
Decision Date: 04 December 2015

CaseChat Overview and Summary

The case of Munsie v Dowling involved a defamation claim brought by the plaintiff against the defendant. The dispute centred around allegations made by the defendant in a blog post and social media posts that the plaintiff claimed were defamatory. The case was heard in the Supreme Court of Queensland. The defendant, who was unrepresented, faced a second application from the plaintiff to strike out the defence due to non-compliance with the rules governing pleading defences in defamation proceedings. This included the inclusion of evidence in the defence and reliance on reasons for judgment contrary to the Evidence Act.

The court had to determine whether the defendant should be allowed to re-plead and if the scandalous and irrelevant allegations made by the defendant warranted refusal of leave to re-plead. The defendant had previously failed to comply with the court’s judgment on the first application to strike out the defence. The court considered the defendant's failure to adhere to procedural rules and the impact of the scandalous and irrelevant allegations on the proceedings. Given these factors, the court concluded that the defendant should not be permitted to re-plead.

The Supreme Court of Queensland dismissed the defendant's application to amend the defence. The court found that the defendant's failure to comply with the procedural rules, coupled with the making of scandalous and irrelevant allegations, justified the refusal of leave to re-plead. The court emphasised the importance of adhering to the rules in defamation proceedings and the need to maintain the integrity of the legal process. This decision underscored the consequences for unrepresented litigants who fail to comply with procedural requirements and make improper allegations.

Orders