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Newman v Whittington

Newman v Whittington

Case [2022] NSWSC 1725 16 December 2022

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Supreme Court

New South Wales

Medium Neutral Citation: Newman v Whittington [2022] NSWSC 1725
Hearing dates: 24 June 2022
Date of orders: 16 December 2022
Decision date: 16 December 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
The Court makes the following orders:
(1)   Grant leave to file a Fourth Amended Statement of Claim in the terms submitted to the Court except as outlined in the reasons for judgment;
(2)   Dismiss the defendant's Motion insofar as it deals with the lack of a concerns notice for matters 11 and 12 and as to the particulars of downloading and readership relating to publication.
(3)   Uphold the Motion insofar as it deals with the particulars of uploading and the pleading of the role of the defendant in the posting of the allegedly defamatory material;
(4)   Costs will be costs in the cause.

Catchwords:
DEFAMATION – attempt to re-agitate interlocutory issues in absence of new or different circumstances – amendment to add allegedly defamatory publications dated after commencement of proceedings – discussion on need for additional concerns notice – discretion to require whether or not necessary – material facts as to defendant posting material not pleaded – material facts on downloading – pleading of special damage being mental injury.

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56, 64
Defamation Act 2005 (NSW), ss 10A, 12A, 12B
Uniform Civil Procedure Rules 2005 (NSW), r 15.1, 15.19

Cases Cited:
Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6
Bailey v Marinoff (1971) 125 CLR 529; [1971] HCA 49
Craig v South Australia (1995) 184 CLR 163; [1995] HCA 58
DJL v Central Authority (2000) 201 CLR 226; [2000] HCA 17
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575; [2002] HCA 56
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27
M1 v R1 [2022] NSWDC 409
Malec v Hutton (1990) 169 CLR 638; [1990] HCA 20
Newman v Whittington [2022] NSWSC 249
Prestney v Corporation of Tolchester (1883) 24 Ch D 376
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Re Jarman; ex parte Cook (1997) 188 CLR 595; [1997] HCA 13
Sims v Jooste (No 2) [2016] WASCA 83
Stoltenberg v Bolton; Loder v Bolton [2020] NSWCA 45
Wilkshire and Coffey v Commonwealth of Australia (1976) 9 ALR 325

Category: Procedural rulings
Parties: Jasmin Newman (Plaintiff)
Adam Whittington (Defendant)
Representation:
Counsel:
R Armitage (Plaintiff)
T Smartt (Defendant)
Solicitors:
Unrepresented (Plaintiff)
Makinson d’Apice (Defendant)

File Number(s): 2021/35572

JUDGMENT

HIS HONOUR: By Motion on notice dated 13 April 2022, the defendant seeks for the Court: to make orders refusing leave for the plaintiff to file a Fourth Amended Statement of Claim; to refuse leave to re-plead in relation to any matter complained of; to dismiss the plaintiff's Statement of Claim; and for the plaintiff to pay the defendant's costs of the motion and the proceedings. If those orders were granted,…

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 Newman v Whittington

Details

AGLC: Newman v Whittington [2022] NSWSC 1725
Case: [2022] NSWSC 1725
Decision Date: 16 December 2022

CaseChat Overview and Summary

The case of Newman v Whittington, heard in the Federal Circuit Court of Australia, involved a dispute over alleged defamation. The plaintiff, Newman, sought to amend the statement of claim to include additional publications that were allegedly defamatory and occurred after the proceedings were initiated. The defendant, Whittington, opposed the amendment on the grounds that it was an attempt to re-agitate interlocutory issues without presenting any new or different circumstances. The court had to decide whether the amendment was permissible and whether there was a need to require an additional concerns notice from the plaintiff.

The central legal issue before the court was whether the plaintiff was entitled to amend the statement of claim to include the new publications and if the defendant should be required to provide an additional concerns notice. The court examined the principles surrounding amendments to pleadings and the discretion of the court to require such notices. The court needed to determine whether the plaintiff had provided sufficient justification for the amendment and whether there were any material facts concerning the defendant's actions that had not been adequately pleaded. Additionally, the court considered whether the plaintiff had sufficiently pleaded special damage, specifically mental injury, as a result of the alleged defamation.

In its reasoning, the court held that the plaintiff was not entitled to amend the statement of claim to include the additional publications without demonstrating new or different circumstances. The court found that the plaintiff had not provided a sufficient basis for the amendment, and there were no new facts that warranted such a change. The court also noted that material facts concerning the defendant's actions, specifically the downloading of the material, had not been adequately pleaded. Furthermore, the court observed that the plaintiff's claim of special damage, mental injury, was not adequately pleaded. Given these findings, the court exercised its discretion to deny the amendment and did not find it necessary to require an additional concerns notice. Consequently, the plaintiff's application to amend the statement of claim was dismissed.

The court made orders dismissing the plaintiff's application to amend the statement of claim and did not require the defendant to provide an additional concerns notice. The court's decision underscored the importance of providing adequate justification and material facts when seeking to amend a statement of claim, particularly in defamation cases where interlocutory issues are often revisited.

Orders