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Nguyen v Hinsley

Nguyen v Hinsley

Case [2021] WASC 220 9 July 2021

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   NGUYEN -v- HINSLEY [2021] WASC 220
CORAM:   KENNETH MARTIN J
HEARD:   21 MAY 2021
DELIVERED          :   9 JULY 2021
FILE NO/S:   CIV 2085 of 2020
BETWEEN:   ANH TU VU NGUYEN
First Plaintiff
DR ANH PTY LTD
Second Plaintiff
AND
REBECCA HINSLEY
Defendant

Catchwords:

Defamation - Strike out application against pleaded defence - Pleas of substantial truth and contextual truth challenged as not reasonably arguable - Plea of statutory qualified privilege as to reasonable conduct challenged - Counterclaim alleging negligence and breach of implied duty to conduct surgery with reasonable care and skill - Possible engagement of res ipsa loquitur doctrine - Multiple defence and counterclaim paragraphs are struck out with leave to replead

Legislation:

Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Paragraphs of the amended substituted defence and counterclaim struck out with leave to replead

Category: A

Representation:

Counsel:

First Plaintiff	:	Ms S T Chrysanthou SC & Mr N G Olson
Second Plaintiff	:	Ms S T Chrysanthou SC & Mr N G Olson
Defendant	:	Mr N D C Dillon

Solicitors:

First Plaintiff	:	Law One (WA) Pty Ltd
Second Plaintiff	:	Law One (WA) Pty Ltd
Defendant	:	Tang Law

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

Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 371 ALR 545
Domican v Pan Macmillan Australia Pty Ltd [2019] FCA 1384
Fairfax Media Publications Pty Ltd v Zeccola [2015] NSWCA 329; (2015) 91 NSWLR 341
Findlay v Grimmer [No 3] [2014] WASC 228
Gallagher v Destiny Publications Pty Ltd [No 2] [2015] WASC 475
Green v Fairfax Media Publications Pty Ltd [2020] WASC 250
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652; (2015) 332 ALR 257
Hunt v Times Newspapers [2012] EWHC 110 (QB)
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400
Lewis v Daily Telegraph Pty Ltd [1964] AC 234; 282
Maher v Nationwide News Pty Ltd [2013] WASC 254
Makim v John Fairfax & Sons Ltd (Unreported, SC NSW, 15 June 1990)
Mummery v Irvings (1956) 96 CLR 99
Nationwide News Pty Ltd v Rush [2018] FCAFC 70
Rush v Nationwide News Pty Ltd [2018] FCA 357; (2018) 359 ALR 473
Weeks v Nationwide News Pty Ltd [No 2] [2019] WASC 44

Table of Contents

Introduction

The strike out challenges

Overview of the defence

Substantial truth pleas

Contextual truth plea

Nomenclature of the ASDC

Two 'Procedures' to be distinguished

The counterclaim

Further defences

Materials relied upon for the strike out application

Koshy affidavit

Professor Lewandowski's report

The strike out application

The First Matter

The defamation imputations from the First Matter

The defence pleas

Determination - ASDC par 10 – contextual truth

Determination - ASDC par 7 – substantial truth

Determination - ASDC par 6 – substantial…

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 Nguyen v Hinsley

Details

AGLC: Nguyen v Hinsley [2021] WASC 220
Case: [2021] WASC 220
Decision Date

CaseChat Overview and Summary

The case of Nguyen v Hinsley involved a defamation action brought by Anh Tu Vu Nguyen, a qualified medical practitioner and medical director of Dr Anh Pty Ltd, against Rebecca Hinsley. Nguyen alleged that Hinsley defamed him through three publications on social media following a procedure performed by Nguyen on Hinsley. Hinsley's defence included pleas of substantial truth and contextual truth, as well as a counterclaim alleging negligence and breach of implied duty of care. The court held a strike out application against the defendant's defence and counterclaim. The court found that several defence pleas, including pleas of substantial truth and contextual truth, failed to disclose any reasonably arguable defence and were struck out. The court also found that the counterclaim lacked particularity and was struck out, with leave to amend. The court found that the statutory qualified privilege defence was also impacted by the excision of the defence pleas and left the resolution of the related issue for another occasion. The defendant was granted leave to amend her pleadings, and the plaintiff was ordered to pay the defendant's costs of the application.

Orders