Nine Network Australia Pty Ltd v Sheppard - [2018] QCA 301

SUPREME COURT OF QUEENSLAND

CITATION:

Nine Network Australia Pty Ltd & Ors v Sheppard [2018] QCA 301

PARTIES:

NINE NETWORK AUSTRALIA PTY LTD
ACN 008 685 407
(first applicant)
TCN CHANNEL NINE PTY LTD
ACN 001 549 560
(second applicant)
QUEENSLAND TELEVISION LTD
ACN 009 674 373
(third applicant)
v
GRAHAM SHEPPARD
(respondent)

FILE NO/S:

Appeal No 9648 of 2018
DC No 1418 of 2017

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave s 118 DCA (Civil)

ORIGINATING COURT:

District Court at Brisbane – [2018] QDC 158 (Rosengren DCJ)

DELIVERED ON:

2 November 2018

DELIVERED AT:

Brisbane

HEARING DATE:

23 October 2018

JUDGES:

Fraser JA and Douglas and Davis JJ

ORDERS:

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the appeal.

CATCHWORDS:

DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the respondent is the plaintiff in defamation proceedings – where the learned primary judge struck out paragraphs of the applicants’ defence – where the struck out paragraphs went to the financial circumstances of the respondent – where the applicants submit that the striking out narrows the material facts that can prove the allegations in remaining paragraphs of the defence – whether the matters struck out were capable of being probative to the allegations in the pleading – whether leave to appeal should be granted

Uniform Civil Procedure Rules 1999 (Qld), r 171

Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, cited
New South Wales v Deren [1999] NSWCA 22, distinguished
Rush v Nationwide News Pty Ltd [2018] FCA 357, cited
Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, cited
Wilson v Bauer Media (Ruling No 6) [2017] VSC 356, cited

COUNSEL:

R J Anderson QC for the applicants
A P J Collins for the respondent

SOLICITORS:

Mark O’Brien Legal for the applicant
O’Shea Lawyers for the respondent

FRASER JA: I agree with the reasons for judgment of Davis J and the orders proposed by his Honour.
DOUGLAS J: I agree with Davis J’s reasons and proposed orders.
DAVIS J: The applicants apply for leave to appeal a decision made in the District Court to strike out particulars of a paragraph in a defence to a defamation action. The judgment in the District Court is not one of the judgments identified in s 118(2) of the District Court of Queensland Act 1967 (Qld) from which an appeal will lie as of right. The applicants accept that they need leave under s 118(3).
The first applicant is a broadcaster responsible for the production of the television program “A Current Affair”. The second and third applicants are companies who broadcast the program to Sydney and Brisbane, respectively. The first applicant owns and maintains a website to which episodes of the program are uploaded and so can be viewed by members of the public through internet access.
The applicants produced and broadcast, by…

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.

Keep reading for free

Create a free CaseChat account to read Nine Network Australia Pty Ltd v Sheppard and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2018] QCA 301
Decision Date: 2 November 2018

CaseChat Overview and Summary

In the case of Nine Network Australia Pty Ltd v Sheppard, the applicants sought leave to appeal against the primary judge's decision to strike out certain paragraphs of their defence in the defamation proceeding. The primary judge had ruled that the paragraphs pertaining to the financial circumstances of the respondent, including bankruptcy and the statement of affairs, were not relevant to the allegations of dishonesty in the defendant’s defence. The applicants argued that these paragraphs were crucial to proving their case and that their removal limited the material facts that could be presented.

The court considered whether the financial circumstances of the respondent were relevant to the allegation that he had dishonestly misappropriated his father’s money. The primary judge found that the bankruptcy and the statement of affairs were too remote in time to have any probative value concerning the events in 2009, and therefore struck out those paragraphs. The applicants contended that the primary judge had overlooked the relevance of the financial allegations to the overall defence of dishonesty. However, the court held that the financial circumstances could not substantiate the claim of dishonesty and did not provide a compelling basis for the inference that the imputations were substantially true.

The court ultimately decided that no error had been demonstrated by the primary judge in striking out the paragraphs in question. The applicants' claims of impecuniosity could still be maintained through other means, and the financial circumstances were not relevant to the core allegation of dishonesty. As a result, the application for leave to appeal was refused, and the applicants were ordered to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. The application for leave to appeal is refused.

2. The applicants pay the respondent’s costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Paragraph 20(i) amounts to a plea that the respondent is an untrustworthy person because he dishonestly misappropriated his father’s money as alleged in paragraph 20(g). Since the allegation of dishonesty in paragraph 20(g) can not be proved without proof that the payments were unauthorised, neither can the allegation that the respondent is untrustworthy.The decision below Her Honour directed herself to the appropriate rule of court,[10] and the relevant principles in cases such as Rush v Nationwide News Pty Ltd.[11] In striking out paragraphs 20(g)(v)(B) and 20(g)(v)(C) but refusing to strike out paragraph 20(g)(v)(A), her Honour said:“[14] I am persuaded that there is nothing in either of the pleaded paragraphs relating to the plaintiff’s bankruptcy (paragraph 20(g)(v)(B)) or the Debtor’s Petition and Statement of Affairs (paragraph 20(g)(v)(C)) that is capable of being rationally considered by a jury as part of the defendants’ circumstantial case.[15]These paragraphs can be distinguished from the paragraph to the effect that the plaintiff had been unemployed since 7 March 2000 (paragraph 20(g)(v)(A)(II)). This is relevant, in circumstances where the status of the plaintiff’s employment is pleaded to be a continuing state of affairs for the nine or so years leading up to the first transaction. It is submitted on behalf of the plaintiff that the pleading is frivolous and has a tendency to delay the fair trial of the proceeding where disclosure of documents going back some nine years may be required. Counsel for the defendant observed that if the duty of disclosure is thought to be overly burdensome, an application can be made seeking an order for the plaintiff to be relieved from his disclosure duty in respect to this issue. I am satisfied that this paragraph is part of the circumstantial case with respect to the motive of the plaintiff for having dishonestly taken his father’s money. It is but one fact together with the other facts in paragraph 20 of the defence, which might provide a compelling basis from which to draw the inference that the imputations are substantially true.[16]On the other hand, there is a significant gap in time of some six years between the plaintiff’s bankruptcy and the first transaction. Any potential connection is even more remote with respect to the content of the plaintiff’s Debtor’s Petition and Statement of Affairs dated 9 March 2000. It is a document that was completed more than nine years prior to the first transaction. The debt stated to be owed at that time was only in the order of $2,310.56. Irrespective of the quantum of the debt, the effect of the plaintiff’s bankruptcy subsequent to the completion of that document, is that the liability for the debt was eliminated.[17]Therefore, I am of the view that neither of these remaining two paragraphs contain facts that might be accepted by a jury as consistent with the plaintiff’s poor financial position commencing at the time of the first transaction in mid-2009. The paragraphs do not plead facts or circumstances which taken together with the other paragraphs relevant to the justification defences, are capable of supporting a reasonable and definite inference that the imputations are substantially true. I consider that it is untenable to suggest that they could be.”[12][10]Uniform Civil Procedure Rules 1999 (Qld) (UCPR) r 171(2).[11][2018] FCA 357.[12]Sheppard v Nine Network Australia Pty Ltd & Ors [2018] QDC 158: Appeal record book (ARB) vol 1 at 24.

Ratio Decidendi

Legal Principle Established

No leave to appeal should be given, so submits the respondent, because no error has been demonstrated, and no substantial injustice would be suffered by the applicants in any event, as the allegations of impecuniosity can still be maintained.Consideration The applicants’ submission that the allegations concerning the bankruptcy and the statements made in the statement of affairs should remain in the pleading in support of some general allegation of “untrustworthiness” should be rejected. The only fact pleaded to support the truth of the second imputation namely, that the respondent is untrustworthy, is the allegedly dishonest depositing of the funds by the respondent into his bank account in the circumstances pleaded in paragraph 20(g). The applicants’ submission that the learned primary judge only considered the relevant paragraphs by reference to the first imputation can be accepted. However, that was not an error. At paragraph [13] of the reasons, the question was posed by her Honour as to whether the allegations concerning the bankruptcy and the content of the debtor’s petition supported the inference that the depositing of the money “was dishonest and untruthful”. The applicants submit that the terms “dishonest and untruthful” are both referrable to the first imputation, not the second so the judge has not considered the relevance of the allegations to the second imputation. However, as already observed, the only plea in support of the truthfulness of the second imputation is that the first imputation was true, in that the respondent is untrustworthy because he dishonestly misappropriated his father’s money. Therefore, the correct question is whether the allegations in the paragraphs which have been struck out support the allegations of dishonesty. The distinction drawn between paragraph 20(g)(v)(B) and (C), which her Honour struck out, and paragraph 20(g)(v)(A), which her Honour did not, is more problematic. There is no attack on the principal allegation made in paragraph 20(g)(v); only an attack on the particulars. Therefore, on the pleading as it presently stands, the fact that the respondent “was in a poor financial position” and had been in that state “in the years prior to and during the time of the withdrawal” are pleaded facts said to support the allegation of dishonesty. As there was no cross appeal by the respondent against the refusal of her Honour to strike out paragraph 20(g)(v)(A), a fact supporting the allegation of impecuniosity is the unemployment of the respondent over the period from 2000 to 2009, which of course, includes the period of the bankruptcy. If the financial position of the respondent over that entire period is relevant (as her Honour has apparently found), then it is difficult to see why at least the fact of his bankruptcy is not also relevant. However, there are huge difficulties with the plea in paragraph 20(g)(v). Firstly, there is no plea that any of the things stated in the debtor’s petition and statement of affairs are false. The only apparent relevance of those allegations is to prove the allegations in paragraph 20(g)(v) that the respondent “was in a poor financial position”. Secondly, and perhaps more significantly, the fact that the respondent “was in a poor financial position” cannot support the allegation made in paragraph 20(g) that the payment of the money was dishonest, whether by itself or with the allegations made in paragraph 20(g)(i),(ii) and (iv).

CITATION:	Nine Network Australia Pty Ltd & Ors v Sheppard [2018] QCA 301
PARTIES:	NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (first applicant) TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second applicant) QUEENSLAND TELEVISION LTD ACN 009 674 373 (third applicant) v GRAHAM SHEPPARD (respondent)
FILE NO/S:	Appeal No 9648 of 2018 DC No 1418 of 2017
DIVISION:	Court of Appeal
PROCEEDING:	Application for Leave s 118 DCA (Civil)
ORIGINATING COURT:	District Court at Brisbane – [2018] QDC 158 (Rosengren DCJ)
DELIVERED ON:	2 November 2018
DELIVERED AT:	Brisbane
HEARING DATE:	23 October 2018
JUDGES:	Fraser JA and Douglas and Davis JJ
ORDERS:	1. The application for leave to appeal is refused. 2. The applicants pay the respondent’s costs of the appeal.
CATCHWORDS:	DEFAMATION – ACTIONS FOR DEFAMATION – OTHER PROCEEDINGS BEFORE TRIAL – OTHER MATTERS – where the respondent is the plaintiff in defamation proceedings – where the learned primary judge struck out paragraphs of the applicants’ defence – where the struck out paragraphs went to the financial circumstances of the respondent – where the applicants submit that the striking out narrows the material facts that can prove the allegations in remaining paragraphs of the defence – whether the matters struck out were capable of being probative to the allegations in the pleading – whether leave to appeal should be granted Uniform Civil Procedure Rules 1999 (Qld), r 171 Naxakis v Western General Hospital (1999) 197 CLR 269; [1999] HCA 22, cited New South Wales v Deren [1999] NSWCA 22, distinguished Rush v Nationwide News Pty Ltd [2018] FCA 357, cited Swain v Waverley Municipal Council (2005) 220 CLR 517; [2005] HCA 4, cited Wilson v Bauer Media (Ruling No 6) [2017] VSC 356, cited
COUNSEL:	R J Anderson QC for the applicants A P J Collins for the respondent
SOLICITORS:	Mark O’Brien Legal for the applicant O’Shea Lawyers for the respondent