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Nunn v Alyward

Nunn v Alyward

Case [2021] NSWDC 534 30 September 2021

Defamation

Discovery & Disclosure

Costs

Interlocutory Orders

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Nunn v Alyward [2021] NSWDC 534
Hearing dates: 30 September 2021
Date of orders: 30 September 2021
Decision date: 30 September 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   The Defendant’s Separate Question application is dismissed.
(2)   The Defendant to pay the Plaintiff’s costs of that application.
(3)   The parties to exchange categories for discovery by 7 October 2021.
(4)   The Parties to provide lists of documents by way of discovery by 28 October 2021.
(5)   Any application for further discovery to be filed by 4 November 2021.
(6)   Any application for interrogatories to be filed by 14 October 2021.
(7)   Any submissions by the Plaintiff on interrogatories and further discovery to be filed and served by 15 November 2021.
(8)   Any submissions by the Defendant on interrogatories and further discovery to be filed and served by 22 November 2021.
(9)   The matter be listed for hearing of any filed applications and further directions on 25 November 2021 at 9am.

Catchwords:
TORT – defamation – two slanders – defendant’s application for separate trial under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2 on the issue of publication – application refused

Legislation Cited:
Defamation Act 1974 (NSW) s 7A
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2.

Cases Cited:
Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Commonwealth Bank of Australia v Clune [2008] NSWSC 1125
Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86
Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30
Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145
El Chami v Mackie [2019] NSWSC 821
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203
Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172
Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95
Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130
Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845
Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712

Texts Cited:
P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Australia)
“Perverse jury verdicts in New South Wales defamation trials” (2003) 11 TLJ 28
R Baker and J Leslie, “Rethinking the defamation jury” (2008) 13 MALR 422
R Coleman, “Ruddock’s plan no longer such a fright” (2004) Gazette of Law & Journalism

Category: Procedural rulings
Parties: Plaintiff: Paul William Nunn
Defendant: Glenn Aylward
Representation:
Counsel:
Plaintiff: Mr A Nelson
Defendant: Mr M Clarke
Solicitors:
Plaintiff: Gorval Lynch
Defendant: Collas Moro Ross Lawyers

File Number(s): 2020/00322020

Judgment

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 Nunn v Alyward

Details

AGLC: Nunn v Alyward [2021] NSWDC 534
Case: [2021] NSWDC 534
Decision Date: 30 September 2021

CaseChat Overview and Summary

In the matter of Nunn v Alyward, the parties were involved in a defamation dispute, specifically concerning two slanderous statements, with the case being heard in the Supreme Court of New South Wales. The plaintiff sought damages for defamation, claiming that the defendant had made two slanderous statements about them. The defendant sought a separate trial under UCPR r 28.2 on the issue of publication. The court was tasked with deciding whether the defendant's application for a separate trial on the issue of publication should be granted. The court considered whether the issue of publication was distinct and separable from the other issues in the case. The court found that the issue of publication was not sufficiently distinct or separable to warrant a separate trial. The court dismissed the defendant's application for a separate trial on the issue of publication. The court ordered that the defendant pay the plaintiff's costs of the application. Additionally, the court provided directions for the exchange of categories for discovery, lists of documents by way of discovery, applications for further discovery, applications for interrogatories, and submissions on interrogatories and further discovery. The matter was listed for hearing of any filed applications and further directions on 25 November 2021 at 9am.

Orders

Orders of the court

Order:

(1) The Defendant’s Separate Question application is dismissed.

(2) The Defendant to pay the Plaintiff’s costs of that application.

(3) The parties to exchange categories for discovery by 7 October 2021.

(4) The Parties to provide lists of documents by way of discovery by 28 October 2021.

(5) Any application for further discovery to be filed by 4 November 2021.

(6) Any application for interrogatories to be filed by 14 October 2021.

(7) Any submissions by the Plaintiff on interrogatories and further discovery to be filed and served by 15 November 2021.

(8) Any submissions by the Defendant on interrogatories and further discovery to be filed and served by 22 November 2021.

(9) The matter be listed for hearing of any filed applications and further directions on 25 November 2021 at 9am.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Nunn v Alyward [2021] NSWDC 534

Most Recent Citation

R v Naghdi [2021] NSWDC 635

Cases citing this decision · 1 of 1 shown

R v Naghdi
[2021] NSWDC 635 Para 6

…term imprisonment of four years with a non-parole period of two years and one month commencing on the date of her arrest, on 5 November 2019 ( R v Wu [2021] NSWDC 534).…

View all 1 citing cases →

Cases cited in this decision · 21 of 21 shown

El Chami v Mackie
[2019] NSWSC 821 Para 13

…The court’s general reluctance to order separate trial of a final issue was summarised by Harrison AsJ in El Chami v Mackie [2019] NSWSC 821 at [9]-[14] as follows:…
Triguboff v Fairfax Media Publications Pty Ltd
[2018] FCA 845 Para 8

…en prepared to entertain separate questions to be determined in relation to identification, citing Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845.…
Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd
[2018] NSWCA 95 Para 9

…usive Brethren) Christian Church v The Age Company Ltd ; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95.…
Lokmeh v Harbour Radio Pty Ltd
[2015] NSWDC 172 Para 4

…highly undesirable, as the matters complained are both slanders and tone and/or body language could well be involved ( Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 at [21]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation t…
Ahmed v Harbour Radio Pty Ltd
[2013] NSWSC 1928 Para 4

…( Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 at [21]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NS…
Crawley v Vero Insurance Ltd
[2012] NSWSC 593

…ited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] (“ Southwell ”); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 (“ Crawley ”). 10. The general rule is that proceedings are listed for trial generally, for hearing of all questions and issues arising in the proceedings: see…
Cush v Dillon
[2011] HCA 30 Para 16

…rare for a slander to be denied. This is incorrect. In fact, denials of slander are not uncommon: see, for example, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 and Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 (what is more, both these actions were encumbered with the additional expense and…
Southwell v Bennett
[2010] NSWSC 1372 Para 15

…[1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] (“ Southwell ”); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 (“ Crawley ”). 10. The general rule is that proceedings are listed for trial gen…
Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd
[2010] NSWADT 145 Para 4

…SWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 at [67] – [68]). Counsel for the defendant acknowledged that the separate hearing would have to be enlarged to include this issue as well.…
Habib v Radio 2UE Sydney Pty Ltd
[2009] NSWCA 231 Para 4

…ders and tone and/or body language could well be involved ( Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 at [21]; Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 at [197]; Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 at [56]; see also, in relation to a racial vilification claim, Ekermawi v Harbour Radio Pty…
Commonwealth Bank of Australia v Clune
[2008] NSWSC 1125 Para 12

…t is “ordinarily appropriate that all issues in proceedings should be disposed of at the one time” ( Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 at [5]).…
Tyrrell v The Owners Corporation Strata Scheme 40022
[2007] NSWCA 8 Para 15

…ay have to be set aside because the disputed issues clearly cannot be determined, as occurred in Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8. Finally, and most importantly, unless the defendant is wholly successful, he and Mr Hames will both have to give evidence again in the later trial,…
Jones v Sutton (No 2)
[2005] NSWCA 203 Para 16

…als of slander are not uncommon: see, for example, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 and Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 (what is more, both these actions were encumbered with the additional expense and time caused by s 7A jury trials).…
Jones v Sutton
[2004] NSWCA 439 Para 16

…This is incorrect. In fact, denials of slander are not uncommon: see, for example, Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 and Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 (what is more, both these actions were encumbered with the additional expense and time caused by s 7A jury trials).…
New South Wales v Lepore
[2003] HCA 4

…) 206 CLR 1; [2001] HCA 19 (“ Tepko ”); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail C…
Tepko Pty Ltd v Water Board
[2001] HCA 19

…“9. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (“ Tepko ”); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd…
ABB v Freight Rail
[1999] NSWSC 1037

…t [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30; and per Rolfe J in ABB Engineering Construction Pty Limited v Freight Rail Corp [1999] NSWSC 1037; Southwell v Bennett [2010] NSWSC 1372 at [15] (“ Southwell ”); and Crawley v Vero Insurance Ltd [2012] NSWSC 593 (“ Crawley ”). 10. The general rule is th…
Perre v Apand Pty Ltd
[1999] HCA 36

…“9. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (“ Tepko ”); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 67…
Parramatta Stadium Trust v Civil and Civil Pty Ltd
[1996] NSWSC 439 Para 12

…at the one time, particularly where, as here, the issues are interrelated and relate to issues of credit ( Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130. As a general rule, as the notes to UCPR r 28.2 in P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie’s Uniform Civil Procedure New Sou…
Tepko Pty Limited v Water Board
[2001] HCA 195

…“9. There are many authorities on this topic which include Tepko Pty Limited v Water Board (2001) 206 CLR 1; [2001] HCA 19 (“ Tepko ”); Perre v Apand Pty Limited (1999) 198 CLR 180; [1999] HCA 36 at [436]; State of New South Wales v Lepore (2003) 212 CLR 511; [2003] HCA 4 at [187]; Dunstan v Simmie & Co Pty Ltd [1978] VR 669 at 671.30;…
Consolidated Trust Co Ltd v Browne
66 WN 7 Para 9

…separate trials in relation to identification under either the uniform legislation or its legislative predecessors over the past seventy years or so: Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86; World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712; Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Com…

Legislation cited in this decision · 3

Defamation Act 1974 (NSW)
7A 2 mentions (from Para 10)
Civil Procedure Act 2005 (NSW)
1 mention
Uniform Civil Procedure Rules 2005 (NSW)
28.2 1 mention (from Para 1)

Medium Neutral Citation:	Nunn v Alyward [2021] NSWDC 534
Hearing dates:	30 September 2021
Date of orders:	30 September 2021
Decision date:	30 September 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) The Defendant’s Separate Question application is dismissed. (2) The Defendant to pay the Plaintiff’s costs of that application. (3) The parties to exchange categories for discovery by 7 October 2021. (4) The Parties to provide lists of documents by way of discovery by 28 October 2021. (5) Any application for further discovery to be filed by 4 November 2021. (6) Any application for interrogatories to be filed by 14 October 2021. (7) Any submissions by the Plaintiff on interrogatories and further discovery to be filed and served by 15 November 2021. (8) Any submissions by the Defendant on interrogatories and further discovery to be filed and served by 22 November 2021. (9) The matter be listed for hearing of any filed applications and further directions on 25 November 2021 at 9am.
Catchwords:	TORT – defamation – two slanders – defendant’s application for separate trial under Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2 on the issue of publication – application refused
Legislation Cited:	Defamation Act 1974 (NSW) s 7A Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 28.2.
Cases Cited:	Ahmed v Harbour Radio Pty Ltd [2013] NSWSC 1928 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Commonwealth Bank of Australia v Clune [2008] NSWSC 1125 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Cush v Dillon (2011) 243 CLR 298; [2011] HCA 30 Ekermawi v Harbour Radio Pty Ltd, Ekermawi v Nine Network Television Pty Ltd [2010] NSWADT 145 El Chami v Mackie [2019] NSWSC 821 Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231 Jones v Sutton [2004] NSWCA 439; 61 NSWLR 614; [2005] NSWCA 203 Lokmeh v Harbour Radio Pty Ltd [2015] NSWDC 172 Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 Tallglen Pty Ltd v Pay TV Holdings Pty Ltd (1996) 22 ACSR 130 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Tyrrell v The Owners Corporation Strata Scheme 40022 [2007] NSWCA 8 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712
Texts Cited:	P Taylor SC, Justice G Bellew, M Meek SC, Dr E Elms OAM, Ritchie’s Uniform Civil Procedure New South Wales (LexisNexis Australia) “Perverse jury verdicts in New South Wales defamation trials” (2003) 11 TLJ 28 R Baker and J Leslie, “Rethinking the defamation jury” (2008) 13 MALR 422 R Coleman, “Ruddock’s plan no longer such a fright” (2004) Gazette of Law & Journalism
Category:	Procedural rulings
Parties:	Plaintiff: Paul William Nunn Defendant: Glenn Aylward
Representation:	Counsel: Plaintiff: Mr A Nelson Defendant: Mr M Clarke Solicitors: Plaintiff: Gorval Lynch Defendant: Collas Moro Ross Lawyers
File Number(s):	2020/00322020