O'Shanassy v Turland (No 2) - [2025] NSWDC 23

District Court

New South Wales

Medium Neutral Citation: O'Shanassy v Turland (No 2) [2025] NSWDC 23
Hearing dates: 13 February 2025
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1)   Plaintiff’s application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs.
(2) Plaintiff’s application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge.
(3)   General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024.
(4)   Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument.

Catchwords:
TORT – defamation – jury trial fixed to commence on 7 March 2025 – application by plaintiff to challenge the contextual imputations on the basis that they did not differ in substance and, if separately conveyed, were incapable of “swamping” the plaintiff’s imputations – whether application should be determined now or stood over to the trial – application stood over to the trial

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 98
Defamation Act 2005 (NSW), s 26(1)(a) and (b)
Environment Planning and Assessment Act 1979 (NSW), s 125(1)
Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 42.20

Cases Cited:
Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299
Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69
Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98
McGrane v BTQ Channel 7 [2011] QSC 290
McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133
Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365
Pettiona v Nationwide News Pty Ltd [2019] FCA 1690
Plato Films Ltd v Speidel [1961] AC 1090
Seven Network (Operations) Limited v Greiss [2024] FCAFC 162
Woolf v Brandt [2023] NSWCA 290

Texts Cited:
D K Rolph, Rolph on Defamation (2nd ed., 2024, Thomson Reuters) at 313
NSW Law Reform Commission, Defamation [1971] LRC 11
NSW Legislative Assembly, Defamation Bill Second Reading (Hansard), 27 February 1974 at 817, 819, 854

Category: Procedural rulings
Parties: Paul O’Shanassy (Plaintiff)
Gary Turland (Defendant)
Representation:
Counsel:
Mr White SC with Mr A Flick (Plaintiff)
Mr Sibtain SC with Mr T Senior (Defendant)
Solicitors:
Agility Legal (Plaintiff)
RGSLAW (Defendant)

File Number(s): 2017/00384953
Publication restriction: Nil

Judgment

The applications before the court

This defamation action is fixed for hearing as a 10-day jury trial commencing on Monday 3 March 2025 before Wass SC DCJ.
The claim arises from two slanders made in two council meetings by the defendant, a councillor at the Wingecarribee Shire Council,…

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.

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Details

Case: [2025] NSWDC 23
Decision Date: 13 February 2025

CaseChat Overview and Summary

In the matter of O'Shanassy v Turland, the plaintiff sought to challenge certain imputations in the context of a defamation case. The case is set for a jury trial on 7 March 2025. The plaintiff argued that the contextual imputations in question did not differ in substance from the imputations he sought to rely on, and that if these contextual imputations were conveyed separately, they could not overwhelm the plaintiff's imputations. The plaintiff asked for a determination of these issues prior to the trial.

The court was required to decide whether the application should be determined at that time or if it should be deferred until the trial. The plaintiff requested rulings on specific sections of the Defamation Act 2005 (NSW), particularly in relation to the plaintiff's imputations and the contextual imputations. The court needed to weigh the appropriateness of resolving these issues prior to the trial against the potential impact on the proceedings.

The court determined that the application should be deferred until the trial. The plaintiff's application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson was refused with costs. Additionally, the plaintiff's application for rulings pursuant to UCPR r 14.28 concerning the sections of the Defamation Act 2005 (NSW) was stood over to the trial judge. The court also granted general access to the documents produced by Westpac in response to the subpoena issued on 18 December 2024. The judge was instructed to provide reasons for her decision and, in the case of the subpoena argument, to provide a timetable for the costs argument.

Orders

Orders of the court

(1) Plaintiff’s application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs.

(2) Plaintiff’s application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge.

(3) General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024.

(4) Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	O'Shanassy v Turland (No 2) [2025] NSWDC 23
Hearing dates:	13 February 2025
Date of orders:	13 February 2025
Decision date:	13 February 2025
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff’s application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs. (2) Plaintiff’s application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge. (3) General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024. (4) Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument.
Catchwords:	TORT – defamation – jury trial fixed to commence on 7 March 2025 – application by plaintiff to challenge the contextual imputations on the basis that they did not differ in substance and, if separately conveyed, were incapable of “swamping” the plaintiff’s imputations – whether application should be determined now or stood over to the trial – application stood over to the trial
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 98 Defamation Act 2005 (NSW), s 26(1)(a) and (b) Environment Planning and Assessment Act 1979 (NSW), s 125(1) Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 42.20
Cases Cited:	Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175 Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299 Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69 Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98 McGrane v BTQ Channel 7 [2011] QSC 290 McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133 Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365 Pettiona v Nationwide News Pty Ltd [2019] FCA 1690 Plato Films Ltd v Speidel [1961] AC 1090 Seven Network (Operations) Limited v Greiss [2024] FCAFC 162 Woolf v Brandt [2023] NSWCA 290
Texts Cited:	D K Rolph, Rolph on Defamation (2nd ed., 2024, Thomson Reuters) at 313 NSW Law Reform Commission, Defamation [1971] LRC 11 NSW Legislative Assembly, Defamation Bill Second Reading (Hansard), 27 February 1974 at 817, 819, 854
Category:	Procedural rulings
Parties:	Paul O’Shanassy (Plaintiff) Gary Turland (Defendant)
Representation:	Counsel: Mr White SC with Mr A Flick (Plaintiff) Mr Sibtain SC with Mr T Senior (Defendant) Solicitors: Agility Legal (Plaintiff) RGSLAW (Defendant)
File Number(s):	2017/00384953
Publication restriction:	Nil