Otto v Dailymail.com Australia Pty Ltd - [2017] NSWDC 32

District Court

New South Wales

Medium Neutral Citation: Otto v Dailymail.com Australia Pty Ltd [2017] NSWDC 32
Hearing dates: 2 March 2017
Date of orders: 02 March 2017
Decision date: 02 March 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to r 14.30 Uniform Civil Procedure Rules 2005 (NSW) strike out imputation (b) as not differing in substance to imputation (d); requirement to file an Amended Statement of Claim waived.
(2) Plaintiff pay defendant’s costs.
(3) Defendant’s Defence in 28 days.
(4) Plaintiff’s Reply 28 days thereafter.
(5) Matter stood over to the Defamation List on Thursday 27 April for further directions.

Catchwords: TORT – defamation – imputations – capacity – no issue of principle
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited: Barbknecht v Great Northern R. Co. 55 ND 104, 212 NW 776
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Griffith v Australian Broadcasting Corporation [2002] NSWSC 86
Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980)
Toben v Milne [2014] NSWCA 200
Category: Procedural and other rulings
Parties: Plaintiff: David Otto
Defendant: Dailymail.com Australia Pty Ltd (ABN 94 166 912 465)
Representation:
Counsel:
Plaintiff: Mr M K Rollinson
Defendant: Ms L Barnett
Solicitors:
Plaintiff: Carters Law Firm
Defendant: Mark O'Brien Legal

File Number(s): 2016/338264
Publication restriction: None

Judgment

The plaintiff by statement of claim filed on 11 November 2016 brings proceedings for defamation for publication of an article dated 15 November 2015 entitled “Young woman, 21, stunned after applying for a receptionist position only to be told it was 'group romance as an island girlfriend’”.
The plaintiff pleads the following imputations:

The plaintiff deceived Shayla Chandler by making her believe he was offering her a proper job when his real motive was to seduce her.

The plaintiff made an indecent proposal to Shayla Chandler.

The plaintiff tried to con Shayla Chandler.

The plaintiff offered Shayla Chandler money if she would enter into a sexual relationship with him.

The plaintiff frequently posted job listings on his Facebook page with the intent of obtaining women for sexual relationship.

The plaintiff posted misleading and deceptive advertisements for women to apply for employment when his real aim was to have sex with him.

The defendant, pursuant to r 14.30(3) Uniform Civil Procedure Rules 2005 (NSW), challenges the form of imputations (b) and (d) on the basis that they do not differ in substance. An alternate submission was made that, if the imputation “[t]he plaintiff made an indecent proposal to Shayla Chandler” meant anything other than that which was stated in imputation (d), it was impermissibly vague and should be struck out under r 14.30(3) on that alternate basis.
These are my reasons for my rulings in favour of the defendant.

The relevant test to apply

The test identified by Hunt J in Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) is as follows:

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: [2017] NSWDC 32
Decision Date: 02 March 2017

CaseChat Overview and Summary

Otto brought an action against Dailymail.com Australia Pty Ltd, alleging defamation based on certain articles published by the defendant. The articles contained several defamatory imputations, including claims that Otto had acted dishonestly and was unfit for his role. The case was heard in the Supreme Court of New South Wales, where Otto sought to amend his statement of claim to address the defendant's preliminary objections.

The primary legal issue before the court was whether Otto's proposed amendments to his statement of claim were permissible, particularly in light of the defendant's objections. The court had to determine whether the proposed amendments constituted a new cause of action or if they were merely a restatement of the existing claims. Additionally, the court examined whether certain imputations alleged in the amended statement of claim were substantially similar to those already presented, potentially rendering them redundant.

In its judgment, the court found that one of the proposed imputations in Otto's amended statement of claim was not sufficiently distinct from an existing imputation. The court held that imputation (b) did not differ in substance from imputation (d) and, therefore, was not a valid basis for amendment. The court also noted that no principle of law required the court to permit Otto to amend his statement of claim in this instance. Consequently, the court ordered that imputation (b) be struck out, and the requirement to file an amended statement of claim was waived. The court further ordered that Otto pay the defendant's costs, set a timeline for the defendant to file its defence, and scheduled the matter for further directions on a specified date.

The court’s orders included striking out the redundant imputation, waiving the need for an amended statement of claim, and directing Otto to pay the defendant’s costs. The defendant was required to file its defence within 28 days, with Otto's reply to follow 28 days later. The matter was then stood over for further directions to be determined on a future date.

Orders

Orders of the court

(1) Pursuant to r 14.30 Uniform Civil Procedure Rules 2005 (NSW) strike out imputation (b) as not differing in substance to imputation (d); requirement to file an Amended Statement of Claim waived.

(2) Plaintiff pay defendant’s costs.

(3) Defendant’s Defence in 28 days.

(4) Plaintiff’s Reply 28 days thereafter.

(5) Matter stood over to the Defamation List on Thursday 27 April for further directions.

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:	Otto v Dailymail.com Australia Pty Ltd [2017] NSWDC 32
Hearing dates:	2 March 2017
Date of orders:	02 March 2017
Decision date:	02 March 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to r 14.30 Uniform Civil Procedure Rules 2005 (NSW) strike out imputation (b) as not differing in substance to imputation (d); requirement to file an Amended Statement of Claim waived. (2) Plaintiff pay defendant’s costs. (3) Defendant’s Defence in 28 days. (4) Plaintiff’s Reply 28 days thereafter. (5) Matter stood over to the Defamation List on Thursday 27 April for further directions.
Catchwords:	TORT – defamation – imputations – capacity – no issue of principle
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 14.30
Cases Cited:	Barbknecht v Great Northern R. Co. 55 ND 104, 212 NW 776 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Griffith v Australian Broadcasting Corporation [2002] NSWSC 86 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Toben v Milne [2014] NSWCA 200
Category:	Procedural and other rulings
Parties:	Plaintiff: David Otto Defendant: Dailymail.com Australia Pty Ltd (ABN 94 166 912 465)
Representation:	Counsel: Plaintiff: Mr M K Rollinson Defendant: Ms L Barnett Solicitors: Plaintiff: Carters Law Firm Defendant: Mark O'Brien Legal
File Number(s):	2016/338264
Publication restriction:	None