Rush v Nationwide News Pty Ltd

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FEDERAL COURT OF AUSTRALIA

Rush v Nationwide News Pty Ltd [2018] FCA 357

File number: NSD 2179 of 2017
Judge: WIGNEY J
Date of judgment: 20 March 2018
Catchwords:

PRACTICE AND PROCEDURE – interlocutory application – application to strike out particulars of defence – whether particulars of defence should be struck out pursuant to r 16.21(1) of the Federal Court Rules 2011 (Cth) – whether the particulars of the respondent’s justification defence are inadequate and insufficient to support the defence – whether paragraphs of the defence plead facts and allegations that are irrelevant to the qualified privilege defence – whether subpoena has a legitimate forensic purpose – whether subpoena amounts to “fishing” or third party discovery to support a justification defence that has not been properly pleaded – whether orders should be made pursuant to r 2.32 of the Federal Court Rules 2011 (Cth) or r 16.21(2) of the Federal Court Rules 2011 (Cth) and s 37AF(1)(b) of the Federal Court of Australia Act 1976 (Cth) that the defence be treated as “confidential” and “not to be distributed to any third party”

DEFAMATION – whether publications contained defamatory imputations – defence of justification pursuant to s 25 of the Defamation Act 2005 (NSW) – defence of qualified privilege pursuant to s 30 of the Defamation Act 2005 (NSW) – damages, including aggravated damages, sought

Legislation:

Federal Court of Australia Act 1976 (Cth), Part VAA, ss 37AA, 37AE, 37AF, 37AF(1)(b), 37AF(1)(b)(iv), 37AG, 37AG(1), 37AG(1)(a), 37AG(1)(d)

Federal Court Rules 2011 (Cth), rr 2.32, 2.32(2), 2.32(3)(a), 16.21, 16.21(1), 16.21(1)(a), 16.21(1)(b), 16.21(1)(c), 16.21(1)(d), 16.21(1)(f), 16.21(2), 16.41

Defamation Act 1974 (NSW), ss 22, 22(1)(c), 22(2A)

Defamation Act 2005 (NSW), ss 25, 30, 30(1)(a), 30(1)(b), 30(3), 30(3)(a), 30(3)(b), 30(3)(c), 30(3)(d), 30(3)(e), 30(3)(f), 30(3)(g), 30(3)(h), 30(3)(i)

Defamation Act 2005 (WA)

Cases cited:

Agar v Hyde (2000) 201 CLR 552

Alan Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1210

Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1955) 72 WN (NSW) 250

Bailey v Beagle Management Pty Ltd (2001) 105 FCR 136

Betfair Pty Ltd v Racing New South Wales (2010) 189 FCR 356

Bianca Hope Rinehart v Georgina Hope Rinehart (2014) 320 ALR 195; [2014] FCA 1241

Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331

Channel Seven Sydney Pty Ltd v Mahommed (2010) 278 ALR 232; [2010] NSWCA 335

Crosby v Kelly [2013] FCA 1343

Dare v Pulham (1982) 148 CLR 658

Eardley v Nine Network Australia Pty Ltd [2017] NSWSC 1374

Flood v Times Newspapers Ltd [2012] UKSC 11; 2 AC 273; 4 All ER 913

Gair v Greenwood [2017] NSWSC 1652

Gallagher v Destiny Publications Pty Ltd (No 2) [2015] WASC 475

Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376

Hickinbotham v Leach (1842) 152 ER 510

Hockey v Fairfax Media Publications Pty Ltd (2015) 237 FCR 33

J’Anson v Stuart (1787) 99 ER 1357

John Fairfax Publications…

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Details
Case
[2018] FCA 357
Decision Date

CaseChat Overview and Summary

Rush brought an action against Nationwide News Pty Ltd seeking damages for defamation. The case was heard by the Federal Court. The primary issues before the court were whether certain paragraphs of the respondent's defence should be struck out for being inadequate, irrelevant, or amounting to fishing, and whether a subpoena issued by the respondent should be set aside. The court was required to determine if the particulars of the defence were sufficient to support the defence of justification, and whether they were relevant to the qualified privilege defence. Additionally, the court needed to decide if the subpoena had a legitimate forensic purpose or if it amounted to fishing or third party discovery.

The court found that several paragraphs of the respondent's defence were inadequate and irrelevant to the qualified privilege defence. The court held that these paragraphs were not necessary to support the defence of justification and that the subpoena did not have a legitimate forensic purpose. The court determined that the subpoena amounted to fishing or third party discovery and therefore set it aside. The court also found that the defence was not properly pleaded and ordered that certain paragraphs be struck out. The court further ordered that the defence be treated as confidential and not to be distributed to any third party.

In summary, the court granted the applicant's application to strike out certain paragraphs of the respondent's defence and set aside the subpoena. The court ordered that the respondent pay the applicant's costs thrown away by reason of amendments to the defence and arising from the filing of the amended defence. The court also ordered that the respondent pay the applicant's costs of and associated with the interlocutory application and the amended interlocutory application. The parties were directed to contact the associate to Wigney J to arrange for a further case management hearing.

The final orders included striking out certain paragraphs of the respondent's defence, setting aside the subpoena, and ordering the respondent to pay the applicant's costs. The court also directed the parties to arrange for a further case management hearing. These orders were made pursuant to the relevant rules of the Federal Court.

Orders

Orders of the court

1. Pursuant to r. 16.21(1) of the Federal Court Rules 2011 (Cth), paragraphs 13(a), 14 to 28 and 36.9A to 36.9C of the respondent’s amended defence filed on 15 February 2018 be struck out.

2. Pursuant to r 24.15 of the Federal Court Rules 2011 (Cth), the respondent’s subpoena issued on 14 February 2018 and served upon the Sydney Theatre Company Limited be set aside.

3. The respondents to pay the applicant’s costs thrown away by reason of amendments to the defence and arising from the filing of the amended defence.

4. The respondents to pay the applicant’s costs of and associated with the interlocutory application filed on 2 February 2018 and the amended interlocutory application filed on 20 February 2018.

5. The parties jointly contact the associate to Wigney J to arrange for the matter to be listed for a further case management hearing on a mutually convenient date.

Note: Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

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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