Schiff v Nine Network Australia Pty Ltd (No 4) - [2023] FCA 688

FEDERAL COURT OF AUSTRALIA
Schiff v Nine Network Australia Pty Ltd (No 4) [2023] FCA 688

File number(s): NSD 1086 of 2021

Judgment of: JACKMAN J

Date of judgment: 23 June 2023

Catchwords: DEFAMATION – application for leave to further amend defence – whether particulars of directly relevant background context in mitigation of damages defective – whether the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 is confined to evidence of “misconduct” as opposed to “facts” – whether evidence of opinions held by regulators or agencies as to the existence of facts is admissible – extent to which evidence of beliefs or opinions held by the applicant is admissible – discretionary case management principles guide the application of the Burstein principle to applications for leave to amend particulars – leave refused in respect of some particulars, granted in respect of others

Legislation:
Evidence Act 1995 (Cth) ss 55, 56, 135

Federal Court of Australia Act 1976 (Cth) s 37M

Cases cited:
Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632

Barilaro v Google LLC [2022] FCA 650

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Channel 7 Sydney Pty Ltd v Mahommed [2010] NSWCA 335

Dingle v Associated Newspapers Ltd [1964] AC 371

Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47

Edgington v Fitzmaurice (1884) 29 Ch D 459

Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547

Goody v Odhams Press Ltd [1967] 1 QB 333

Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361

Kumova v Davison (No 2) [2023] FCA 1

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116

Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550

Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120

Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336

Scott v Sampson (1882) 8 QBD 491

Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469

Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2009] QB 600

Division: General Division

Registry: New South Wales

National Practice Area: Other Federal Jurisdiction

Number of paragraphs: 40

Date of hearing: 19 June 2023

Counsel for the Applicant: Ms S Chrysanthou SC and Mr N Olson

Solicitor for the Applicant: Kennedys (Australasia) Partnership

Counsel for the Respondents: Mr D Sibtain SC and Mr M Lewis

Solicitor for the Respondents: Minter Ellison

ORDERS

NSD 1086 of 2021

BETWEEN:
PETER DAVID SCHIFF

Applicant

AND:
NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407

First Respondent

THE AGE COMPANY PTY LTD

Second Respondent

NICHOLAS MCKENZIE (and others named in the Schedule)

Third Respondent

ORDER MADE BY:

JACKMAN J

DATE OF ORDER:

23 JUNE 2023

THE COURT ORDERS THAT:
1.Leave be granted to the respondents to file a Further Amended Defence in accordance with these reasons.
2.The respondents pay the applicant’s costs thrown away by the…

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: [2023] FCA 688
Decision Date: 23 June 2023

CaseChat Overview and Summary

Schiff v Nine Network Australia Pty Ltd (No 4) involved a defamation case where the plaintiff sought damages from the defendants, who were media entities, over a broadcast that allegedly defamed him. The defendants sought leave to further amend their defence, particularly regarding the background context of the broadcast to mitigate damages. The court had to decide whether certain particulars concerning the context were admissible under the Burstein principle and whether evidence of opinions held by regulators or agencies, or the applicant’s beliefs, could be considered in this context.

The court held that evidence of facts or misconduct relevant to the defamatory publication could be considered under the Burstein principle. However, evidence of opinions held by regulators or agencies, as well as the applicant’s own beliefs, were not admissible as they did not pertain to facts or misconduct. The court applied discretionary case management principles to the application for leave to amend particulars, balancing the interests of the parties. The court granted leave for some particulars to be amended, excluding those that were not directly relevant to the facts or misconduct, and required the defendants to pay costs for the amendments and the application.

The court's decision limited the scope of the defendants' proposed amendments, allowing only those particulars directly relevant to the facts or misconduct. It also ordered the defendants to pay the plaintiff's costs for the application to amend the defence and for the costs thrown away by the amendments. The matter was set for a further case management hearing to establish a timetable for preparing the case for trial.

ORDERS:
1. Leave is granted to the respondents to file a Further Amended Defence in accordance with the court's reasons.
2. The respondents are ordered to pay the applicant’s costs thrown away by the amendment to their Amended Defence and the applicant’s costs of the present application to file the Further Amended Defence.
3. The matter is to stand over to 9.30 am on 30 June 2023 for a case management hearing, including the allocation of a hearing date.

Orders

Orders of the court

1. Leave be granted to the respondents to file a Further Amended Defence in accordance with these reasons.

2. The respondents pay the applicant’s costs thrown away by the amendment to their Amended Defence, and the applicant’s costs of the present application to file the Further Amended Defence.

3. The matter stand over to 9.30 am on 30 June 2023 for a case management hearing, including the allocation of a hearing date.

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

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

Particular (38) refers to a publication in The New York Times to similar effect to the television broadcast which is the subject matter of these proceedings, and alleging that the applicant did not commence proceedings against the publisher of that newspaper. The fact that Mr Schiff’s reputation may have been damaged by another publication to the same effect as the matter complained of in these proceedings is legally irrelevant and cannot be taken into account as a basis for reducing the damages awarded to him: Dingle v Associated Newspapers Ltd [1964] AC 371 at 396 (Lord Radcliffe), 405-6 (Lord Cohen), 410-412 (Lord Denning); Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 at [78]-[84] (Bromwich J); Barilaro v Google LLC [2022] FCA 650 at [285] (Rares J). Further, the fact that Mr Schiff has not sued a US publication does not mean that he has “refrained” from complaining about reputational damage suffered in the United States. He is entitled, in these proceedings, to recover damages in respect of all loss and damage which is causally attributable to the respondents’ publication, wherever in the world that loss and damage occurred: Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47 at [469]-[489] (Katzmann J).Conclusion Accordingly, I grant leave to the respondents to file a Further Amended Defence, in accordance with the draft which was served pursuant to the order which I made on 14 April 2023, but limiting the particulars of background facts in paragraph 14 to the particulars which I have indicated above (as amended) should be permitted. As to costs, the respondents are seeking to amend their pleadings, and must pay the costs thrown away by those amendments. As to the costs of the application to amend, the success enjoyed by the respondents concerns only seven of the thirty-eight contested particulars (two of them being uncontested). Five out of those seven particulars were further amended during the course of oral argument before me. In those circumstances, the applicant was justified in opposing leave to file the proposed Further Amended Defence, and has been substantially successful in its opposition. Accordingly, in my view, the respondents should pay the applicant’s costs of the application to amend the Further Amended Defence. I will list the matter at 9.30 am on 30 June 2023 for a further case management hearing to lay down a timetable for the preparation of the matter for hearing. I propose to fix a hearing date on that occasion.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

File number(s):	NSD 1086 of 2021
Judgment of:	JACKMAN J
Date of judgment:	23 June 2023
Catchwords:	DEFAMATION – application for leave to further amend defence – whether particulars of directly relevant background context in mitigation of damages defective – whether the principle in Burstein v Times Newspapers Ltd [2001] 1 WLR 579 is confined to evidence of “misconduct” as opposed to “facts” – whether evidence of opinions held by regulators or agencies as to the existence of facts is admissible – extent to which evidence of beliefs or opinions held by the applicant is admissible – discretionary case management principles guide the application of the Burstein principle to applications for leave to amend particulars – leave refused in respect of some particulars, granted in respect of others
Legislation:	Evidence Act 1995 (Cth) ss 55, 56, 135 Federal Court of Australia Act 1976 (Cth) s 37M
Cases cited:	Australian Broadcasting Corporation v Chau Chak Wing [2019] FCAFC 125; (2019) 271 FCR 632 Barilaro v Google LLC [2022] FCA 650 Burstein v Times Newspapers Ltd [2001] 1 WLR 579 Channel 7 Sydney Pty Ltd v Mahommed [2010] NSWCA 335 Dingle v Associated Newspapers Ltd [1964] AC 371 Duma v Fairfax Media Publications Pty Ltd (No 3) [2023] FCA 47 Edgington v Fitzmaurice (1884) 29 Ch D 459 Fairfax Digital Australia & New Zealand Pty Ltd v Kazal [2018] NSWCA 77; (2018) 97 NSWLR 547 Goody v Odhams Press Ltd [1967] 1 QB 333 Hayson v The Age Company Pty Ltd (No 2) [2020] FCA 361 Kumova v Davison (No 2) [2023] FCA 1 Pamplin v Express Newspapers Ltd [1988] 1 WLR 116 Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550 Schiff v Nine Network Australia Pty Ltd (No 2) [2022] FCA 1120 Schiff v Nine Network Australia Pty Ltd (No 3) [2023] FCA 336 Scott v Sampson (1882) 8 QBD 491 Turner v News Group Newspapers Ltd [2006] EWCA Civ 540; [2006] 1 WLR 3469 Warren v The Random House Group Ltd [2008] EWCA Civ 834; [2009] QB 600
Division:	General Division
Registry:	New South Wales
National Practice Area:	Other Federal Jurisdiction
Number of paragraphs:	40
Date of hearing:	19 June 2023
Counsel for the Applicant:	Ms S Chrysanthou SC and Mr N Olson
Solicitor for the Applicant:	Kennedys (Australasia) Partnership
Counsel for the Respondents:	Mr D Sibtain SC and Mr M Lewis
Solicitor for the Respondents:	Minter Ellison

NSD 1086 of 2021
BETWEEN:	PETER DAVID SCHIFF Applicant
AND:	NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 First Respondent THE AGE COMPANY PTY LTD Second Respondent NICHOLAS MCKENZIE (and others named in the Schedule) Third Respondent
ORDER MADE BY:	JACKMAN J
DATE OF ORDER:	23 JUNE 2023