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Setka v Abbott

Setka v Abbott

Case [2013] VSCA 345 3 December 2013

Civil Litigation & Procedure

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2012 0231

JOHN SETKA	Appellant
v
THE HONOURABLE TONY ABBOTT MP	First Respondent
AUSTRALIAN NEWS CHANNEL PTY LTD (ACN 068 954 478)	Second Respondent

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JUDGE	WARREN CJ, ASHLEY and WHELAN JJA
WHERE HELD	Melbourne
DATE OF HEARING	28 November 2013
DATE OF ORDERS	28 November 2013
DATE OF PUBLICATION OF REASONS	3 December 2013
MEDIUM NEUTRAL CITATION	[2013] VSCA 345
JUDGMENT APPEALED FROM	Setka v Abbott [2012] VSC 534 (Beach J)

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Interlocutory appeal – Leave to appeal – Defamation – Application to strike out defences - Grounds of appeal (with one exception) not argued before trial judge, nor relied upon in the original Notice of Appeal – Applicant plaintiff put on notice by respondent defendants, months before hearing of leave application, that objection taken to new grounds being pursued - No steps taken by the applicant’s advisers to agitate new matters raised before trial judge – Whether Court should entertain interlocutory appeal on the basis of a point of law not advanced below – Over-arching obligations under the Civil Procedure Act 2010 – Application for leave to appeal dismissed.

Metwally v University of Wollongong (No 2) (1985) 59 ALJR 481; Whisprun Pty Ltd v Dixon (2003) 200 ALR 447; Suttor v Gundowda (1950) 81 CLR 418; R v Chaouk [2013] VSCA 99; Yara Australia P/L v Oswal [2013] VSCA 337.

Defamation Act 2005; Civil Procedure Act 2010.

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APPEARANCES:

Counsel

Solicitors

For the Appellant

G.W. Reynolds SC
and R.L. Enbom

Slater & Gordon Lawyers

For the First Respondent

For the Second Respondent

M.F. Wheelahan SC
and T.J.F. McEvoy

S. O’Meara SC
and A. Strahan

Arnold Bloch Leibler

Johnson Winter Slattery

THE COURT:

On 28 November last, for reasons to be later published, the Court dismissed a summons dated 26 November 2012 by which the plaintiff (it is convenient to so describe him throughout these Reasons) sought leave to appeal against orders made by Beach J (as his Honour then was) on 12 November 2012.[1] The Court reserved the costs of the application until the parties had the opportunity of studying its Reasons and making written submissions.
[1]In doing so, the Court stated that it was without prejudice to the plaintiff’s right to bring a fresh application for leave to appeal on ground 2 set out in a Notice of Appeal dated 20 March 2013. And, as will been, the Court did not deal with the merits of grounds 1, 3, 4 and 5 set out in that document.

These are our Reasons.

The plaintiff sues the defendants for damages for defamation. He commenced his claim by writ filed 15 May 2012. The defamation is alleged to have been made in a speech by the first defendant on 10 February 2012, it being republished by the second defendant on the same day.

The plaintiff relies upon four imputations which, he pleads, were conveyed by the speech. It is unnecessary to set them out.

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 Setka v Abbott

Details

AGLC: Setka v Abbott [2013] VSCA 337
Case: [2013] VSCA 345
Decision Date: 3 December 2013

CaseChat Overview and Summary

In the Supreme Court of Victoria, Setka sought leave to appeal a decision relating to a defamation claim against Abbott. The dispute centred on the application to strike out certain defences raised by the defendant. The court was tasked with determining whether it should entertain an interlocutory appeal based on grounds not previously argued before the trial judge or relied upon in the original notice of appeal.

The legal issues before the court included whether the applicant’s advisers had taken any steps to raise new matters before the trial judge, given the respondent defendants had objected to the introduction of these new grounds. The court examined the obligations under the Civil Procedure Act 2010 and considered precedent cases, such as Metwally v University of Wollongong, Whisprun Pty Ltd v Dixon, Suttor v Gundowda, R v Chaouk, and Yara Australia P/L v Oswal, to guide its decision.

The court found that the applicant's advisers had not taken any steps to agitate the new matters raised before the trial judge, despite being put on notice months before the hearing of the leave application. The court held that it should not entertain the interlocutory appeal on the basis of a point of law not advanced below. The overarching obligations under the Civil Procedure Act 2010 meant the court would not entertain the appeal on grounds not previously argued or relied upon. Therefore, the application for leave to appeal was dismissed.

No specific orders were made beyond the dismissal of the application for leave to appeal.

Orders