Sheppard v Nine Network Australia Pty Ltd - [2018] QDC 158

DISTRICT COURT OF QUEENSLAND

CITATION:

Sheppard v Nine Network Australia Pty Ltd & Ors [2018] QDC 158

PARTIES:

GRAHAM SHEPPARD

(plaintiff)

v

NINE NETWORK AUSTRALIA PTY LTD
ACN 008 685 407

(first defendant)

and

TCN CHANNEL NINE PTY LTD
ACN 001 549 560

(second defendant)

and

QUEENSLAND TELEVISION LIMITED
ACN 009 674 373
(third defendant)

FILE NO/S:

1418 of 2017

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

Brisbane District Court

DELIVERED ON:

10 August 2018

DELIVERED AT:

Brisbane

HEARING DATE:

3 August 2018

JUDGE:

Rosengren DCJ

ORDER:

1.   The application to strike out paragraph 20(g)(v)(A)(II) of the fourth amended defence is refused.

2.   The application to strike out paragraphs 20(g)(v)(B) and 20(g)(v)(C) of the fourth amended defence is granted and these paragraphs are struck out.

3.   I give liberty to both parties to apply.

4.   I will hear the parties as to costs.

CATCHWORDS:

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – FRIVOLOUS PLEADING – CAUSING DELAY IN THE PROCEEDINGS - where the plaintiff seeks an order striking out three paragraphs in the defence – where the defendant opposes the application on the basis that regard must be had to the cumulative effect of the paragraphs as well as paragraphs of the truth defence which are unchallenged – where the defendant has elected a jury trial - where the defence case is a circumstantial one – where the defendant pleads common law and statutory justification – whether or not the impugned paragraphs are facts which support a reasonable and definite inference that each of the imputations are substantially true

Defamation Act 2005 (Qld), ss 25, 30,

Uniform Civil Procedure Rules 1999, r 171

Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139 – cited
Woolcott v Seeger [2010] WASC 19 - cited

John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 - cited

Luxton v Vines (1952) 85 CLR 352 – cited
Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 - cited
Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 - cited
Williams and Humbert Ltd v W & H Trade Marks [1986] 1 AC 368 - cited
Rush v Nationwide News [2018] FCA 357 - cited
Gallagher v Destiny Publications Pty Ltd [2015] WASC 475 - cited
Transport Industries Insurance Co Ltd v Longmuir [1997] VR 125 – cited

COUNSEL:

Mr A P J Collins for the plaintiff
Mr P McCafferty for the defendants

SOLICITORS:

O’Shea Lawyers for the plaintiff
Mark O’Brien Legal for the defendants

The plaintiff has sued the defendants for damages for defamation. He seeks an order that seven subparagraphs of the fourth amended defence be struck out pursuant to r 171 of the Uniform Civil Procedure Rules 1999 (‘the UCPR’). Of these, four have been resolved without the need for the determination of the court.
There was no relevant dispute between the parties as to either the substantive law which informed the analysis…

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: [2018] QDC 158
Decision Date: 10 August 2018

CaseChat Overview and Summary

In the matter of Sheppard v Nine Network Australia Pty Ltd, the plaintiff sought to have three paragraphs of the defendant’s defence struck out on the basis that they disclosed no reasonable cause of action or defence. The defendant opposed the application, arguing that the cumulative effect of the paragraphs and other unchallenged paragraphs should be considered. The case was before the court to determine whether the paragraphs in question supported a reasonable and definite inference that each of the imputations were substantially true. The plaintiff, Sheppard, contended that certain paragraphs in the defence were frivolous and would cause an unnecessary delay in the proceedings. Conversely, the defendant, Nine Network Australia Pty Ltd, maintained that the paragraphs in question were integral to their defence and should not be struck out.

The court considered the arguments from both parties and focused on the substance of the pleaded defence. It was necessary to assess whether the paragraphs in dispute supported a reasonable and definite inference that each of the imputations were substantially true. The court acknowledged that the defendant's case was circumstantial and relied on common law and statutory justifications. The judge scrutinised each paragraph individually and in the context of the defence as a whole. Ultimately, the court determined that while some paragraphs failed to meet the threshold of disclosing a reasonable cause of action, others were integral to the defendant's case and could not be dismissed outright.

The court held that the application to strike out paragraph 20(g)(v)(A)(II) of the fourth amended defence was refused, as it supported a reasonable and definite inference that the imputations were substantially true. However, the applications to strike out paragraphs 20(g)(v)(B) and 20(g)(v)(C) were granted, as these paragraphs did not meet the necessary criteria. The judge also provided liberty to both parties to apply for further orders if necessary and directed that the matter would be heard regarding costs.

Orders

Orders of the court

1. The application to strike out paragraph 20(g)(v)(A)(II) of the fourth amended defence is refused.

2. The application to strike out paragraphs 20(g)(v)(B) and 20(g)(v)(C) of the fourth amended defence is granted and these paragraphs are struck out.

3. I give liberty to both parties to apply.

4. I will hear the parties as to costs.

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.

CITATION:	Sheppard v Nine Network Australia Pty Ltd & Ors [2018] QDC 158
PARTIES:	GRAHAM SHEPPARD (plaintiff) v NINE NETWORK AUSTRALIA PTY LTD ACN 008 685 407 (first defendant) and TCN CHANNEL NINE PTY LTD ACN 001 549 560 (second defendant) and QUEENSLAND TELEVISION LIMITED ACN 009 674 373 (third defendant)
FILE NO/S:	1418 of 2017
DIVISION:	Civil
PROCEEDING:	Application
ORIGINATING COURT:	Brisbane District Court
DELIVERED ON:	10 August 2018
DELIVERED AT:	Brisbane
HEARING DATE:	3 August 2018
JUDGE:	Rosengren DCJ
ORDER:	1. The application to strike out paragraph 20(g)(v)(A)(II) of the fourth amended defence is refused. 2. The application to strike out paragraphs 20(g)(v)(B) and 20(g)(v)(C) of the fourth amended defence is granted and these paragraphs are struck out. 3. I give liberty to both parties to apply. 4. I will hear the parties as to costs.
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE – FRIVOLOUS PLEADING – CAUSING DELAY IN THE PROCEEDINGS - where the plaintiff seeks an order striking out three paragraphs in the defence – where the defendant opposes the application on the basis that regard must be had to the cumulative effect of the paragraphs as well as paragraphs of the truth defence which are unchallenged – where the defendant has elected a jury trial - where the defence case is a circumstantial one – where the defendant pleads common law and statutory justification – whether or not the impugned paragraphs are facts which support a reasonable and definite inference that each of the imputations are substantially true Defamation Act 2005 (Qld), ss 25, 30, Uniform Civil Procedure Rules 1999, r 171 Queensland Newspapers Propriety Limited v Palmer [2012] 2 Qd R 139 – cited Woolcott v Seeger [2010] WASC 19 - cited John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 - cited Luxton v Vines (1952) 85 CLR 352 – cited Royalene Pty Ltd v Registrar of Titles [2007] QSC 059 - cited Favell v Queensland Newspapers Pty Ltd [2004] QCA 135 - cited Williams and Humbert Ltd v W & H Trade Marks [1986] 1 AC 368 - cited Rush v Nationwide News [2018] FCA 357 - cited Gallagher v Destiny Publications Pty Ltd [2015] WASC 475 - cited Transport Industries Insurance Co Ltd v Longmuir [1997] VR 125 – cited
COUNSEL:	Mr A P J Collins for the plaintiff Mr P McCafferty for the defendants
SOLICITORS:	O’Shea Lawyers for the plaintiff Mark O’Brien Legal for the defendants