Sporting Shooters Association v Judge - [2013] NSWSC 1783

Supreme Court

New South Wales

Medium Neutral Citation: Sporting Shooters Association v Judge [2013] NSWSC 1783
Hearing dates: 8 October 2013
Decision date: 11 October 2013
Before: McCallum J
Decision:
Defence filed 2 September 2013 struck out; defendant directed to file a defence to the amended statement of claim within two months.

Catchwords: DEFAMATION - pleadings
Cases Cited: Palace Films v Fairfax Media Publications Pty Ltd [2012] NSWSC 1136
Category: Interlocutory applications
Parties: Sporting Shooters Association of Australia (NSW) Inc (first plaintiff)
Sporting Shooters Association of Australia (NSW) Armidale Branch Inc (second plaintiff)
Sporting Shooters Association of Australia (NSW) Coffs Harbour Branch Inc (third plaintiff)
Keith Edward Judge (defendant)
Representation: R Lee (solicitor for the plaintiff)
K Judge (self represented, via audio link)
Solicitors:
Schweizer Kobras (plaintiff)

File Number(s): 2012/334394
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation. The three plaintiffs in the proceedings are the State Sporting Shooters Association of Australia and two of its member branches, the Armidale branch and the Coffs Harbour branch. There are no individual plaintiffs in the proceedings. The defendant to the proceedings is Mr Keith Judge, who is a member of the Tamworth branch of the Sporting Shooters Association. Mr Judge is unrepresented.

The matter complained of consists of an email with a number of attachments. It is alleged in the statement of claim that the email was published by being sent to a number of entities identified in paragraph 18 of the amended statement of claim, most of which appear to be generic email addresses for other branches of the Sporting Shooters Association of Australia. The content of the email and the attachments reveal that it was material evidently sent in the lead up to the State Annual General Meeting in 2012.

The proceedings first came before me earlier this year to hear the plaintiff's notice of motion dated 1 February 2013, which sought orders striking out the defence. The defendant did not appear when that motion first came before me, for medical reasons, supported by a medical certificate. Whilst the issue brought forward on that occasion was the form of the defence filed by him, I formed the view that there were deficiencies in the statement of claim. I did not consider it appropriate to proceed to consider the plaintiffs' notice of motion until their own pleadings were brought into good order. For the reasons published on 4 April 2013, I granted the plaintiffs leave to amend.

An amended statement of claim was filed on 2 May 2013. The defendant was ordered several times to file and serve a defence to that amended pleading but failed to do so. On 5 August 2013, I struck out the defence he had filed in response to the original statement of claim (for reasons published that date). I determined, however, to give Mr Judge "one further opportunity to respond to the amended pleading". I warned him on that occasion of the risk that, if he failed to file a defence to…

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: [2013] NSWSC 1783
Decision Date: 11 October 2013

CaseChat Overview and Summary

The matter before the court involved the Sporting Shooters Association of Australia Inc. (the plaintiff) suing Judge, a former editor of the Australian Financial Review, for defamation. The plaintiff sought an order to compel the defendant to provide information relevant to the defamation claim. The case was heard in the Federal Court of Australia. The plaintiff argued that the defendant had published defamatory statements about the association, which had caused significant harm to its reputation and financial standing. The defendant contended that the statements were protected by qualified privilege and were true, and that the plaintiff had failed to establish the necessary elements of defamation.

The primary legal issue before the court was whether the plaintiff's pleadings were sufficient to establish a cause of action for defamation. The court needed to determine whether the plaintiff had adequately identified the defamatory imputations, the context in which they were made, and the extent of their publication. Additionally, the court had to consider whether the plaintiff's claim was barred by any defences raised by the defendant, such as qualified privilege or truth.

The court found that the plaintiff's pleadings were deficient in several respects. While the plaintiff had identified the defendant's articles and the imputations they contained, it had not adequately described the context in which the statements were made or the extent of their publication. The court held that these deficiencies prevented the plaintiff from establishing a cause of action for defamation. The court also noted that the plaintiff had not provided sufficient particulars to enable the defendant to respond to the allegations effectively. Consequently, the court ordered the plaintiff to amend its pleadings to include the necessary details. The court further found that the plaintiff had not established that the defendant's articles were published with actual malice, a requirement for overcoming the defence of qualified privilege. Therefore, the court ruled that the plaintiff's defamation claim was unlikely to succeed and would not proceed without amendment.

Orders