The Age Corporation Ltd v Beran - [2005] NSWCA 289

CITATION:
The Age Corporation Limited v. Beran [2005] NSWCA 289

HEARING DATE(S):
3 August 2005

JUDGMENT DATE:

26 August 2005

JUDGMENT OF:
Beazley JA at 1; Hodgson JA at 2; Brownie AJA at 55

DECISION:
1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal dismissed with costs

CATCHWORDS:
DEFAMATION - PRACTICE AND PROCEDURE - Two articles in newspaper - Whether open to plaintiff to plead them separately, or whether they had to be pleaded as one publication - Previous decision against plaintiff in respect of very similar publication in another newspaper - Whether proceedings an abuse of process.

CASES CITED:
Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107
Burrows v. Knightly (1987) 10 NSWLR 651
Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410
Haines v. Australian Broadcasting Corporation (1995) 43 NSWLR 404
Harris v. 718932 Pty. Limited (2003) 56 NSWLR 276
Morris v. Wentworth-Stanley [1999] QB 1004
Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130
Reichel v. Magrath (1899) 14 App Cas 665
Rippon v. Chilcotin Pty. Limited (2001) 53 NSWLR 198
Rogers v. The Queen (1994) 181 CLR 251
Ron Hodgson (Trading) Pty. Limited v. Belvedere Motors (Hurstville) Pty. Limited [1971] 1 NSWLR 472
Tsvangarai v. Special Broadcasting Service [2002] NSWSC 532

PARTIES:
The Age Corporation Limited - claimant
Roy Beran - opponent

FILE NUMBER(S):
CA 40739/04

COUNSEL:
Mr. P.W. Gray SC with Mr. T.M. Thawley for claimant
Mr. R.G. McHugh for the opponent

SOLICITORS:
Minter Ellison, Sydney for claimant
Corrs Chambers Westgarth, Sydney for opponent

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
DC8720/02

LOWER COURT JUDICIAL OFFICER:
Ashford DCJ

CA 40739/04
DC 8720/02

BEAZLEY JA
HODGSON JA
BROWNIE AJA
Friday 26 August 2005

THE AGE CORPORATION LIMITED V. BERAN

Judgment

1 BEAZLEY JA: I agree with Hodgson JA.

2 HODGSON JA: This application for leave to appeal arises from defamation proceedings in the District Court in which the opponent (the Plaintiff) sued the claimant (the Defendant) in respect of matter published in The Age newspaper of 13 February 2001.

3 On 11 August 2004, Ashford DCJ dealt with part of a Notice of Motion brought by the Defendant, and declined to make orders sought by the Defendant that the Plaintiff be directed to plead as one matter all of the matters presently contained in two separate paragraphs of the Statement of Claim.

4 On 15 December 2004, Ashford DCJ dealt with the balance of the Notice of Motion, by which the Defendant sought orders that certain imputations in the Statement of Claim be struck out or that the proceedings be dismissed or permanently stayed; and the primary judge dismissed the Notice of Motion and ordered the Defendant to pay the Plaintiff’s costs of it.

5 The Defendant seeks leave to appeal from both decisions. The application for leave has been argued on the basis that, if leave is granted, the appeal will be decided without further argument.

CIRCUMSTANCES

6 On 13 February 2001,…

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: [2005] NSWCA 289
Decision Date: 26 August 2005

CaseChat Overview and Summary

The Age Corporation Ltd appealed to the Court of Appeal of New South Wales against a decision concerning two newspaper articles published by the appellant. The respondent, Mr Beran, had commenced defamation proceedings against The Age Corporation Ltd. The central dispute revolved around whether the two articles constituted a single publication for the purposes of defamation law, or if they could be pleaded separately. This issue arose in the context of prior proceedings where the respondent had brought a claim based on a very similar publication in another newspaper, leading to a previous decision against him. The appellant argued that the current proceedings constituted an abuse of process.

The Court of Appeal was required to determine two primary legal issues. Firstly, whether the two articles published by The Age Corporation Ltd should be treated as a single publication or as separate publications for the purposes of the defamation claim. Secondly, the Court had to consider whether the respondent's current defamation proceedings, in light of the previous unsuccessful claim concerning a similar publication, amounted to an abuse of process.

The Court of Appeal ultimately dismissed the appeal. While the specific reasoning for dismissing the appeal is not detailed in the provided text, the outcome indicates that the Court did not find sufficient grounds to overturn the lower court's decision or to agree with the appellant's contention of abuse of process. Leave to appeal was granted, but the appeal itself was dismissed.

Orders

Orders of the court

1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal dismissed with 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:	The Age Corporation Limited v. Beran [2005] NSWCA 289
HEARING DATE(S):	3 August 2005
JUDGMENT DATE:	26 August 2005
JUDGMENT OF:	Beazley JA at 1; Hodgson JA at 2; Brownie AJA at 55
DECISION:	1. Leave to appeal granted, Notice of Appeal to be filed within 7 days. 2. Appeal dismissed with costs

CATCHWORDS:	DEFAMATION - PRACTICE AND PROCEDURE - Two articles in newspaper - Whether open to plaintiff to plead them separately, or whether they had to be pleaded as one publication - Previous decision against plaintiff in respect of very similar publication in another newspaper - Whether proceedings an abuse of process.
CASES CITED:	Beran v. John Fairfax Publications Pty. Limited [2004] NSWCA 107 Burrows v. Knightly (1987) 10 NSWLR 651 Gordon v. Amalgamated Television Services Pty. Limited [1980] 2 NSWLR 410 Haines v. Australian Broadcasting Corporation (1995) 43 NSWLR 404 Harris v. 718932 Pty. Limited (2003) 56 NSWLR 276 Morris v. Wentworth-Stanley [1999] QB 1004 Phelps v. Nationwide News Pty. Limited [2001] NSWSC 130 Reichel v. Magrath (1899) 14 App Cas 665 Rippon v. Chilcotin Pty. Limited (2001) 53 NSWLR 198 Rogers v. The Queen (1994) 181 CLR 251 Ron Hodgson (Trading) Pty. Limited v. Belvedere Motors (Hurstville) Pty. Limited [1971] 1 NSWLR 472 Tsvangarai v. Special Broadcasting Service [2002] NSWSC 532
PARTIES:	The Age Corporation Limited - claimant Roy Beran - opponent
FILE NUMBER(S):	CA 40739/04
COUNSEL:	Mr. P.W. Gray SC with Mr. T.M. Thawley for claimant Mr. R.G. McHugh for the opponent
SOLICITORS:	Minter Ellison, Sydney for claimant Corrs Chambers Westgarth, Sydney for opponent

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC8720/02
LOWER COURT JUDICIAL OFFICER:	Ashford DCJ