Toben v Milne - [2014] NSWCA 49

Court of Appeal

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Toben v Milne [2014] NSWCA 49
Hearing dates: 10 March 2014
Decision date: 10 March 2014
Before: Macfarlan JA at [1];
Emmett JA at [9]
Decision:
(1) Leave to appeal granted in respect of McCallum J's decision to strike imputation (a) out of the Statement of Claim.
(2) Leave to appeal otherwise refused.
(3) Costs to be costs in the appeal.
[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords: PRACTICE AND PROCEDURE - defamation proceedings - misleading and deceptive conduct claim sought to be added to statement of claim - leave to appeal refused except in relation to the striking out of one alleged imputation
Legislation Cited: Australian Consumer Law (NSW), s 18
Cases Cited: In re the Will of F B Gilbert (1946) 46 SR (NSW) 318
Category: Procedural and other rulings
Parties: Dr Fredrick Toben (Applicant)
Senator Christine Milne (Respondent)
Representation: Counsel:
C A Evatt/R Rasmussen (Applicant)
R Potter/L Maher (Respondent)
Solicitors:
Carters Law Firm (Applicant)
FitzGerald and Browne Lawyers (Tasmania) (Respondent)

File Number(s): CA 2013/334740
Decision under appeal

Jurisdiction:

9111

Citation:

Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530

Date of Decision:

2013-10-18 00:00:00

Before:

McCallum J

File Number(s):

SC 2013/200128; 2013/200157

Judgment

MACFARLAN JA: This is an application for leave to appeal against a judgment of McCallum J dated 18 October 2013 ([2013] NSWSC 1530) given in proceedings brought by Dr Toben against Senator Milne and others. By her judgment, her Honour refused leave to Dr Toben to file an Amended Statement of Claim adding a claim of misleading and deceptive conduct under s 18(1) of the Australian Consumer Law. Her Honour also struck out two particulars of defamatory imputations contained in the existing Statement of Claim.

The basis of the first aspect of the decision was that the facts pleaded did not demonstrate that the alleged conduct occurred, as is necessary, "in trade or commerce". Her Honour held that Senator Milne's reported statements were political remarks not made in the conduct of any business, trade or profession carried on by her or by Dr Toben. In particular, she rejected Dr Toben's argument that because the remarks criticised his conduct as an historian, they were made in the course of his profession as an historian.

I do not consider that there are sufficient prospects of Dr Toben succeeding on an appeal on this point to warrant leave to appeal being granted. In my view her Honour's conclusion on the point was correct.

I agree also with the primary judge's decision to strike out 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.

Continue reading Toben v Milne

Details

AGLC: Toben v Milne [2014] NSWCA 49
Case: [2014] NSWCA 49
Decision Date: 10 March 2014

CaseChat Overview and Summary

The appeal concerned a defamation proceeding between Toben (appellant) and Milne (respondent). The primary dispute involved an application to add a claim for misleading and deceptive conduct to the statement of claim, and the striking out of certain alleged imputations by the primary judge. The appeal was heard by Macfarlan and Emmett JJA in the Court of Appeal of New South Wales.

The legal issues before the Court of Appeal were whether the primary judge erred in refusing leave to amend the statement of claim to include a claim for misleading and deceptive conduct, and whether the primary judge was correct in striking out imputation (a) from the statement of claim.

The Court of Appeal granted leave to appeal only in relation to the primary judge's decision to strike out imputation (a). Leave to appeal was otherwise refused. The Court did not provide detailed reasons for its decision in the provided text, but the outcome indicates a limited success for the appellant in pursuing the appeal.

The orders of the Court were that leave to appeal be granted in respect of the striking out of imputation (a), and otherwise refused. Costs were to be costs in the appeal.

Orders

Orders of the court

(1) Leave to appeal granted in respect of McCallum J's decision to strike imputation (a) out of the Statement of Claim.

(2) Leave to appeal otherwise refused.

(3) Costs to be costs in the appeal.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

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.

Medium Neutral Citation:	Toben v Milne [2014] NSWCA 49
Hearing dates:	10 March 2014
Decision date:	10 March 2014
Before:	Macfarlan JA at [1]; Emmett JA at [9]
Decision:	(1) Leave to appeal granted in respect of McCallum J's decision to strike imputation (a) out of the Statement of Claim. (2) Leave to appeal otherwise refused. (3) Costs to be costs in the appeal. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
Catchwords:	PRACTICE AND PROCEDURE - defamation proceedings - misleading and deceptive conduct claim sought to be added to statement of claim - leave to appeal refused except in relation to the striking out of one alleged imputation
Legislation Cited:	Australian Consumer Law (NSW), s 18
Cases Cited:	In re the Will of F B Gilbert (1946) 46 SR (NSW) 318
Category:	Procedural and other rulings
Parties:	Dr Fredrick Toben (Applicant) Senator Christine Milne (Respondent)
Representation:	Counsel: C A Evatt/R Rasmussen (Applicant) R Potter/L Maher (Respondent) Solicitors: Carters Law Firm (Applicant) FitzGerald and Browne Lawyers (Tasmania) (Respondent)
File Number(s):	CA 2013/334740
Decision under appeal	Jurisdiction: 9111 Citation: Toben v Mathieson; Toben v Nationwide News Pty Limited [2013] NSWSC 1530 Date of Decision: 2013-10-18 00:00:00 Before: McCallum J File Number(s): SC 2013/200128; 2013/200157