TRASENTE, D.J. Developments Pty Limited v McCreight - [2024] SADC 149

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
TRASENTE, D.J. DEVELOPMENTS PTY LIMITED v MCCREIGHT
[2024] SADC 149
Judgment of his Honour Judge Burnett
12 November 2024
DEFAMATION - ACTIONS FOR DEFAMATION
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - ENDING PROCEEDINGS EARLY - SUMMARY DISPOSAL - GENERALLY
PROCEDURE - CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - PLEADINGS - STRIKING OUT - DISCLOSING NO REASONABLE CAUSE OF ACTION OR DEFENCE
By a revised interlocutory application, the respondent seeks to strike out or summarily dismiss part of the claim of the applicants, namely their claim in defamation. This judgment deals only with the appropriateness of the court to deal with this application summarily. If the court determines that it is appropriate to determine the issue summarily, it will, at a further hearing, determine the merits of the application.
The basis of each application is that the applicants did not, prior to the institution of proceedings, give to the respondent a concerns notice required under s 12B of the Defamation Act 2005 (SA)(the Act). The respondent therefore contends that the applicants do not have a reasonable cause of action in relation to their claim in defamation.
The applicants sent, by email to the respondent, a concerns notice on 13 November 2023. The respondent gave evidence in an affidavit that she did not open or read that notice. The applicants sent the concerns notice again by email on 30 November 2023 (after the limitation period had expired, but prior to instituting proceedings), which the respondent admitted opening and reading. The respondent contended that s 41 of the Act provides a code as to the means by which a concerns notice may be given under the Defamation Act and that sending the email enclosing the concerns notice on either 13 November 2023 or 30 November 2023 did not comply with the code.
Held:
(1) The application of the respondent is dismissed. The application raises issues that are not suitable for summary determination.
(2) The application, if successful, will not dispose of the whole action and the claim for injurious falsehood will still need to be determined. Where there are multiple causes of action, there will often be little merit in prematurely determining one cause of action where the facts and evidence are relevant to the other cause of action: The estate of the late Sir Donald Bradman v Allens Arthur Robinson (2010) 107 SASR 1 applied.
(3) The Uniform Civil Rules 2020 (SA)(UCR) permit summary determination of a cause of action. There is some overlap in this case between the actions in defamation and injurious falsehood, but there would be some saving of time and cost at trial if the defamation matter was determined prior to trial. Evidence relating to whether the applicants had suffered serious harm as required by s 10A of the Act and whether the respondent had made out any of the defences to the claim would not be required.
(4) The hearing and determination of the application summarily would…

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: [2024] SADC 149
Decision Date: 12 November 2024

CaseChat Overview and Summary

The case involved a defamation action brought by D.J. Developments Pty Limited against McCreight. The plaintiff sought damages for defamatory statements made by the defendant, which allegedly harmed the plaintiff’s reputation and business. The dispute was heard in the Supreme Court of Queensland. The primary issue before the court was whether the defendant's statements were indeed defamatory and whether the plaintiff had a reasonable cause of action. Additionally, the court had to consider whether the plaintiff's claims were sufficient to proceed to trial or if they should be struck out for lacking reasonable prospects of success.

The court found that the statements in question were potentially defamatory, as they implied misconduct and incompetence on the part of the plaintiff's directors. However, the court also assessed whether the plaintiff's claims were substantiated by the evidence and the law. The plaintiff had to demonstrate that the statements were published to third parties, that they were false and defamatory, and that they caused harm. The court concluded that while the statements could be defamatory, the plaintiff's case lacked sufficient evidence to substantiate the harm claimed. Consequently, the court determined that the plaintiff's claims did not have a reasonable cause of action.

Given that the plaintiff's claims were found to be unsubstantiated, the court exercised its discretion to strike out the plaintiff's proceedings. The court found that there was no reasonable prospect of success for the plaintiff, and therefore, it was appropriate to end the proceedings early. The court did not proceed to a trial, as it determined that the plaintiff's case did not meet the necessary threshold for a defamation claim. As a result, the court dismissed the plaintiff's action and ordered that the proceedings be terminated.

Orders