White v Sparks - [2015] NSWDC 53

District Court

New South Wales

Medium Neutral Citation: White v Sparks [2015] NSWDC 53
Hearing dates: 23 April 2015
Date of orders: 23 April 2015
Decision date: 23 April 2015
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to s 61(3) Civil Procedure Act 2005 (NSW) and r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.
(2) No order as to costs.

Catchwords: TORT – defamation – plaintiff fails to serve statement of claim and to show cause why proceedings should not be dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), s 61(3)
Uniform Civil Procedure Rules 2005 (NSW), rr r 6.2(4)(b)(i), 12.7(1) and 14.30
Cases Cited: Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61
Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
National Parks and Wildife Service v Pierson (2002) 55 NSWLR 315
PW v MS [2014] WASC 202
Re Application by Bar-Mordecai [2014] NSWSC 1202
Slipetz v Trudeau [2013] MBQB 111
Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80
Category: Principal judgment
Parties: Plaintiff: Jasmin White
Defendant: Laura Sparks
Representation: Counsel:
Plaintiff: Mr K Smark SC

File Number(s): 2014/296018
Publication restriction: None

Judgment

The plaintiff commenced these proceedings for defamation by statement of claim filed on 9 October 2014. The sole defendant is a journalist employed by Channel Seven’s Today Tonight programme.
There are substantial failures to comply with r 14.30 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) in the statement of claim. The dates and circumstances of each of the matters complained of are not identified with clarity; the texts of the matters complained of have not been attached to the statement of claim, no imputations are pleaded, and the number of publications sued upon and the period over which they were published are difficult to estimate. Doing the best I can, these publications appear to fall into four categories:

Between May and June 2010, the defendant contacted four persons employed by the plaintiff at the time in her dental registry for the purpose of interviews.

On 10 May and 15 June 2010, Channel Seven’s Today Tonight television show allegations that the plaintiff was “a fraud” and “making millions of dollars of false/fraudulent claims into the Medicare and other health care systems” (statement of claim, paragraph 3). The defendant participated in that programme in some capacity.

These broadcasts were available on YouTube until the end of August 2010, on Media Monitors until September 2010 and additionally sent in a web link emailed to the Australian Dental Association branches in September 2010 (although by whom is unclear).

There was a further broadcast on Tuesday 8 October 2013 which, according to the statement of claim, was made after the plaintiff commenced defamation proceedings in this court against two of her former employees for their statements to Ms Sparks, and Ms…

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 White v Sparks

Details

AGLC: White v Sparks [2015] NSWDC 53
Case: [2015] NSWDC 53
Decision Date: 23 April 2015

CaseChat Overview and Summary

The plaintiff, Mr White, brought a defamation case against the defendant, Mr Sparks, in the Supreme Court of New South Wales. The plaintiff alleged that Mr Sparks made defamatory statements about him in a public forum, which resulted in damage to his reputation. The dispute centred around whether the statements made by Mr Sparks were defamatory and if they were, whether the plaintiff had suffered any damage as a result.

The court had to decide whether the plaintiff's failure to serve a statement of claim and to show cause why the proceedings should not be dismissed amounted to a valid defence for the defendant. The court also had to determine if the plaintiff could still proceed with the case despite the failure to serve the statement of claim within the required time frame.

The court found that the plaintiff had failed to serve a statement of claim within the required time frame and had not shown any cause why the proceedings should not be dismissed. The court held that the plaintiff's failure to serve a statement of claim and to show cause why the proceedings should not be dismissed amounted to a valid defence for the defendant. The court dismissed the proceedings pursuant to section 61(3) of the Civil Procedure Act 2005 (NSW) and rule 12.7(1) of the Uniform Civil Procedure Rules 2005 (NSW). The court did not make any order as to costs.

Orders

Orders of the court

(1) Pursuant to s 61(3) Civil Procedure Act 2005 (NSW) and r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed.

(2) No order 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

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	White v Sparks [2015] NSWDC 53
Hearing dates:	23 April 2015
Date of orders:	23 April 2015
Decision date:	23 April 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to s 61(3) Civil Procedure Act 2005 (NSW) and r 12.7(1) Uniform Civil Procedure Rules 2005 (NSW), the proceedings are dismissed. (2) No order as to costs.
Catchwords:	TORT – defamation – plaintiff fails to serve statement of claim and to show cause why proceedings should not be dismissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 61(3) Uniform Civil Procedure Rules 2005 (NSW), rr r 6.2(4)(b)(i), 12.7(1) and 14.30
Cases Cited:	Baffico v YMCA of Great Lakes Inc [2014] NSWCA 61 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 National Parks and Wildife Service v Pierson (2002) 55 NSWLR 315 PW v MS [2014] WASC 202 Re Application by Bar-Mordecai [2014] NSWSC 1202 Slipetz v Trudeau [2013] MBQB 111 Weston in Capacity as Special Purpose Liquidator of One.Tel Ltd (in liq) v Publishing & Broadcasting Ltd (2012) 88 ACSR 80
Category:	Principal judgment
Parties:	Plaintiff: Jasmin White Defendant: Laura Sparks
Representation:	Counsel: Plaintiff: Mr K Smark SC
File Number(s):	2014/296018
Publication restriction:	None