Whitehall v Oxborough - [2020] NSWDC 781

District Court

New South Wales

Medium Neutral Citation: Whitehall v Oxborough [2020] NSWDC 781
Hearing dates: 3 December 2020
Date of orders: 15 December 2020
Decision date: 18 December 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Grant leave to file the amended Defence, save for the defences of justification and contextual truth at paragraphs 15, 16 and 17, which I struck out with leave to replead by 17 December 2020.
(2) Reserve the issues of costs.

Catchwords:
TORT – defamation

Legislation Cited:
Defamation Act 2005

Cases Cited:
Chau v The Australian Broadcasting Corporation [2019] FCA 1856
Fogarty v Nationwide News Pty Ltd [2013] WASC 477
Gobban v WA Newspapers [1968] WAR 113
Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472
McCauley v John Fairfax (1933) SR (NSW) 339
Penton v Calwell (1945) 70 CLR 219
Peters v Bradlaugh (1884) 4 TLR 467
Saraceni v Mentha [2013] WASC 95

Category: Procedural and other rulings
Parties: Plaintiff: Mr Nathaniel Whitehall
Defendant: Mr Terry Oxborough
Representation:
Counsel:
Plaintiff: Mr N G Olson
Defendant: Mr B Goldsmith (Solicitor)
Solicitors:
Plaintiff: Mr Whitehall (Self-represented)
Defendant: Mr B Goldsmith, Goldsmith Lawyers

File Number(s): 2020/121692

Judgment

Introduction

On 3 December 2020 I struck out the defences of justification and contextual truth set out at paragraphs 15,16 and 17 of the defence, with leave to replead. These are my reasons for making those orders.

The pleading the subject of challenge

The imputations pleaded as arising from the first matter complained of (which are not in the usual order as they have been the subject of amendment) are as follows:

"(a) The plaintiff, a professional airline pilot, is a danger to aviation safety because he is mentally unstable.
(b) The plaintiff is a bankrupt.
(c) The plaintiff a professional airline pilot, is a danger to aviation safety because of his financial and domestic problems.
…
(f)   The plaintiff is an irresponsible person, in that he engages trade persons and does not pay them.
(g)   The plaintiff is so abusive towards his partner that their arguments are often overheard by the neighbours.
…
(i)   The plaintiff, a professional airline pilot, is so mentally unstable that he is liable to commit suicide by deliberately crashing an aeroplane full of passengers and crew."

The plea of justification is made only as to imputation (g). The particulars provided are as follows:

“The defendant cannot now recall the particulars of the occasions when the plaintiff was so abusive to his partner, Tania, that their arguments were often overheard by the neighbours, nor can he recall which particular neighbours overheard each argument in which the plaintiff was abusive. The defendant recalls that the occasions occurred regularly and the plaintiff was frequently heard shouting and yelling, including shouting and yelling abusive language.”

A plea of contextual justification pursuant to s 26 of the Defamation Act 2005 (NSW) is brought. The following…

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 Whitehall v Oxborough

Details

AGLC: Whitehall v Oxborough [2020] NSWDC 781
Case: [2020] NSWDC 781
Decision Date: 18 December 2020

CaseChat Overview and Summary

The case of Whitehall v Oxborough involved a dispute between the plaintiff, Whitehall, and the defendant, Oxborough, concerning an alleged defamation. The matter was heard in a relevant Australian court. Whitehall alleged that Oxborough made defamatory statements about them, which caused harm to their reputation and standing in the community. Oxborough, on the other hand, contested the allegations and sought to defend the claims through various defences.

The primary legal issue before the court was whether Oxborough's statements were indeed defamatory, and if so, whether the defences raised by Oxborough were valid. The court needed to determine if the alleged defamatory statements were made by Oxborough to a third party, and whether those statements had the potential to lower Whitehall's reputation in the eyes of right-thinking members of society. Additionally, the court had to consider the admissibility and relevance of the defences of justification and contextual truth, which Oxborough sought to rely upon.

In its reasoning, the court allowed Oxborough to file an amended defence, with the exception of the defences of justification and contextual truth, which were struck out. The court provided Oxborough with leave to replead these defences by a specified date, indicating that further evidence or arguments might be necessary to substantiate these defences. The court also reserved the issue of costs, indicating that a decision on this matter would be made at a later stage in the proceedings.

The final orders of the court included granting leave for Oxborough to file an amended defence, with the exception of the struck-out defences, and reserving the decision on costs for a later date. This decision highlights the court's focus on ensuring that all relevant evidence and arguments are presented in a clear and organised manner, while also maintaining a cautious approach to the admissibility of certain defences.

Orders

Orders of the court

(1) Grant leave to file the amended Defence, save for the defences of justification and contextual truth at paragraphs 15, 16 and 17, which I struck out with leave to replead by 17 December 2020.

(2) Reserve the issues of 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.

Medium Neutral Citation:	Whitehall v Oxborough [2020] NSWDC 781
Hearing dates:	3 December 2020
Date of orders:	15 December 2020
Decision date:	18 December 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Grant leave to file the amended Defence, save for the defences of justification and contextual truth at paragraphs 15, 16 and 17, which I struck out with leave to replead by 17 December 2020. (2) Reserve the issues of costs.
Catchwords:	TORT – defamation
Legislation Cited:	Defamation Act 2005
Cases Cited:	Chau v The Australian Broadcasting Corporation [2019] FCA 1856 Fogarty v Nationwide News Pty Ltd [2013] WASC 477 Gobban v WA Newspapers [1968] WAR 113 Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 MacDonald v Australian Broadcasting Corporation [2014] NSWSC 1472 McCauley v John Fairfax (1933) SR (NSW) 339 Penton v Calwell (1945) 70 CLR 219 Peters v Bradlaugh (1884) 4 TLR 467 Saraceni v Mentha [2013] WASC 95
Category:	Procedural and other rulings
Parties:	Plaintiff: Mr Nathaniel Whitehall Defendant: Mr Terry Oxborough
Representation:	Counsel: Plaintiff: Mr N G Olson Defendant: Mr B Goldsmith (Solicitor) Solicitors: Plaintiff: Mr Whitehall (Self-represented) Defendant: Mr B Goldsmith, Goldsmith Lawyers
File Number(s):	2020/121692