Whyte v TCN Channel Nine Pty Ltd
[2006] FMCA 841
•2 June 2006
FEDERAL MAGISTRATES COURT OF AUSTRALIA
| WHYTE & ANOR v TCN CHANNEL NINE PTY LTD | [2006] FMCA 841 |
| TRADE PRACTICES – Misleading conduct by TV interviewer – claim for personal injuries resulting – application for summary dismissal – caution required – court not satisfied that no reasonable prospects for causes of action in assault and trespass – full pleadings desirable – directions adopting Federal Court Rules and NSW procedures in personal injury claims. |
Federal Court Rules (Cth), O.11, 12
Federal Magistrates Act 1999 (Cth), ss.17A, 18, 50
Federal Magistrates Court Rules 2001 (Cth), rr.10.01(3)(c), 13.10, 13.10(a), Pt.27
Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 (Cth)
Migration Litigation Reform Act 2005 (Cth)
Trade Practices Act 1974 (Cth), ss.52, 86(1)A
Uniform Civil Procedure Rules 2005 (NSW), rr.15.12, 15.14, 15.15, 31.19, Pt.23, Pt.31
Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Rana v University of South Australia (2004) 136 FCR 344
Rixon v Star City Pty Ltd (2001) 53 NSWLR 98
TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333
| First Applicant: | RODNEY THOMAS WHYTE |
| Second Applicant: | DAVID JOHN VOLKE |
| Respondent: | TCN CHANNEL NINE PTY LTD |
| File Number: | SYG3349 of 2005 |
| Judgment of: | Smith FM |
| Hearing date: | 2 June 2006 |
| Delivered at: | Sydney |
| Delivered on: | 2 June 2006 |
REPRESENTATION
| Counsel for the Applicants: | Mr C A Evatt |
| Solicitors for the Applicants: | Friend & Co. Laywers |
| Counsel for the Respondent: | Mr A T S Dawson |
| Solicitors for the Respondent: | Deacons Lawyers |
ORDERS
The respondent’s interlocutory application filed on 14 March 2006 is dismissed.
The parties’ costs in relation to that application and today’s listing are their costs in the proceeding.
The issues for trial are to be determined by reference to pleadings and particulars complying with Federal Court Rules O.11 and O.12, which are to be filed and served according to the following timetable:
(i)A statement of claim is to be filed in relation to each applicant by 30 June 2006.
(ii)Particulars in relation to personal injuries in accordance with the Uniform Civil Procedure Rules 2005 (NSW) r.15.12 are to be provided by 30 June 2006, and thereafter in accordance with rr.15.14 and 15.15.
(iii)Any request for further particulars is to be made by 14 July 2006.
(iv)Such request is to be responded to by 28 July 2006.
(v)A defence is to be filed in relation to each applicant by 25 August 2006.
(vi)Any reply is to be filed by 8 September 2006.
All evidence in chief in the proceeding shall be by way of affidavits.
The applicants must file and serve all affidavits relied upon by 6 October 2006.
The respondent must file and serve all affidavits it intends to rely upon on by 3 November 2006.
The applicants must file and serve on the respondents any affidavits in reply by 17 November 2006.
The provisions of Uniform Civil Procedure Rules 2005 (NSW) Part 23 in relation to medical examinations, and Part 31 in relation to service and admissibility of medical and hospital reports (including r.31.19), are to be applied in the proceeding.
The matter is referred to a registrar for mediation pursuant to Part 27 of the Federal Magistrates Court Rules 2001 (Cth). Mediation must be concluded by 8 December 2006.
Any party may request that the proceeding be listed for further directions or for the hearing of an interlocutory application on a date allowing 3 clear days’ notice to the other parties. The appointment shall be obtained from the Associate on 9377 5528.
The proceeding is listed for further directions on 14 December 2006 at 9.30 am.
| FEDERAL MAGISTRATES COURT OF AUSTRALIA AT SYDNEY |
SYG3349 of 2005
| RODNEY THOMAS WHYTE |
First Applicant
| DAVID JOHN VOLKE |
Second Applicant
And
| TCN CHANNEL NINE PTY LTD |
Respondent
REASONS FOR JUDGMENT
(revised from transcript)
The substantive matter in this proceeding is an application filed on 16 November 2005 by two applicants against a company responsible for the actions of the staff of a television show. The application used the Court’s general form of application, indicating that it was brought under the “Trade Practices Act 1974” and “Other”. An attached statement said:
1.Orders sought
(a)Damages including aggravated and punitive damages.
(b)Interest.
(c)Costs.
(d)Declarations that in trade or commerce the Respondent, its servants and agents engaged in conduct which was misleading or deceptive or which was likely to mislead or deceive contrary to the provisions of Section 52 of the Trade Practices Act.
(e)A declaration that the Respondent breached its contract with Applicants.
There then appeared a brief narration of facts, in which it was alleged that the persons responsible for producing and televising the television program had tricked the two applicants into giving an interview for the purpose of promoting a book written by one of them, but that, when they conducted the interview at the home of the two applicants, the interview was conducted in a confrontational manner and was directed at a different topic, being one in which they were shown in an unfavourable light. The narration of facts claimed that “by reasons whereof the Applicants were traumatized and suffered serious psychological and psychiatric injuries and disabilities including suicide attempts”. Attached to the application were two medical reports containing opinions which related psychiatric disabilities suffered by both applicants, or the aggravation thereof, to the circumstances of the television interview. The application was not accompanied by affidavits.
At the first court date I discussed with the parties’ representatives the obvious difficulties in relation to the application as brought, and the need for some particularisation of the claims made including those concerning personal injuries. I gave directions for the applicants to file and serve points of claim and further particulars, and for the filing and service of points of defence. I listed the matter for further directions on 31 March 2006.
Prior to that listing, the respondent filed an interlocutory application seeking the summary dismissal of the application, or parts of it. This was supported by an affidavit explaining its attempts to obtain elucidation of the claims made by the applicants. The affidavit referred to a document headed “Points of Claim”, filed by the applicants, and correspondence which had passed between the solicitors for the parties which sought to clarify the causes of action which were referred to in that document. The interlocutory application was set down for hearing today.
The applicants’ Points of Claim document has seven paragraphs giving a summary narration of the events which had previously been asserted, followed by the single contention that “as a result of Nine’s conduct, Whyte and Volke have suffered psychiatric and psychological injury”. Some heads of disability were then referred to. The document concluded:
CAUSE OF ACTION
9.The Applicants claim damages:‑
(a)Under S.53, Trade Practices Act (Cth) and S.43 Fair Trading Act (NSW), for misleading or deceptive conduct, or conduct likely to mislead or deceive, in trade or commerce, by Nine (paragraphs 2‑7);
(b)For assault by Nine’s agents, Paterson and the film crew, on 8th July (paragraph 7);
(c)For trespass to the home [address] occupied by Whyte and Volke on 8th July (paragraph 7);
(d)For breach of contract between them and Nine, made by discussion between Byrne and Whyte between 20 June and 8 July (paragraphs 2‑4).
Plainly, the Points of Claim did not attempt the normal content of pleaded statements of claim in relation to the causes of action separately claimed by each of the applicants. It did not plead the material facts relevant to each element of the causes of action referred to in paragraph 9, nor give particulars relevant to each of those elements.
The correspondence shows an attempt to identify the material facts and particulars of the separate causes of action, but in the course of today’s proceeding it has become apparent that the Points of Claim document does not constitute a sufficient pleading of facts and particulars meeting the purposes of the usual pleading rules followed in court proceedings. The respondent’s present interlocutory application has achieved, at least, a demonstration of this inadequacy.
Necessarily, the Points of Defence document filed by the respondent also reveals itself to be no proper substitute for a pleaded defence in answer to a properly pleaded statement of claim.
The Federal Magistrates Act 1999 (Cth) envisages that matters brought in the Court’s general federal law jurisdiction will not necessarily require preparation by way of an exchange of pleadings (see s.50). The rules similarly do not require pleadings. The Court does have power where appropriate to direct that a trial shall proceed by reference to issues defined by pleadings (c.f. Rule 10.01(3)(c)). It is, however, common for such a direction only to be given where it appears that it is necessary to isolate the issue in contention, so as to assist the efficiency of the hearing and the requirements of procedural fairness.
If a claim such as the present had been based purely on a claim for damages by reason of a breach of s.52 of the Trade Practices Act 1974 (Cth), I might have decided that the applicants should not be required to fully plead their claims, and that these could be sufficiently identified to the respondent by way of evidence on affidavit exchanged prior to the hearing, with the assistance of legal submissions as to the effect of that evidence.
However, it has become apparent from the applicants’ Points of Claim document that the present matter has a complexity in relation to the causes of action relied upon, the separate claims made by each of the applicants, and the nature of the damages claimed, as to make it appropriate, in my opinion, for directions now to be given for a full pleading of the matter by reference to the requirements of the Federal Court Rules.
I note that the medical evidence which has been filed does not clearly indicate that the claims made by the applicants are insubstantial, and also that their originating application sought damages “including aggravated and punitive damages”. I therefore consider it is appropriate for the applicants to be put to the added expense of properly pleading their claims. The parties are represented on both sides by competent legal representatives, so that there is a real prospect that a process of pleading will be conducted efficiently to achieve its purposes.
My exchanges with the parties’ representatives in the course of today’s proceedings have also identified the desirability of the matter proceeding to trial on evidence‑in‑chief foreshadowed by way of an exchange of affidavits. This will produce openness as to the parties’ cases, and assist a process of mediation which I propose to direct before setting the matter down for trial, if that is necessary. I also propose to make specific directions adopting the provisions of the Uniform Civil Procedure Rules 2005 (NSW) which address the obtaining and use of medical evidence in personal injuries matters.
My above observations explain the procedural directions which I propose to make after giving this judgment.
I must now address the respondent’s interlocutory application seeking summary dismissal of the application, and explain why I have concluded that it should be refused and that the applicants’ claims should be permitted to proceed to trial according to the procedure I have foreshadowed above.
The orders sought by the interlocutory application are:
Orders sought:
1.That pursuant to FMC Rule 13.10(a) and/or 17.05 that the claim for relief in Proceedings SYG 3349 of 2005 in the Federal Magistrates Court of Australia based on section 52 of the Trade Practices Act (“the Section 52 claim”) be dismissed on the basis that the Application and Points of Claim disclose no reasonable cause of action;
2.Further and/or in the Alternative to Paragraph 1, that pursuant to FMC Rule 13.10 and/or 17.05 that Proceedings SYG 3349 of 2005 in the Federal Magistrates Court of Australia be dismissed on the basis that in the absence of the Section 52 claim the Court lacks jurisdiction;
3Further and in the Alternative to Paragraphs 1 and 2, that pursuant to FMC Rule 13.10(a), (b) and (c) and/or 17.05 that the claim for relief in Proceedings SYG 3349 of 2005 in the Federal Magistrates Court of Australia based on common law assault be dismissed on the basis that the Application and Points of Claim disclose no reasonable cause of action and/or that the claim for relief is frivolous and vexatious and/or an abuse of process of the Court;
4.Further and in the Alternative to Paragraphs 1, 2 and 3, that pursuant to FMC Rule 13.10(a) and/or 17.05 that the claim for relief in Proceedings SYG 3349 of 2005 in the Federal Magistrates Court of Australia based on breach of contract be dismissed on the basis that the Application and Points of Claim disclose no reasonable cause of action;
5.Such further or other orders as the court sees fit.
At the hearing today the respondent’s attention was drawn to an amendment to r.13.10(a) of the Federal Magistrates Court Rules 2001 (Cth), which has substituted for the power to dismiss on the ground of no reasonable cause of action, the ground of summary dismissal that:
13.10(a)the party prosecuting the proceeding or claim for relief has no reasonable prospect of successfully prosecuting the proceeding or claim;
The amendment to the rules came into effect on 1 December 2005, concurrently with the provisions of s.17A of the Federal Magistrates Act 1999 (Cth) and other similar provisions in relation to the Federal Court and High Court, which were introduced by the Migration Litigation Reform Act 2005 (Cth). It is applicable to all proceedings in this Court, and not just migration cases. Counsel for the first respondent sought, and was given, leave to amend the interlocutory application so as to adopt the test in r.13.10(a) as amended, and argument proceeded on the assumption that an amended application had been filed.
In response to the interlocutory application, the applicants filed sworn statements by each of them, narrating the events leading up to and at the interview, and attaching some documents which preceded it. Their statements contain much evidence in a form which would not be admissible on a trial, but I received them for the purposes of the interlocutory proceeding as, in effect, foreshadowing the evidence which they would wish to lead at a trial. Several obscurities in their accounts emerged, and I considered that it was appropriate when assessing the prospects of the causes of action which they have sought to rely on, to make all assumptions in their favour which could be reasonably implied in their narrations.
The principle that this Court should be extremely cautious before summarily dismissing an application has been emphasised in Rana v University of South Australia (2004) 136 FCR 344. In that judgment, Lander J referred to the provisions of the Federal Magistrates Act and Federal Magistrates Court Rules establishing the Court as a forum for informal and streamlined procedures, and the reasons why the Court should be slow to preclude an applicant from leading evidence at a hearing which might establish causes of action asserted in an application.
His Honour addressed r.13.10 in the form prior to the 1 December 2005 amendment, but in my opinion what he said has continuing relevance. After referring to the well‑known passage from General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 per Barwick CJ at 129, his Honour said:
[73]The need for caution must be even more obvious in the Federal Magistrates Court when considering an application to summarily dismiss a claim for failing to disclose a reasonable cause of action. That is for the reasons already mentioned. There are no pleadings. There is, therefore, no concise document from which one can easily discern the existence or otherwise of a cause of action. The applicant is not obliged to file all affidavit evidence with the application, but only an affidavit which need not be the applicant’s. It could not have been intended that an application under r 13.10 would give rise to an obligation upon the applicant to produce all of the applicant’s evidence in order to determine whether the applicant could disclose a reasonable cause of action. If that were the obligation, the hearing of the application would almost become the trial.
[74]The Court, on hearing an application under FMC Rules 4.04(1)(c) and 13.10, could not be expected to weigh the evidence of the parties to determine whether the applicant had disclosed a reasonable cause of action. Again, that would amount to a trial of the action. What the applicant must disclose is a reasonable cause of action -- not that on the evidence presently available the applicant will succeed on that cause of action.
[75]In my view, because the FMC Rules do not require pleadings; the parties are not obliged to tender all their evidence when the application and response is filed; there are few, if any, interlocutory processes available; and the Federal Magistrates Court is a low cost court, the Federal Magistrates Court should be very cautious about summarily dismissing an applicant’s proceeding. That course should only be adopted when it is clear, beyond any doubt, that the applicant has not, and cannot, articulate in writing a reasonable cause of action. As I have already said, the philosophy of the Federal Magistrates Court is to provide inexpensive justice and a streamlined dispute resolution process. Litigants will often be self‑represented and the documents they rely on as founding their claim will no doubt often be imprecisely articulated. In those circumstances, there is even more reason for the Federal Magistrates Court to be cautious before summarily dismissing an applicant’s claim.
In my opinion, where his Honour refers to “what the applicant must disclose is a reasonable cause of action” can be applied in the light of the new rules as a reference to the requirement that the Court should consider whether the applicant can point to reasonable prospects. The current rule allowing summary dismissal requires the Court to achieve a state of positive satisfaction that the claim “has no reasonable prospect of success”, and if left in doubt as to this, in my opinion, the Court should allow the matter to proceed to trial.
The state of the matter which I have described above, including the absence of full pleadings up to this date, provides further reasons for me to be cautious in making orders which would preclude the applicants from addressing the elements of the causes of action to which they have now referred.
I would also observe that the general circumstances set out in the sworn statements of the two applicants demonstrate a need for the Court at this stage in the proceedings to be very slow to make any observations upon the evidence of the applicants, which might suggest that the Court has started to form conclusions as to the truth or effect of that evidence. I note at this stage that the respondent has not revealed whether it proposes to go into evidence, and it is impossible for me to identify where the real factual controversies are likely to arise in relation to the narrations of the two applicants.
In the light of the above general observations as to my approach to the respondent’s interlocutory application, I shall deal with each of its paragraphs.
Paragraphs 1 and 2 seek a ruling on whether the application reveals a claim within this Court’s jurisdiction under s.86(1)A of the Trade Practices Act in relation to “any matter arising under Division 1 or 1A of Part V”. (I note this jurisdiction has recently been extended by the Jurisdiction of the Federal Magistrates Court Legislation Amendment Act 2006 (Cth) to other parts of the Trade Practices Act, but I need not address the significance of those amendments).
I accept that, if the invocation of that jurisdiction was merely a colourable attempt to bring proceedings in this Court on causes of action not within its statutory jurisdictions, then it would be appropriate to dismiss the whole proceeding. However, if a reasonable basis for invoking the trade practices jurisdiction were shown, then counsel for the respondent did not contest that the Court would acquire associated jurisdiction to deal with claims in common law tort and contract under its jurisdiction over “associated matters” (see s.18 of the Federal Magistrates Act).
Ultimately, counsel for the respondent did not press a contention that no reasonable prospect of success in a claim for damages by reference to s.52 of the Trade Practices Act was shown in the material presented by the applicants. His criticisms of the Points of Claim focused on the current difficulty for the respondent in identifying the separate elements of such a cause of action in relation to each of the applicants. As I have indicated above, I have accepted much of his criticism, and it has led me to conclude that the trade practices claims of each of the applicants should be properly identified by way of pleading.
I note that counsel for the respondent did not contend that the circumstances of the interview claimed in the applicants’ statements were incapable of being characterised as conduct engaged “in trade or commerce”. He did not argue a ground for summary dismissal by reference to the test established in Concrete Constructions (N.S.W.) Pty Ltd v Nelson (1990) 169 CLR 594. This is not to say that an issue as to this might not arise and be properly argued at trial. However, it would seem that the respondent is content for this to be left to trial, and not to be dealt with by way of an interlocutory application or preliminary hearing. I consider that this was appropriately conceded.
In relation to the prospects for a claim based on breach of contract, counsel for the respondent, as I understood him, ultimately accepted that there may be triable issues as to the contractual intent of the parties arising from their exchanges prior to the applicants’ agreeing to give an interview. As I understood him, he therefore did not press paragraph 4 of the interlocutory application.
While abandoning paragraphs 1, 2 and 4 of the interlocutory application, counsel for the respondent did press for orders which would preclude the applicants from pursuing claims based on causes of action in assault or trespass.
In relation to the allegations of assault in the course of the interview, counsel for the respondent drew my attention to paragraphs of the sworn statements filed by each of the applicants which might appear to be specifically relevant to those contentions, in particular to paragraphs 9 and 10 of the statement of Mr Volke and paragraphs 19 to 21, 30 to 31 and 36 of the statement of Mr Whyte. I do not consider it necessary for me to recite those paragraphs in this judgment nor, for the reason indicated above, do I think it appropriate for me to engage in a close analysis of the effect of that evidence, since I may become the judge responsible for deciding the facts at a final hearing.
I have considered the written and oral submissions made by counsel for the respondent in relation to this evidence. In particular, he addressed the element in the tort of assault which is referred to by Sheller JA in Rixon v Star City Pty Ltd (2001) 53 NSWLR 98:
[58]Proof of assault requires proof of an intention to create in another person an apprehension of imminent harmful or offensive contact. (citation omitted)
He contended that the paragraphs in the applicants’ statements could not support a finding of the existence of such an intent in the interviewer or camera‑persons or other agents of the respondent.
I do not accept that submission. In my opinion the statements leave open a prospect that their evidence presented on trial might establish such an intent. I am not satisfied that the respondent has established that the applicants have no reasonable prospect of success on this cause of action if the matter came to trial.
In relation to a cause of action in trespass, although an order specifically directed at this claim is not sought in the application for summary dismissal, I shall address counsel’s arguments seeking an order precluding it being pursued. Counsel for the respondent referred to the exchange of correspondence between solicitors for the parties, in which the solicitors for the respondent sought to elucidate what they said was “a new cause of action for trespass”. In a letter dated 14 February 2006, they said:
New Cause of Action for Trespass
We note that the Points of Claim includes a new cause of action for “trespass to the home [address] occupied by Whyte and Volke on 8 July”.
As it stands paragraph 7 of the Points of Claim sheds little light on this cause of action. In particular it is not clear whether the respondent simply entered without permission, or whether it entered for a purpose other than that permitted by the applicant Mr Whyte, or whether it became a trespasser after refusing requests to leave the premises.
Please provide the following particulars so that the respondent is in a position to consider whether this cause of action also should be the subject of a strike out claim:
i)In respect of paragraph 7(b) where is it alleged Ms Patterson and Mr Volke were when this conversation occurred? In respect of paragraph (d) where is it alleged the camera crew was when they began to film Volke?
ii)When is it alleged the trespass commenced? In particular is it said to have commenced during the events described in Paragraph 7(a), 7(d) or 7(c) of the Points of Claim? If there is alleged to be a series of distinct trespasses please specify the facts, matters and circumstances relied upon in respect of each trespass;
iii)In respect of Paragraph 7(e) (and the alleged entry without permission) is it alleged that Whyte and Volke were refused permission to enter the home? If so please specify who refused permission, when this was done and the substance of the words spoken. Or in the alternative, is it the applicant’s case that employees of the respondent entered the home for a purpose other than the limited purpose pleaded in paragraphs 2‑4?
iv)In respect of Paragraph 7(e) (and the alleged refusal of Patterson and the crew to leave) please specify the number of times Whyte and Volke asked the employees of the respondent to leave, and the intervals at which this is said to have occurred over the hour they were within the house. Is it for instance alleged that before each question and answer the applicant’s requested the respondents to leave?
In a letter dated 28 February 2006, the solicitors for the applicants responded:
Trespass
As requested the following particulars are provided:–
(i)In the entry area of the house. This comprises a small alcove at the front door. The camera crew were in the lounge room.
(ii)‑(iv)The trespass commenced upon the entry to the house by the camera crew and journalists. They entered the premises under false pretences, that is to say for purposes other than permitted, promises and agreed to.
The Respondent’s employees entered the home for the purpose of asking questions in relation to Mr Volke’s wife and children and not for the purposes pleaded in paragraphs (ii)‑(iv). Patterson and the crew were twice asked to leave by Mr Volke who said to them “get out of our home”. After the crew left the lounge room and went out of the house, Patterson requested to interview Mr Whyte.
Counsel for the respondent contended that the statements by the applicants did not raise any prospect of their establishing a cause of action in trespass by reason of either the movement of the TV personnel “into the area of the house from its surrounding yard”, nor raise any prospect of success on the additional contention that trespass occurred when the interviewer and crew did not leave immediately when requested. He also cited an observation by Spigelman CJ in TCN Channel Nine Pty Ltd v Anning (2002) 54 NSWLR 333 at [114], but the present relevance and authority of this is obscure to me.
In my opinion, his contentions rested upon a too narrow reading of the basis for trespass which was suggested by the applicants’ solicitor.
I also consider that the applicants’ statements might appear to raise a more general allegation of trespass by reason of the attendance at the applicants’ property by the television crew with a purpose inconsistent to the agreement which they had previously obtained in relation to an interview.
In any event, I have considered the parts of the sworn statements to which I was taken, being the statement of Mr Volke at paragraph 16 and of Mr Whyte at paragraphs 29 to 30, and do not accept that they do not raise triable issues as to whether the television crew entered the property, or parts of it, or remained there, at times inconsistent with the terms of their licence. I do not think it appropriate for me to enter into a close discussion of the evidence in relation to these conclusions. I consider that the applicants should be given opportunity to properly plead their trespass claims and present them at a trial.
For the above reasons, based both on the withdrawal of some parts of the interlocutory application, and my rejection of the submissions made in support of the remaining parts, I consider the interlocutory application should be dismissed.
However, because the arguments today have revealed a failure to achieve the aims of the previous directions for points of claim and points of defence, and have confirmed the need for full pleading and particulars by reference to the rules of the Federal Court and the personal injury procedures under the NSW Uniform Civil Procedure, I consider that the costs of today should be treated as costs incurred for a full directions hearing. I shall therefore order them to be costs in the cause of each party.
I certify that the preceding forty‑two (42) paragraphs are a true copy of the reasons for judgment of Smith FM
Associate: Lilian Khaw
Date: 21 June 2006
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