WIN Television NSW Pty Limited v Derek Gough

[2004] ACTCA 27

WIN TELEVISION NSW PTY LIMITED v DEREK GOUGH [2004] ACTCA 27
(5 November 2004)

EX TEMPORE JUDGMENT

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

No. ACTCA 53-2003
No. SC 623 of 2003

Judges:         Higgins CJ, Crispin P, Weinberg J
Court of Appeal of the Australian Capital Territory
Date:            5 November 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 53 - 2003
  )          No. SC 623 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:WIN TELEVISION NSW PTY LIMITED

Appellant

AND:DEREK GOUGH

Respondent

ORDER

Judges:  Higgins CJ, Crispin P, Weinberg J
Date:  5 November 2004
Place:  Canberra

THE COURT ORDERS THAT:

1. the application for leave is dismissed;

1. the appellant pay the respondent’s costs of and incidental to the application for leave to appeal.

IN THE SUPREME COURT OF THE       )          No. ACTCA 53 -2003
  )          No. SC 623 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:WIN TELEVISION NSW PTY LIMITED

Appellant

AND:DEREK GOUGH

Respondent

Judges:  Higgins CJ, Crispin P, Weinberg J
Date:  5 November 2004
Place:  Canberra

REASONS FOR JUDGMENT

HIGGINS CJ:

1. I will state briefly my reasons for dismissing this application.  First of all, I’m not persuaded that at the end of the day before his Honour Justice Gray, his Honour applied an incorrect test.  I don’t think there’s any question of importance that arises in relation to the taking of strike-out applications or applications to try questions of law.  I think that’s an issue which can be addressed in the context of any particular case of course, and it may be better in one case to apply for the trial of a question of law for a ruling on a question of law under O 37 rather than to deal with the matter as one of pleading. 

1. This is simply a question that applies in the context of a particular case.  To give an example, if it were to be contended that whilst a statement made or, in this case, images shown, were capable of giving rise to some sort of defamatory imputation, or might well be, but not those pleaded, then the appropriate course is of course to object to the pleading and to strike out those imputations which are objected to.

1. It may arise in the course of an application to have a ruling of law made that would have the effect, if made, that the action is hopeless.  It may arise that indeed the action is hopeless only on the basis pleaded but not hopeless otherwise, in which case one procedure would revert to the other, so I don’t think there is any question of principle there. 

1. The second is, it is impossible to say from the material presented that there was a sufficient doubt about the ruling his Honour made.  And further, even if his Honour was incorrect in that a viewing of the video in context would lead to a conclusion that no right-minded person could possibly draw the inferences complained of, that is, no reasonable viewer could draw any of the inferences complained of, that is not an issue about which has been shut out by this ruling.  I would dismiss the application.

1. The order of the court is that the application for leave is dismissed.

1. There will be an order that the appellant pay the respondent’s costs of and incidental to the application for leave to appeal. 

I certify that the preceding six (6) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Chief Justice Higgins.

Associate:
Date:     15 December 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 53 -2003
  )          No. SC 623 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:WIN TELEVISION NSW PTY LIMITED

Appellant

AND:DEREK GOUGH

Respondent

Judges:  Higgins CJ, Crispin P, Weinberg J
Date:  5 November 2004
Place:  Canberra

REASONS FOR JUDGMENT

CRISPIN P:

1. I would dismiss the application for three reasons. 

1. First, in my opinion the only real issue of substance raised upon the application is the suggestion that his Honour failed to appreciate that the notice of motion that had been filed seeking orders striking out the claim pursuant to O 23 r 28 and O 29 r 24 had been amended by the Master to include an application pursuant to O 37 r 2 for a binding determination of a legal question or that, if his Honour did appreciate that that amendment had been made, he failed to appreciate its significance and accordingly applied an incorrect test.

1. It should be noted that his Honour heard this matter late in the afternoon having been told that it was a short matter, likely to take only 10 minutes, and that his Honour proceeded to give an ex tempore judgment quite late in the day.  In delivering an ex tempore judgment, a judge does not of course have the opportunity to edit the language employed to make sure that fine nuances of meaning are precisely expressed in the same way that one may endeavour to do prior to the publication of a written judgment.  Having considered his Honour’s judgment carefully in that light, it seems to me that any suggestion that his Honour applied the wrong test has not been established. 

1. Second, having regard to the course of argument and to the substantial similarities in the language in which the two tests are expressed, some potential for confusion was inherent in the manner in which the matter was put to his Honour and, whilst I am sure he did his best to put the matter clearly, counsel for the appellant did not do sufficient to dispel any misapprehension that may have occurred.

1. Third, I am not satisfied that any injustice has been caused.  It has not been suggested that the ruling that his Honour made in refusing to strike out the statement of claim, if that was the effect of his Honour’s ruling, was capable of prejudicing the defendant’s position at the trial of the action.

1. The issue of injustice was said to arise only because the appellant’s prospects of obtaining a ruling that the defamatory matter was not capable of conveying the imputations pleaded were sufficiently strong, notwithstanding his Honour’s ruling that the contrary was arguable, as to outweigh the obvious advantages of leaving that issue for trial before a judge who would be obliged to decide both the question of whether the material was capable of conveying the imputations and the question of whether the imputations had as a matter of fact been so conveyed.  Whilst that issue was said to be of such importance that real injustice would be caused if the appellant were to be forced to trial in these circumstances, I am not satisfied that that has been established. 

I certify that the preceding paragraphs numbered seven (7) to twelve (12) are a true copy of the Reasons for Judgment herein of his Honour, President Crispin.

Associate:

Date:     15 December 2004

IN THE SUPREME COURT OF THE       )          No. ACTCA 53 – 2003
  )          No. SC 623 of 2003
AUSTRALIAN CAPITAL TERRITORY    )
  )

COURT OF APPEAL  )

ON APPEAL FROM A SINGLE JUDGE OF THE SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

BETWEEN:WIN TELEVISION NSW PTY LIMITED

Appellant

AND:DEREK GOUGH

Respondent

Judges:  Higgins CJ, Crispin P, Weinberg J
Date:  5 November 2004
Place:  Canberra

REASONS FOR JUDGMENT

WEINBERG J:

1. I agree for the reasons given by the Chief Justice and by the President that the application should be dismissed.  I would only add that if his Honour did apply the wrong test by approaching the matter as though it were a strike out application he did so in circumstances that do not warrant the grant of leave in this particular case.

I certify that the preceding paragraph numbered thirteen (13) is a true copy of the Reasons for Judgment herein of His Honour, Justice Weinberg.

Associate:
Date:     15 December 2004

Counsel for the Appellant:  Mr S Wheelhouse SC
Solicitor for the Appellant:  Colquhoun Murphy
Counsel for the Respondent:  Mr T Molomby SC
Solicitor for the Respondent:  Porters Lawyers
Date of hearing:  5 November 2004
Date of judgment:  5 November 2004