Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd [2023] NSWDC 358

District Court New South Wales

Medium Neutral Citation: Andersen v Nine Network Australia Pty Ltd; Andersen v Nationwide News Pty Ltd [2023] NSWDC 358 Hearing dates: 31 August 2023 Date of orders: 08 September 2023 Decision date: 08 September 2023 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) I grant leave to the defendants to seek a separate trial pursuant to Uniform Civil Procedure Rules 2005 (NSW) Pt 28 r 28.2 for the purpose of answering the questions identified in Order 2 below. (2) The questions asked in the separate trial are answered as follows: (a) Is the matter complained of reasonably capable of being understood to be about the plaintiff? Answer: No. (b) Is the matter complained of reasonably capable of being understood to convey the imputations pleaded, or any of them? Answer: No. (3) Pursuant to UCPR r 28.4, both proceedings are struck out and dismissed. (4) The plaintiff is to pay the defendants' costs of this application and of these proceedings, with liberty to apply. (5) Exhibits retained until further order. Catchwords: TORT – defamation – media reports of the murder of a 19-year-old man in a drive-by shooting refer to him as a drug dealer and gang member – his de facto wife brings proceedings for defamation on the basis that these references impute (although she is neither named nor referred to) that she knew of and participated in these activities because she was his de facto wife – defendants challenge identification and capacity – whether there should be a separate trial under r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) of the two issues identified by the defendants – test for identification - whether there was evidence of identification – whether the reasonable person test was satisfied – no identification, let alone a reasonable one – matter not reasonably capable of being understood to convey any of the imputations pleaded - proceedings struck out and dismissed pursuant to UCPR r 28.4 Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-60 Uniform Civil Procedure Rules 2005 (NSW), rr 28.2, 28.4 Cases Cited: Adeang v The Australian Broadcasting Corporation [2016] FCA 1200 Adeang v The Australian Broadcasting Corporation (No 2) [2016] FCA 1599 Alexander-Theodotu v Kounis [2019] EWHC 956 (QB) Cassidy v Daily Mirror Newspapers Ltd [1929] 2 KB 331 Channel Seven Sydney Pty Ltd v Parras [2002] NSWCA 202; [2002] Aust Torts Reports 81-675 Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Coleman v John Fairfax Publications Pty Ltd [2003] NSWSC 564 Consolidated Trust Co Ltd v Browne (1948) 49 SR (NSW) 86 Cooper v Nine Entertainment Co Pty Ltd [2023] FCA 726 Crawley v Vero Insurance Ltd [2012] NSWSC 593 Dingle v Associated Newspapers Ltd [1962] 2 All ER 737; [1964] AC 371 Economou v De Freitas [2016] EWHC 1218 (QB) El Chami v Mackie [2019] NSWSC 821 Ferrier v Jones & Anor [2003] NSWSC 39 Galea v Amalgamated Television Services Pty Ltd (Supreme Court (NSW), Levine J, 20 February 1998, unrep) Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB) Goodfellow v Fairfax Media Publications Pty Ltd [2017] FCA 1152 Graham Charles Evans v John Fairfax Group Pty Ltd [1993] ACTSC 7 Hough v London Express Newspapers Ltd [1940] 3 All ER 31 John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 77 ALJR 1657 Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 Lachaux v Independent Print Ltd; Lachaux v Evening Standard Ltd [2019] 4 All ER 485 Livingstone-Thomas v Associated Newspapers (1969) 90 WN (Pt 1) (NSW) 223 Mirror Newspapers Limited v Harrison (1982) 149 CLR 293 Morgan v Odhams Press [1971] 1 WLR 1239 Plymouth Brethren (Exclusive Brethren) Christian Church v The Age Company Pty Ltd; Plymouth Brethren (Exclusive Brethren) Christian Church v Fairfax Media Publications Pty Ltd [2018] NSWCA 95 Southwell v Bennett [2010] NSWSC 1372 Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 Stephens v Vass [2003] VSC 269 Triguboff v Fairfax Media Publications Pty Ltd [2018] FCA 845 Trkulja v Google Inc (2018) 263 CLR 149 Turner v Bulletin Newspaper Co Ltd (1974) 131 CLR 69 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Youssoupoff v Metro Goldwyn Meyer Pictures Ltd (1934) 50 TLR 581 Zoef v Nationwide News Pty Ltd [2016] NSWCA 283 Texts Cited: R Parkes QC; Professor A Mullis; G Busuttil; A Speker; A Scott; C Strong, Gatley on Libel and Slander (12th ed, 2013, Sweet & Maxwell) D Lusty, "Is There A Common Law Privilege Against Spouse-Incrimination?" (2004) 27 UNSW Law Journal 2 Professor G Sawer, "Note: Morgan v Odhams Press [1971] 1 WLR 1239", (1971) 45 Australian Law Journal 680 C Sewell, "More serious harm than good? An empirical observation and analysis of the effects of the serious harm requirement in section 1(1) of the Defamation Act 2013" (2020) Journal of Media Law Category: Procedural rulings Parties: 2021/00304655: Hanna Andersen (Plaintiff) Nine Network Australia Pty Ltd (Defendant)