Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Nationwide News Pty Ltd v Hibbert [2015] NSWCA 13 Hearing dates: 2 February 2015 Decision date: 17 February 2015 Before: Barrett JA at [1]; Emmett JA at [2]; Sackville AJA at [3] Decision: 1. The applicants' summons seeking leave to appeal is dismissed. 2. The applicants pay the respondent's costs of the application. Catchwords: DEFAMATION - application to strike out imputations on the ground that they do not differ in substance - application for leave to appeal – whether application gives rise to any issue of principle or risk of injustice if refused – application for leave to appeal refused Legislation Cited: District Court Act 1973 (NSW) Uniform Civil Procedure Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Cases Cited: Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 Hibbert v Nationwide News Pty Ltd (District Court (NSW), Bozic DCJ, 9 May 2014, unrep) Prince v Malouf [2014] NSWCA 12 Toben v Milne [2014] NSWCA 200 Younan v Nationwide News Pty Ltd [2013] NSWCA 335 Category: Principal judgment Parties: Nationwide News Pty Limited (First applicant) Josh Massoud (Second applicant) Darren Hibbert (Respondent) Representation: Counsel: T D Blackburn SC / L Barnett (Applicants) T Molomby SC / R Rasmussen (Respondent) Solicitors: Ashurst Australia (First and Second Applicants) Zali Burrows Lawyers (Respondent) File Number(s): 2014/165026 Publication restriction: None Decision under appeal Court or tribunal: District Court Date of Decision: 9 May 2014 Before: Bozic DCJ File Number(s): 2014/60638 [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Court or Tribunal: District Court Date of Decision: 9 May 2014 Before: Bozic DCJ File Number(s): 2014/60638 Judgment 1. BARRETT JA: I agree with Sackville AJA. 2. EMMETT JA: The applicants have applied for leave to appeal from orders made by the District Court refusing to strike out certain imputations pleaded by the respondent in defamation proceedings brought by the respondent against the applicants. I have had the advantage of reading in draft form the proposed reasons of Sackville AJA for refusing leave to appeal. I agree, for the reasons proposed by Sackville AJA, that the application for leave to appeal should be dismissed with costs. In particular, it is significant that the procedure contemplated by r 28.2 of the Uniform Civil Procedure Rules 2005 (NSW) was not invoked by the applicants and, accordingly, they would not be precluded from ventilating again the question of whether or not the imputations are reasonably capable of being supported. The respondent conceded that it would be open for the applicants to seek to do so in the District Court, although whether they are permitted to do so would be at the discretion of that Court. 3. SACKVILLE AJA: The applicants seek leave to appeal from a decision of a Judge of the District Court (Bozic DCJ): Hibbert v Nationwide News Pty Ltd (District Court (NSW), 9 May 2014, unrep) (Primary Judgment). The applicants challenge the decision of the primary Judge insofar as his Honour declined to strike out certain imputations pleaded by the respondent in his Statement of Claim filed on 26 February 2014 (Statement of Claim). The applicants require leave to appeal as the judgment of the District Court is interlocutory: District Court Act 1973 (NSW), s 127(2)(a). 4. The respondent seeks damages for defamation against the applicants. The defamatory publications are said to comprise an article appearing in The Daily Telegraph of 13 March 2013 and a similar (but not identical) article published the previous day on the first respondent's website. The first respondent is the publisher of The Daily Telegraph and the second respondent is alleged to have written the defamatory material. 5. No distinction for the purposes of the application for leave to appeal has been drawn between the two publications. It is therefore necessary only to refer to The Daily Telegraph article (Article). The Article 1. The Article appeared under the headline "Drug probe is hunting The Gazelle". The Article stated that "a mystery assistant" of a named sports scientist had "emerged as the key figure in ASADA's probe into Cronulla and Manly". ASADA is the acronym for the Australian Sports Anti-Doping Authority. Cronulla and Manly are teams participating in the Rugby League competition conducted by the National Rugby League. 2. The Article "reveal[ed]" that the sports scientist had engaged the help of an alleged supplement expert known to players and coaching staff as "The Gazelle". The Article said, among other things, that The Gazelle had links to a large national supplement retailer and that: "concerns are rife that 'The Gazelle' stayed in contact with certain players and Manly could face difficulties should it be established they used, purchased or possessed banned supplements with his assistance". 1. The Article also included a colour photograph of a gazelle with the following caption: "The Daily Telegraph does not suggest that this gazelle sold illegal drugs". The Statement of Claim 1. The Statement of Claim pleads (para 5) that the Article in its natural and ordinary meaning conveyed the following defamatory imputations of the respondent: "a) He knowingly sold illegal drugs …; b) He sold to Cronulla and Manly players substances that he knew were banned …; c) He assisted Manly players to use supplements that he knew were banned …; d) He assisted Manly players to purchase supplements that he knew were banned …; e) He assisted Manly players to possess supplements that he knew were banned …; f) He sold, to NRL players in the six clubs named in the [Australian Crime Commission] report, the peptides CJC-1295, GHRP-6 and beta thymosin, that he knew to be illegal …" 1. The Statement of Claim also pleads that the first respondent has identified the respondent in many articles published in its newspapers and on its websites as The Gazelle. For the purposes of the present application no issue arises as to identification. The Notice of Objection 1. The applicants have not as yet filed a defence. However, on 17 April 2014, they filed a document entitled "Defendant's Notice of Objection to the Statement of Claim" (Notice of Objection). Relevantly, the Notice of Objection sought orders striking out Imputations 5(a), (c) and (f). The Notice of Objection also sought a direction that the respondent be required to elect between Imputations 5(b), (d) and (e), on the ground that these imputations do not differ in substance from each other. This direction was sought in reliance on Uniform Civil Procedure Rules (UCPR) r 14.30(3), which provides that a plaintiff in defamation proceedings must not rely on two or more imputations allegedly made by the same publication "unless the imputations differ in substance". 2. The Notice of Objection bears a notation: "Form 1 UCPR r 18.2" UCPR r 18.2(1) requires a person moving the Court for an order to file and serve a notice of motion on each person affected by the proposed order. However, r 18.2(2) allows a person to move the court without filing or serving a motion in certain circumstances, including where the court dispenses with the requirement or the practice of the court permits a party to make a motion without the prior filing or service of a notice of motion. The Primary Judgment 1. The primary Judge heard argument on the Notice of Objection and then delivered an ex tempore judgment. His Honour noted at the outset of the Primary Judgment that the applicants sought to strike out the respondent's pleaded imputations. 2. The primary Judge dealt first with Imputation 5(a). His Honour recorded that the respondent had clarified that the word "illegal" when used in Imputation 5(a) means "contrary to law". On this basis, his Honour held that Imputation 5(a) was capable of being conveyed by the Article and thus should not be struck out. The applicants do not challenge this holding. 3. The primary Judge next addressed the applicants' submission that Imputations 5(c), (d) and (e) do not differ in substance and convey no more than that The Gazelle had been involved in the supply of illegal drugs and banned substances (Imputations 5(a) and (b)). His Honour rejected the submission and concluded that the Article was capable of giving rise to imputations other than that the respondent had sold illegal drugs, including imputations of "a more sinister involvement" with the players at the named clubs. Thus the Article had the capacity to convey Imputations 5(c), (d) and (e). 4. The primary Judge acknowledged that there was some overlap between Imputation 5(b), on the one hand, and Imputations 5(c), (d) and (e) on the other. Nonetheless, he considered that they differed in substance and therefore the pleading did not contravene UCPR r 14.30(3). 5. Finally, the primary Judge held that Imputation 5(f) was not capable of being conveyed by the Article and should be struck out. The respondent has not challenged that holding. The Applicants' Argument 1. The applicants' Amended Summary of Argument in this Court identifies three questions for determination in the proposed appeal, as follows (omitting references to the article on the first respondent's website): "(a) Did his Honour err in holding that imputations 5(b), 5(c), 5(d) and 5(e) each differed in substance? (b) Did his Honour err in holding that imputations 5(c), 5(d) and 5(e) are adequate in their form? (c) Did his Honour err in holding that imputations 5(c), 5(d) and 5(e), as explained by the Respondent, are reasonably capable of being conveyed?" 1. The Amended Summary of Argument concentrates on Questions (a) and (b). The argument advanced in the Amended Summary, to the effect that Imputations 5(c), (d) and (e) are not reasonably capable of being conveyed by the Article, is limited to an assertion to that effect. In a Supplementary Summary of Argument, the applicants contend, without elaboration, that the Article is not capable of conveying three separate and distinct stings concerning the respondent, as pleaded in Imputations 5(c), (d) and (e). As Mr Blackburn SC (who appeared with Ms Barnett for the applicants) seemed to acknowledge, this contention is in essence another way of putting the applicants' submission that the three imputations do not differ in substance. Reasoning 1. A defendant in defamation proceedings who wishes to contend that the matter complained of is incapable of conveying the imputation pleaded by the plaintiff may seek an order for the separate determination of that question pursuant to UCPR r 28.2. The contention raises a question of law: Prince v Malouf [2014] NSWCA 12 at [98] per curiam. (Examples of the procedure being utilised are Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 and Dennis v Australian Broadcasting Corporation [2008] NSWCA 37). If the decision on the separate question substantially disposes of any claim for relief in the proceedings, the Court may dismiss the whole or part of any claim for relief or make other appropriate orders: r 28.4. It follows that a separate decision on the question of whether the matter complained of is capable of supporting a pleaded imputation ordinarily finally resolves that issue, subject to any application for leave to appeal. This is the procedure adopted in Amalgamated Television v Marsden and Dennis v Australian Broadcasting Corporation. 2. The applicants did not invoke the procedure provided by UCPR r 28.2. They did not ask the primary Judge to make an order for the decision of a separate question and no such order was in fact made. Nor was any separate question for decision formulated or identified. In some cases, it may be possible to characterise an interlocutory decision as in substance the determination of a separate question even in the absence of a formal order under r 28.2. An example is Younan v Nationwide News Pty Ltd [2013] NSWCA 335 at [4] (Macfarlan JA; Bathurst CJ and Beazley P agreeing), where the defendant applied for an order under r 28.2 but no formal order was made, apparently though an oversight. But the present case is quite different. The primary Judge correctly approached the Notice of Objection as an orthodox interlocutory application to strike out portions of the respondent's pleading. 3. Mr Blackburn accepted that the applicants had not invoked UCPR r 28.2 or otherwise identified a separate question for determination. He also accepted, as did Mr Molomby SC (who appeared with Mr Rasmussen for the respondent), that the primary Judge's decision does not, of itself, preclude the applicants from contending at the trial that the Article is not reasonably capable of supporting each of Imputations 5(b), (c), (d) and (e). This is not to say that the trial Judge will be bound to entertain such an application. The point is that the decision of which the applicants complain does not have the finality ordinarily associated with a decision on separate question under UCPR r 28.2. 4. Mr Blackburn contended that the Court should nevertheless grant leave to appeal on the question of whether Imputations 5(c), (d) and (e) differ in substance from each other and from Imputation 5(b). I accept that the question is arguable, although I am by no means convinced that the imputations do not differ in substance. But Mr Blackburn did not identify any issue of principle raised by the applicants' argument: see Toben v Milne [2014] NSWCA 200 at [8]–[19] (Beazley P and Ward JA), where the relevant principles are discussed. Nor was he able to point to any significant injustice that would be sustained by the applicants if the case proceeds to trial on the surviving pleaded imputations. Mr Blackburn submitted that the applicants would incur greater expense in preparing for trial if the challenged imputations remain in the Statement of Claim. However, the submission amounted to no more than a somewhat vague assertion unsupported by evidence or, for that matter, a draft defence. 5. The decision of the primary Judge is properly characterised as an exercise of discretion on a point of practice or procedure, rather than a decision which affects substantive rights. The Court is reluctant to grant leave to appeal from such a decision. The reason for that reluctance was given almost 70 years ago by Jordan CJ (Nicholas CJ in Eq concurring) in In re the Will of FB Gilbert (Deceased) (1946) 46 SR (NSW) 318 at 323: "In [cases of this kind], if a tight rein were not kept upon interference with the orders of Judges of first instance, the result would be disastrous to the proper administration of justice. The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercises of discretion in interlocutory applications from a Judge in Chambers to a Court of Appeal." 1. Jordan CJ's strictures are given added force by the direction in s 56(2) of the Civil Procedure Act 2005 (NSW) requiring the Court to seek to give effect to the "overriding purpose" stated in s 56(1) when exercising any power conferred by the Act or the rules of court. That overriding purpose is to facilitate the just, quick and cheap resolution of the real issues in the proceedings. The significance of the overriding purpose in the conduct of litigation has recently been emphasised by a unanimous High Court: Expense Reduction Analysts Group Pty Ltd v Armstrong Strategic Management and Marketing Pty Ltd [2013] HCA 46; 250 CLR 303 at [56]-[57]. The overriding purpose is as important in defamation proceedings as in other forms of civil litigation: Dennis v Australian Broadcasting Corporation at [29]-[31] (Spigelman CJ; Basten and Campbell JJA agreeing). 2. The applicants have not demonstrated either that their proposed appeal raises an issue of principle or that a refusal to grant leave would create a risk of significant injustice to them. In these circumstances, the application does not contain any feature justifying the grant of leave to appeal. 3. For these reasons, the applicants' summons seeking leave to appeal should be dismissed, with costs. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 February 2015