Hanson v Hunter [2015] NSWDC 220

District Court New South Wales

Medium Neutral Citation: Hanson v Hunter [2015] NSWDC 220 Hearing dates: 19 and 28 August 2015 Date of orders: 30 September 2015 Decision date: 30 September 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Leave to amend the statement of claim refused. (2) The plaintiff's claims in injurious falsehood (paragraphs 10 – 18) and under the Fair Trading Act 1987 (NSW) are dismissed, with costs payable in accordance with order 3 below. (3) The plaintiff is to pay the defendant's costs of the proceedings for injurious falsehood and under the Fair Trading Act 1987 as well as the costs of this application on an indemnity basis, such costs to be assessed and assessable forthwith and to include: (a) the costs of and incidental to the plaintiff's application to amend in terms of the "First Proposed Amended Statement of Claim" dated 5 May 2015, as defined in paragraph 3 of the Plaintiff's Supplementary Submissions, which was withdrawn on 10 June 2015; (b) the costs of and incidental to the plaintiff's application to amend in terms of the "Second Proposed Amended Statement of Claim" dated 10 June 2015, as defined in paragraph 4 of the Plaintiff's Supplementary Submissions, which was withdrawn on 25 August 2015; (c) the costs of and incidental to the plaintiff's application to amend in terms of the Third Proposed Amended Statement of Claim dated 25 August 2015, containing the "Proposed Amendments", as defined in paragraph 5 of the Plaintiff's Supplementary Submissions, which was unopposed; (d) the costs thrown away by the amendments made to the statement of claim in terms of the "Proposed Amendments", as defined in paragraph 5 of the Plaintiff's Supplementary Submissions; (e) the costs of responding to the claims for relief in the statement of claim for injurious falsehood and misleading and deceptive conduct in contravention of s 42 of the Fair Trading Act 1987 (NSW) pursuant to ss 68 and 72 of that Act. (4) The plaintiff file an amended statement of claim in terms of the draft amended statement of claim which is annexure A to the plaintiff's submissions dated 25 August 2015, such amended statement of claim to be filed and served in 14 days. (5) The defendant file a defence 28 days after service of the statement of claim. (6) These proceedings listed for further directions at 9 am on Thursday 3 December 2015. Catchwords: TORT - plaintiff commenced proceedings in 2011 for injurious falsehood, defamation and a claim under the Fair Trading Act 1987 (NSW) - no special damages particularised in the injurious falsehood claim - similar defects in Fair Trading Act claim - statement of claim not served for 18 months - further delay in litigation while validity of service challenged - defendant seeks further and better particulars and foreshadows application to challenge pleadings - plaintiff seeks leave to abandon injurious falsehood and Fair Trading Act claims - plaintiff brings application to plead republication and special damage in the defamation claim which is abandoned after judgment is reserved - whether defendant's application for summary dismissal should still proceed - whether the plaintiff should pay the costs of the abandoned claims and proposed amendments on an indemnity basis, assessable forthwith Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62 and 64 Fair Trading Act 1987 (NSW), s 42 Uniform Civil Procedure Rules 2005 (NSW), rr 1.2, 6.2(4)(b)(ii), 13.4 and 14.28 Cases Cited: Aon Risk Services Australia Pty Ltd v Australian National University (2009) 239 CLR 175 Bateman v Fairfax Media Publications Pty Ltd (No 4) [2015] NSWSC 610 Bateman v Fairfax Media Publications Pty Ltd (No 5) [2015] NSWSC 830 Boland v Yates Property Corporation Pty Ltd (1999) 167 ALR 575 Chaina v Alvaro Homes Pty Ltd [2008] NSWCA 353 Energetech Australia Pty Ltd v Sides Engineering Pty Ltd [2005] NSWSC 1143 Equuscorp Pty Ltd and Anor v Glengallan Investments Pty Ltd and Ors [2006] QCA 194 Fiduciary Lt v Morningstar Pty Ltd [2002] NSWSC 432 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hanson v Hunter (District Court of New South Wales, Bozic SC DCJ, 10 May 2013) Heugh v Askin [2014] WASC 30 Hunter v Hanson [2014] NSWCA 263 Hunter v Hanson [2015] HCATrans 16 Ianelli v Hancock t/as Hancocks Solicitors [2012] NSWSC 417 Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 Lahoud v Lahoud [2006] NSWSC 126 Lighthouse Forward Planning Pty Ltd v Queensland Newspapers Pty Ltd [2014] QSC 217 Lucire v Parmegiani [2012] NSWCA 86 McGrane v Channel Seven Sydney Pty Ltd [2012] QSC 133 Merman Pty Ltd v Cockburn Cement Ltd (1988) 84 ALR 521 Miller v Associated Newspapers Ltd [2012] EWHC 3721 (QB) Mio Art Pty Ltd v Macequest Pty Ltd [2013] QSC 211 Oliver v Bryant Strata Management Pty Ltd (Supreme Court of New South Wales, Levine J, 16 May 1995) Pisano v Thrum (No 4) [2011] WASC 290 Prebble v Australian Broadcasting Commission (Levine J, 11 July 1997, unreported) Seafolly Pty Ltd v Madden (No 4) (2014) 320 ALR 763 Shelton v NRMA [2004] FCA 1393 Skalkos v T & S Recoveries Pty Ltd [2004] NSWCA 281 Texts Cited: Ritchie's Uniform Civil Procedure NSW (LexisNexis) Category: Procedural and other rulings Parties: Plaintiff: Benjamin Alan Hanson Defendant: Scott Hunter Representation: Counsel: Plaintiff: Ms R White Defendant: Mr C J Bevan