Hatfield v TCN Channel Nine Pty Ltd

Judgment 1The subject matter of this judgment is the particularisation of special damages in a Statement of Claim, in which the plaintiff claims damages in defamation. The nature of the claim for special damages is highly unusual - so unusual that the defendants have, by Notice of Motion dated 10 August 2010, moved for orders, pursuant to UCPR 13.4, or alternatively, UCPR 14.28, that it be dismissed or struck out as an abuse of process or as disclosing no reasonable cause of action. 2Since it is not asserted that "the proceedings" (that is the claim in defamation) are frivolous or vexatious, an abuse of process, or that no reasonable cause of action is disclosed, reliance on UCPR 13.4 is misconceived. If the defendants are to achieve the result they seek, it must be under UCPR 14.28, which provides: (1) The court may at any stage of the proceedings order that the whole or any part of a pleading be struck out if the pleading: (a) discloses no reasonable cause of action or defence or other case appropriate to the nature of the pleading, or (b) has a tendency to cause prejudice, embarrassment or delay in the proceedings, or (c) is otherwise an abuse of the process of the court. (2) The court may receive evidence on the hearing of an application for an order under subrule (1). 3The rule may be invoked where it is established that the claim cannot succeed: see Australian Federation of Islamic Council Inc v Westpac Banking Corporation (1988) 17 NSWLR 623; Galaxy Communications Pty Ltd v Paramount Films of Australia Inc (unreported, NSWCoA, 27 March 1998); Transocean Capital Pty Ltd v AFSIG Pty Ltd [2006] NSWSC 806; 202 FLR 270. The power should be exercised only in plain and obvious cases: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125. 4No evidence was tendered in support of the Notice of Motion. The account of relevant facts that follows is, I understand, uncontroversial. 5The unusual claim calls for some explanation. 6The defamation proceedings were commenced by the plaintiff on 7 June 2010 by filing a Statement of Claim, naming three defendants. The plaintiff claims that one episode of a multi-part television series, broadcast on 9 May 2010, and for which each defendant was responsible, conveyed imputations defamatory of her. (The date of the publication is significant.) 7The broadcast of the programme did not take the plaintiff by surprise. A book under the same title had been published in January 2010. It seems that the plaintiff was, in the book, plainly identified by name. The plaintiff claims that at least one chapter of the book conveyed imputations that defamed her. 8The book was converted into the multi-part television series. It seems clear that the plaintiff was not named in the programme; whether she was identified therein may be an issue for determination in the substantive proceedings. It is not material to the present question. It seems that the character who she claims represented her was given the name "Wendy Jones". 9That the series was to be broadcast was widely publicised. 10The plaintiff anticipated that the broadcast of the programme would convey the same or similar imputations, defamatory of her, that she claims were conveyed in the book. 11Accordingly, on 19 February 2010, by summons filed in this Division of the Court, the plaintiff sought, pursuant to UCPR 5.3, orders for preliminary discovery of any episode in the series in which she was named, depicted (by an actor, picture, or otherwise) and/or referred to, and for preliminary discovery of the transcript of any such episode. The summons named as defendants the three entities that are the defendants to the present proceedings. 12The purpose of the plaintiff in commencing the summons proceedings was to obtain information upon which to base a decision whether to commence proceedings for injunctive relief, restraining the publication of any defamatory imputations. 13After a contested hearing, the summons was dismissed: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWSC 161 per Harrison J. The plaintiff sought leave to appeal to the Court of Appeal. On 8 April 2010, leave to appeal was granted, but the appeal was dismissed: Hatfield v TCN Channel Nine Pty Ltd [2010] NSWCA 69. The reasons stated by the Court of Appeal are important. The defendants indicated that they would plead a defence of justification to the foreshadowed imputations. The Court of Appeal considered that it could not be said, on the limited material available, that such a defence was "not available". It also took into account the importance of unfettered free speech ([106] - [108]). The relevance of this was that it impacted upon the likelihood of the grant of an injunction restraining publication. It is also noteworthy that the Court of Appeal judgment records that the plaintiff had sought, by way of compromise, and the defendants had refused, confidential access to a recording or transcript of the series to enable her to respond to any allegations of fact made about her, and had refused to give any assurance that she was not depicted, directly or incidentally in the series. 14The Court of Appeal ordered the plaintiff to pay the defendants' costs of the appeal. On 28 May 2010 Harrison J ordered the plaintiff to pay the defendants' costs of the proceedings before him. 15It is the costs of those proceedings (both those incurred by the plaintiff on her own behalf and those costs of the defendants that she has been ordered to pay) that are the basis of the plaintiff's claim for special damages. She pleads that she took the proceedings: "... in order to prevent and/or mitigate any damage caused to her reputation by reason of the broadcast of the TV Show ..." 16It is this claim that is the subject of the Notice of Motion filed on behalf of the defendants, seeking, in effect, summary dismissal of this aspect of the plaintiff's claim. 17On behalf of the plaintiff, counsel sought to support the claim by reiterating that the costs had been incurred in pursuance of the plaintiff's (undoubted) duty to mitigate any damage suffered in consequence of a defendant's wrongdoing. That such a duty exists is uncontroversial. The plaintiff took the proceedings, the argument ran, in order to enable her to mitigate the damage she anticipated would, or might, be caused to her reputation by publication of the programme. Of course, the preliminary discovery proceedings of themselves could not have done that: in truth, those proceedings were a first step in a potential process, and were designed to put the plaintiff in a position (in accordance with UCPR 5.3) in which she could decide whether to commence proceedings to restrain publication. Had she succeeded in doing so, she would have suffered no damage. 18I emphasise here, for reasons that will become apparent, that the publication of which the plaintiff complains in the Statement of Claim is the broadcast of the programme, alleged to have taken place on 9 May 2010. The preliminary discovery proceedings pre-dated that publication. That is notwithstanding that, as was recognised by the plaintiff's senior counsel and by the Court of Appeal, some publication between the defendants, and to actors, producers and perhaps others involved in making the series, could be assumed to have taken place previously. The plaintiff has not sued on any such publication, perhaps because she regards it as de minimis . 19The defendants' case in support of the Notice of Motion is that the claim is simply untenable. This is advanced on two separate bases; First, as it was expressed, "a party is not entitled to bring collateral proceedings for the purpose of challenging costs orders made by another Court (or indeed the same Court)"; second, that, while a successful plaintiff claiming damages in consequence of a legal wrong is entitled to include in the claim any costs incurred in the discharge of the duty to mitigate damage, that entitlement does not extend to costs incurred prior to the commission of the wrong in question. 20I will deal with each in turn.