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McVicker v Australian Broadcasting Corporation[2023] QDC 167

McVicker v Australian Broadcasting Corporation[2023] QDC 167

DISTRICT COURT OF QUEENSLAND

CITATION:

McVicker v Australian Broadcasting Corporation [2023] QDC 167

PARTIES:

ROBERT MCVICKER

(Plaintiff/Respondent)

v

AUSTRALIAN BROADCASTING CORPORATION

(Defendant/Respondent)

FILE NO:

1542/22

DIVISION:

Civil

PROCEEDING:

Application

ORIGINATING COURT:

District Court

DELIVERED ON:

22 August 2023 (ex tempore, revised from transcript)

DELIVERED AT:

Brisbane

HEARING DATE:

22 August 2023

JUDGE:

Andreatidis KC DCJ

ORDERS:

  1. 1.
    Pages 3-9 of exhibit 1 of the affidavit of Nicole Neal, sworn 19 June 2023, stand as the pleadings, being the further amended statement of claim.
  1. 2.
    Summary judgment is granted to dismiss any claim for defamation from 1 July 2021.
  1. 3.
    The summary judgment application is otherwise dismissed.
  1. 4.
    The defendant have leave to amend the application to include an application for a permanent stay on the basis of an abuse of process.
  1. 5.
    The application for a stay of the proceedings as an abuse of process is dismissed.
  1. 6.
    The application to strikeout paragraphs 3A, 6, 13A and 14 of the further amended statement of claim is granted.
  1. 7.
    The plaintiff have leave to amend paragraphs 3A, 6, 13A and 14 of the further amended statement of claim.
  1. 8.
    The plaintiff is to file and serve the second further amended statement of claim by 19 September 2023.
  1. 9.
    The defendant is to file and serve any amended defence by 17 October 2023.
  1. 10.
    The plaintiff is to file and serve any reply by 31 October 2023.
  1. 11.
    The proceeding be listed for further review before Judge Andreatidis KC at 9:30am on 3 November 2023.
  1. 12.
    The defendant pay the plaintiff’s costs in respect of the appearance on 19 June 2023 on the standard basis. Otherwise order that the plaintiff pay the defendant’s costs of an incidental to the application, but 50% of those costs.

CATCHWORDS:

PRACTICE – DEFAMATION – SUMMARY JUDGMENT – STRIKE OUT – LIMITATION              PERIOD              – PROPORTIONALITY – principle of proportionality – whether the principle of proportionality applies in Queensland – if the principle of proportionality applies, should the discretion be exercised

LEGISLATION

Civil Proceedings Act 2005 (NSW) s 60

Defamation (Model Provisions) and Other Legislation Amendment Act 2021 (Qld)

Defamation Act 2005 (Qld), ss 10A, 10AB, 33

District Court Act 1967 (Qld)

Human Rights Act 2019 (Qld) s 25

Limitation of Actions Act 1974 (Qld), ss 10AA, 10AB, 50.

Uniform Civil Procedure Rules, rr 5, 171, 293, sch 3

CASES

Baker v Dubickas [2021] QDC 198

Bleyer v Google Inc (2014) 88 NSWLR 670

Courtney v Pinnacle Media Group Ltd & Ors [2021] QSC 91

Dow Jones & Company Inc v Gutnick (2002) 210, CLR 575

Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595

Gray v Morris [2004] 2 Qd R 118

Ingram v Ingram [2022] NSWDC 653

Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70

Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946

Rock v Henderson [2021] NSWCA 155

Smith v Lucht [2014] QDC 302

Smits v Cugola [2022] QCA 262

Wardley Australia Limited v Western Australia (1992) 175 CLR 514

Watney v Kencian [2018] 1 Qd R 407

COUNSEL:

Mr M de Waard (Plaintiff/Respondent)

Ms L Barnett (Defendant/Applicant)

SOLICITORS:

Mills Oakley (Plaintiff/Respondent)

ABC Legal (Defendant/Applicant)

  1. Introduction
  1. [1]
    The defendant (ABC) applies for:
  1. (a)
    summary judgment pursuant to r 293(2) of the Uniform Civil Procedure Rules 1999 (Qld) (UCPR); and
  1. (b)
    strike out orders of aspects of the statement of claim pursuant to r 171 of the UCPR.
  1. [2]
    It also became apparent during the course of the hearing that the ABC – in the alternative to summary judgment – sought a stay of the proceeding as an abuse of process, pursuant to what can be described as the “proportionality principle”, that is, no substantial tort has been committed in the jurisdiction and, in the circumstances, pursuing an expensive action is disproportionate to the cost, time, etcetera of pursuing it and therefore, it is an abuse of process.
  1. [3]
    I gave leave for the application to be amended to include an application for an order that the proceeding be stayed as an abuse of process. I did that on a strict condition: that if I was persuaded by ABC that I had power to dismiss a proceeding as an abuse of process pursuant to the “proportionality principle”, or if I was going to say something that would prejudice the plaintiff in terms of the exercise of discretion, I would not deliver reasons and instead, I would make some directions about providing further material, both affidavits and submissions. For the reasons which follow, even if I did have power to dismiss the proceeding as an abuse of process pursuant to the “proportionality principle” – a point which I have not finally decided – I would not do so.

Which version of the Defamation Act applies?

  1. [4]
    It was – I think – correctly put to me that there were really two versions of the Defamation Act 2005 (Qld) (the Defamation Act, or, the Act) that one had to have regard to. Because of the date of the first upload, it was relevant to have regard to the Defamation Act as it existed then and that version was effective as at 1 January 2016 but it was also, I think, correctly put to me that because of the transitional provisions that are recorded in the Limitation of Actions Act 1974 (Qld) and some other submissions that were made on behalf of the ABC, it was also relevant to have regard to the version of the Defamation Act as it existed as at 1 July 2021.
  1. [5]
    The Defamation (Model Provisions) and other Legislation Amendment Act 2021 (the Amending Act) introduced important reforms to defamation law in Queensland including, relevantly:
  1. (a)
    the introduction of the single publication rule;[1] and
  1. (b)
    changing when a cause of action in defamation accrues to be by reference to the date of publication[2] (that is when the matter, in electronic form, was first uploaded);[3]
  1. (c)
    transitional provisions which apply to publications made before commencement of the provisions in the Amending Act (the commencement date being 1 July 2021).
  1. [6]
    Because the publications occurred before the commencement of the provisions in the Amending Act:
  1. (a)
    the defence of triviality[4] is still available to the ABC; and
  1. (b)
    the requirement to plead and prove “serious harm”[5] is not imposed on Mr McVicker.

Limitation period

Background

  1. [7]
    The proceeding arises in relation to an article entitled “Best Jet Founder Breaks Silence after Company’s Collapse” (the Article first published by the ABC on its website on 5 January 2019).
  1. [8]
    Mr McVicker contends that the Article was defamatory of him.
  1. [9]
    On 6 January 2020 the limitation period in relation to the first publication of the Article expired.
  1. [10]
    On 26 August 2021 Mr McVicker’s solicitors sent to the ABC a document that they described as described as being a concerns notice.
  1. [11]
    On 14 September 2021 the ABC updated the Article to include an editor’s note stating in effect that it:
  1. (a)
    had reported on claims made by the founder of Best Jet;
  1. (b)
    did not adopt or endorse any of those claims; and
  1. (c)
    did not intend to make any adverse suggestion regarding Mr McVicker.
  1. [12]
    The Article, whilst originally published on 5 January 2019 was, it is contended by Mr McVicker republished on the ABC’s website because it was searchable and available to be downloaded.
  1. [13]
    On 23 September 2021 the ABC responded to the concerns notice.
  1. [14]
    On 29 June 2022 Mr McVicker commenced these proceedings.
  1. [15]
    The Claim and Statement of Claim was not served until on or about 8 March 2023.
  1. [16]
    A draft further Amended Statement of Claim was provided by Mr McVicker to the ABC following:
  1. (a)
    the filing and serving of a Defence;
  1. (b)
    correspondence from the ABC;
  1. (c)
    the filing and serving of this application.
  1. [17]
    That draft Further Amended Statement of Claim has not been filed and is before the Court by way of an exhibit to an affidavit.[6]
  1. [18]
    I can understand why that occurred and why it was done that way. The parties were, after discussion with me this morning, content and confirmed that the application was to be conducted on the basis that the draft further amended statement of claim that was in the affidavit is the relevant version and that it was appropriate and in order for me to make an order that that draft stand as the pleading. No one opposed an order to that effect being made.
  1. [19]
    The ABC:
  1. (a)
    accepts that there is publication that is sued upon and within time (i.e., 28, 29 and 30 June 2021).
  1. (b)
    contends that in that period there were at best two downloads, one for less than 10 seconds (the first download) and another for just under two minutes (the second download).
  1. (c)
    accepts that the second download is capable of amounting to publication.
  1. [20]
    What is presently unknown is the identity of the person or persons who involved in the second download or the first download. The ABC asserts that information obtained on subpoena indicates that the person who had the second is someone associated with Regional Express/Rex Airlines. It is unnecessary for me in this application to make any findings in relation to these matters of fact.

Legislative framework

  1. [21]
    By s 10AA of the Limitation of Actions Act:
  1. (a)
    an action on the cause of action for defamation must not be brought after the end of a limitation period of one year running from the date of the publication (s 10AA(1));
  1. (b)
    “date of the publication”, in relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access (s 10AA(4)).
  1. [22]
    Section 10AB introduced the single publication rule, that is, regardless of when a matter was downloaded, the cause of action accrued on the date of the first publication (that is the date on which the matter was first uploaded).[7]
  1. [23]
    Sections 10AA and 10AB materially altered how the limitation period operates for defamation. Prior to the introduction of s 10AA and s 10AB a plaintiff who was out of time to bring proceedings in relation to the first publication was still able to bring proceedings if they were able to establish that the matter had been downloaded in the 12-month period preceding the commencement of the proceedings.[8]
  1. [24]
    The transitional provisions are in s 50 of the Limitation of Actions Act 1974 (Qld). Relevantly, s 50(3) of Limitation of Actions Act provides:
  1. “Section 10AB extends to a first publication before the commencement of the section, but only in respect of subsequent publications after the commencement.”

Contentions

  1. [25]
    The ABC contends that
  1. (a)
    The effect of s 50(3) is to apply the single publication rule retrospectively but only for publications (that is downloads) after 1 July 2021 (being the date the provision commenced).
  1. (b)
    Where a plaintiff relies upon publication/downloads in the period after 1 July 2021, the cause of action in respect of those publications is taken to have accrued on the date that the matter was first uploaded, even if that date occurred prior to the commencement of s 10AB (that is prior to 1 July 2021).
  1. (c)
    In the circumstances of this matter, by virtue of the operation of ss 50(3), 10AA and 10AB of the Limitation of Actions Act 1974 (Qld), Mr McVicker’s claim is in time only in respect of publications in the three day period 28, 29 and 30 June 2021.
  1. [26]
    The ABC points to two decisions in other jurisdictions in support of its construction[9]. The decisions support the ABC’s construction.
  1. [27]
    Mr McVicker contends that:
  1. (a)
    On the proper construction of the Limitation of Actions Act 1974 (Qld), he is entitled to sue on any publication published in the 12 months prior to the date of filing. He asserts that he is entitled to sue on all publications from 29 June 2021.
  1. (b)
    The single publication rule has not application because it did not take effect until 1 July 2021.
  1. [28]
    Mr McVicker points to:
  1. (a)
    the absence of any extrinsic material in the form of explanatory notes;
  1. (b)
    what I think is fair to characterise as the vagueness of what is said in the Second Reading Speech; and
  1. (c)
    the absence of any previously decided cases to resist the summary judgment application or the applications that are brought today generally.

Proper construction

  1. [29]
    I accept the construction contended for by the ABC. I think that is clear from the language used in the provisions that the ABC relies on. It takes an appreciation of the differences between upload and download and the way the definitions work but, once that is clearly in mind, the meaning of the sections is very clear.
  1. [30]
    The term “publication” is not defined in the Defamation Act 2005 (Qld).
  1. [31]
    Since the High Court decision in Dow Jones & Co Inc v Gutnick[10] the act of downloading material has been held to constitute “publication” for the purposes of determining both the time and place of publication of alleged defamatory matter on the internet.
  1. [32]
    There is nothing in the Limitations of Actions Act or in the Defamation Act 2005 (Qld) that suggests this common law definition of “publication” has changed in the context of defamation proceedings.
  1. [33]
    The phrase “date of the publication” is defined in both s 10AA(4) and s 10AB(6) to mean:
  1. “In relation to the publication of matter in electronic form, means the day on which the matter was first uploaded for access or sent electronically to a recipient.”
  1. [34]
    The definition:
  1. (a)
    Commences by reference to the “publication” of a matter – that is, the act of downloading the material.
  1. (b)
    In relation to the downloading, the “date of the publication” is the day on which it was first uploaded.
  1. [35]
    By virtue of sections 10AA and 10AB of the Limitations of Action Act 1974 (Qld), as from 1 July 2021:[11]
  1. (a)
    Any cause of action for defamation “in relation to” the downloading, accrues on the date of the first publication, (that is the date it was first uploaded).
  1. (b)
    In respect of any subsequent publication, the cause of action accrues on the date of the first publication (that is the date it was first uploaded).
  1. [36]
    Regard is then to be had to the transitional provision, section 50.
  1. [37]
    Relevantly, s 50(3) of the Limitations of Action Act 1974 (Qld) contains two matters that are connected by the expression “but only”:
  1. (a)
    First, it provides that s 10AB extends to a first publication before the commencement of the section. That is, it extends to a first download that occurred before 1 July 2021.
  1. (b)
    Second, that is only in respect of subsequent publications after commencement. That is the first matter applies only in respect of subsequent downloads that occur after 1 July 2021.
  1. [38]
    The plain and ordinary language of ss 10AA, 10AB and s 50(3) of the Limitations of Actions Act have the effect that:
  1. (a)
    When a cause of action accrues is not by reference to downloads of the material.
  1. (b)
    The cause of action accrues by reference to when it is uploaded for the first time.
  1. (c)
    The single publication rule applies to downloads of content that occurred after 1 July 2021 even if the materials were available online prior to 1 July 2021.
  1. (d)
    The single publication rule applies to a first download that occurred before 1 July 2021 but only in respect of subsequent downloads after 1 July 2021.
  1. [39]
    I accept ABC’s contention that on the facts here, any publication on 28, 29 and 30 June 2021 are actionable. I accept the diagrammatic representation of the effect of the legislation on the present facts as prepared on behalf of ABC which I reproduced below.

McVicker v Australian Broadcasting Corporation [2023] QDC 167

No application for extension of time

  1. [40]
    I note that there was no application for an extension of time by Mr McVicker.

Why does the limitation period matter?

  1. [41]
    So why does the limitation period matter here? There are really two purposes for which the limitation issue was raised by the ABC. In the context of the proportionality issue, it is raised as context within which that application is made and for the summary judgment application, it is really focused on any publication from 1 July 2021.
  1. [42]
    As to the second purpose, I note the caution stated in Wardley Australia Limited v Western Australia (1992) 175 CLR 514 at 533, with respect to the undesirability of limitation questions being decided in interlocutory proceedings in advance of the hearing of the action except in the clearest of cases. It is also worth noting – and it is important to note – that this is not a case where the proceedings were on foot when the Amending Act came into effect, so there is no complication here about whether or not the Act operates retrospectively in respect of existing proceedings.
  1. [43]
    The proceedings were commenced after the amendments were introduced. I consider that the language of the Limitation of Actions Act to be clear and that this is one of those cases where, to the extent I discuss shortly, summary judgment based on the limitation point is appropriate.

Proportionality

Contentions

  1. [44]
    In essence, the ABC asserts that the proceeding should be stayed (or dismissed) because:
  1. (a)
    The only actionable period in this matter is 28, 29 and 30 June 2021.
  1. (b)
    There were only two publications in that period.
  1. (c)
    The first download was for less than 10 seconds for a IP address for a user in Brisbane.
  1. (d)
    The limited duration of the first download is such that it can be assumed (it is asserted) that the Article was not read.
  1. (e)
    The second download was for almost two minutes for an IP address for a user in Sydney.
  1. (f)
    Both downloads were to unknown person(s) – other than the second being to someone connected to the airline.
  1. (g)
    The Second download was to a person in a different jurisdiction to where Mr McVicker resides and where (it is asserted) it can be assumed to be where he has a reputation.
  1. (h)
    In the circumstances, there was a very limited publication.
  1. (i)
    Any damages Mr McVicker may recover will be nominal.
  1. (j)
    The costs of the proceeding will be out of proportion to the nominal award for damages Mr McVicker may be awarded.
  1. (k)
    The proceedings are not proportionate.
  1. [45]
    Mr McVicker contends (in effect) that:
  1. (a)
    the proportionality principle has no application because the evidence is that as a matter of fact there were multiple downloads from 29 June 2021 and continuing thereafter. For the reasons I have identified earlier in these reasons in relation to the relevant limitation period, I reject Mr McVicker’s contention that he is entitled to rely on any downloads that occurred outside of the period 28, 29 and 30 June 2021.
  1. (b)
    It is too early to know what the likely damages are going to be.
  1. [46]
    In light of my prior findings with respect to the construction of the Limitation of Actions Act, I agree with the ABC that the actionable period is only 28, 29 and 30 June 2021 and that Mr McVicker is not entitled to rely on downloads outside those three-day periods.

Preliminary view: no full argument

  1. [47]
    Does the power to dismiss a proceeding exist in Queensland on the basis of the proportionality principle?
  1. [48]
    I note that the Court of Appeal in Watney v Kencian[12] declined to decide whether the proportionality principle (which the Court of Appeal described as the Jameel principle) in circumstances where there had not been full argument before it in relation to those legislative differences.[13]
  1. [49]
    Here, to be fair to counsel, there were submissions made that go to those differences; however, I do not think it is fair to describe the arguments as being full argument of the kind that one would want before determining, in a definitive way, whether or not the proportionality principle applies in Queensland. It would involve a very detailed analysis of the differences in legislative provisions. Now, the answer to that might well be that the reason for that is here in Queensland, the only rule or the only power that could be expressly identified by the ABC is rule 5, and I will turn to that shortly.
  1. [50]
    I do however indicate that my preliminary view is that it does not apply in Queensland and that I lean towards agreeing with the analysis of McGill SC DCJ in Smith v Lucht[14] including his Honours comments about the absence of an express power (compared to other jurisdictions) and costs consequences.
  1. [51]
    I have already indicated that the ABC has pointed to rule 5 of the UCPR and contends that it is of similar effect to section 60 of the Civil Procedure Act 2005 (NSW). “Similar effect” in the sense that the language is broad enough I think is a fair way to describe the submission. I do not accept that proposition for a number of reasons.
  1. (a)
    First, s 60 of the Civil Procedure Act 2005 (NSW) (Civil Procedure Act NSW) expressly refers to proceedings being implemented in such a way that the cost to the parties is proportionate to the importance and complexity of the subject matter in dispute. I do not consider rule 5 of the UCPR to go that far.
  1. (b)
    Second, there is no analogue to section 60 of the Civil Procedure Act NSW in the UCPR, the District Court of Queensland Act 1967 (Qld) or the Civil Proceedings Act 2011 (Qld). I do not accept the ABC’s contention that the language in rule 5 is so broad as to enliven a power to stay a proceeding as an abuse of process based on proportionality. The ABC emphasises the use of the words “undue expense;” however, the language in rule 5, to my mind, is directed to how a party is to conduct proceedings that are on foot rather than dealing with when a proceeding may be an abuse of process and ought to be permanently stayed.
  1. [52]
    I also note that s 25 of the Human Rights Act 2019 (Qld) expressly provides that a person has the right not to have their reputation unlawfully attacked. I have not been addressed about that provision or how it affects the proportionality contentions, if at all, and I make no findings about that, which is why I do not think it matters that I have not raised it, but that goes, really, to that issue about fulsome assessment of the different statutory provisions and the way everything hangs together. I also note that the Human Rights Act postdates the decision of Smith v Lucht.
  1. If there is power: to be rarely exercised
  1. [53]
    I turn now to consider whether, if I am wrong – and the proportionality principle does exist as a mechanism to dismiss a proceeding as an abuse of process – whether I would exercise that discretion.
  1. [54]
    Noting that every case falls to be determined on its own facts, it seems that the decisions I have been referred where the proportionality principle applied or considered:
  1. (a)
    involved something more than simply a proposition that the amount sued for is a small or nominal amount and disproportionate to the time, costs and resources needed to run the matter;
  1. (b)
    included statements of how rare the power was to be exercised.
  1. [55]
    For example, in Bleyer v Google Inc,[15] a strong consideration in assessing whether the exercise of the discretion to stay the action on the grounds of proportionality was that the plaintiff would be unable to enforce any judgment against Google. There is no such suggestion in the matter before me.
  1. [56]
    In Jameel v Dow Jones & Co Inc[16] the claimed was not pursuing any claim to more than nominal compensation and limited his relief to an injunction and vindication. The stay (in a jurisdiction where there is express power to do so) was granted.
  1. [57]
    In the matter before me, Mr McVicker is seeking an award of damages that cannot be fairly described as nominal. For reasons I will expand on later, it is inappropriate for me to decide in this application that any damages awarded to Mr McVicker will be nominal.
  1. [58]
    In Bleyer v Google Inc McCallum J noted that:
  1. (a)
    it goes without saying the cases in which a stay would be granted on the basis of disproportionality will be rare;
  1. (b)
    that the primary function of a court is to determine cases properly brought before it according to law and the merits of the case.[17]
  1. (c)
    the value of the interest at stake will at least in some instances have to be assessed having regard to broader considerations and the sum of money involved.[18]
  1. [59]
    The Court of Appeal of New South Wales, in Rock v Henderson noted:
  1. “… There are of course costs consequences for bringing small claims in jurisdictions which they do not warrant. However, the proposition that a plaintiff may be denied a hearing merely because the claim is small and the costs of prosecuting (and more particularly, defending) it disproportionate, is a troubling one…”[19]
  1. [60]
    To a similar effect, the New South Wales Court of Appeal in Ghosh v NineMSN Pty Ltd:
  1. “… that dismissal of proceedings simply upon the basis of a lack of proportionality, without the presence of further factors in favouring the result, is likely to be justified only rarely.”[20]
  1. [61]
    In Ghosh, the proceedings were found to be an abuse of process on the more conventional basis that the plaintiff had shown a continuing disregard of the obligation too conduct litigation, not only with the rules of court, but with basic courtesies.[21]
  1. [62]
    Finally, in Baker v Dubickas[22] Sheridan DCJ of this Court:
  1. (a)
    did not finally decide whether or not the power existed and took the same approach as the Court of Appeal in Watney. Her Honour indicated that if it had been necessary to finally decide, Her Honour would not necessarily have reached the same conclusions as McGill SC DCJ had in Smith v Lucht;[23]
  1. (b)
    concluded that if the power existed, Her Honour would not exercise the power;[24]
  1. (c)
    noted the seriousness of the allegations made by the defendants;[25]
  1. (d)
    stated that whilst the quantum of any award may be modest, vindication is not wholly measured or achieved in financial terms.[26]
  1. If there is power: conclusion
  1. [63]
    Assuming that there is power to stay based on proportionality, I would decline to exercise the power. There is no evidence before me today as to whom Mr McVicker is, his status, reputation, qualifications, business dealings or profession. There is no evidence as to what, if any, impact the publication had on him. What, if any, damage to his reputation was suffered as a consequence of the publication is unknown.
  1. [64]
    Now, it has to be remembered that today is an application brought by the ABC against the plaintiff and the onus is really on the ABC, so I do not hold the absence of those matters of evidence against the plaintiff, at least not in the context of this application. That may well change as the proceeding progresses and it certainly would be a problem at the trial if there was no evidence about any of those matters.
  1. [65]
    It may well be that whilst publication was limited (in terms of time and to whom it was published):
  1. (a)
    the imputations may be found to be those Mr McVicker pleads;
  1. (b)
    Mr McVicker may prove that the Article reflected adversely upon his reputation personally and professionally.
  1. (c)
    The Court may ultimately find that Mr McVicker’s reputational interests are neither trivial nor inconsequential and even the limited publication may justify an award that is something more than nominal.
  1. [66]
    I am unable to form a view that any damages awarded will be nominal.
  1. [67]
    I am not prepared to exercise any such power on the basis that Mr McVicker has other proceedings on foot against other parties which may possibly decrease any award he is given in those proceedings. I know nothing beyond the existence of those proceedings. I am not in a position to form a view about what, if any, impact the other proceedings will or will likely have on the outcome of this proceedings, whether or not those proceedings are successful and it may be that the other proceedings do provide vindication to Mr McVicker but today, I am not in a position to find that that would be so.
  1. [68]
    Even if an award for damages would be nominal, the alleged imputations are not of the most serious kind. They do not, for example, assert that Mr McVicker killed somebody but they are serious in a business reputational sense or at least potentially so and whilst the quantum of any award may be modest, vindication is not wholly measured in financial terms. And the plaintiff also seeks an injunction. Now, maybe that injunction is ultimately granted. An article is still on the website. No one has gone so far today to contend that injunction will not or cannot be ordered in the circumstances of this case, although the defendant does point out, I think, in a very forceful and appropriate way, that it is unlikely that an injunction will be ordered because of the extent to which the article has been amended but does not go so far as to assert that the injunction would not or could not be ordered and that is ultimately a matter for the trial, rather than today to make a decision about the likelihood of an injunction being ordered.
  1. [69]
    Accordingly, I, would not exercise the discretion, if I had one, to stay the proceeding on the basis the proportionality principle.
  1. Triviality and serious harm
  1. [70]
    Because of the date range of the publication as I have found, the Defence of triviality is still open to the Defendant. It is a matter for the trial whether or not that Defence will ultimately be made out. I am not in a position today, in the context of the applications before me and the evidence before me, to form a view as to whether or not the Defence will succeed or even whether it has such strong prospects as to compel the result urged by the ABC in this application.
  1. [71]
    Given my findings about the period of the publication being limited to those three dates, I do not understand there to be a point taken by ABC that it is on the Plaintiff to plead serious harm. That would only be necessary for publications after 1 July 2021.
  1. [72]
    Of course, if I am wrong about that, then it might be that any further pleading would need to deal with that question. So for those reasons, I dismiss the application to stay the proceeding on the basis of the proportionality principle, whether it be in the context of an abuse of process or a summary judgment application.
  1. Summary judgment
  1. [73]
    There is a summary judgment application that has been brought.
  1. [74]
    The relevant power in the context of the Defendant making the application is rule 293 of the UCPR, and the test is that a Court must be satisfied that the Plaintiff has no real prospects of succeeding on all or part of the Plaintiff’s claim and that there is no need for a trial of the claim or part of the claim.
  1. [75]
    In Smits v Cugola,[27] the Queensland Court of Appeal endorsed the following remarks of Jackson J with respect to the operation of r 293:
  1. Both [of the applications for summary judgment under rr 292 and 293 of the UCPR] raise for consideration whether the opposite parties or party has a real prospect of succeeding on the defence or claim or part thereof. The principles as to the correct approach on such applications are not contentious and are stated, for example, in Coldham-Fussell v Commissioner of Taxation (2011) 82 ASCR 439 at 465-468, [97]-[102].
  1. I bear also in mind that there are a number of arguments in the present case that engage the operation of relevant limitation provisions and whether a claim for a cause of action or equitable right has been brought after expiry of the relevant limitation period. In Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 at 533, it was said that it is undesirable that limitation questions of the kind under consideration in that case should be decided in interlocutory proceedings in advance of the hearing of the action except in the clearest of cases. However, that statement does not negate the statutory provision in r 293 of the UCPR, or the principle that in considering a summary judgment application “[a]rgument, perhaps even of an extensive kind, may be necessary to demonstrate that the case of the plaintiff or defendant is so clearly untenable that it cannot possibly succeed”, as stated in General Steel Industries Inc v Commissioner for Railways (NSW) & Ors (1964) 112 CLR 125 at 130.”
  1. [76]
    Further, in Gray v Morris,[28] it was confirmed that the power conferred upon the Court by r 293 is not one that ought to be exercised where there exists a real issue of law or fact:
  1. … in the application of the plain words of rr 292 and 293, and in particular the consideration of whether there is a need for a trial, a court must keep in mind why the interests of justice usually require the issues to be investigated at a trial. In my view it surely remains the case, as Mason, Murphy, Wilson, Deane and Dawson JJ said in [Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87] at 99, that “The power to order summary or final judgment is one that should be exercised with great care and should never be exercised unless it is clear that there is no real question to be tried”. That remains a forceful and authoritative guidance and is in no way in tension with the application of these rules according to their own terms.[29]
  1. [77]
    Now, here, the ABC properly concedes that for the dates 28, 29 and 30 June 2021, there is arguably a publication that might amount to defamation, that is within the monetary limit, and that the Plaintiff might be awarded a sum of money.
  1. [78]
    So even if that sum of money is nominal, that does not satisfy the requirements of rule 293; however, I think it is clear that to the extent the Plaintiff had pleaded or indicated in its pleading that it sought to pursue a cause of action from 1 July 2021, for the reasons I have indicated, that is out of time. So to that extent, the ABC’s application for summary judgment succeeds.
  1. Strike out application
  1. [79]
    Turning, now, to the strikeout application, dealing with each of the paragraphs in turn.
  1. Paragraph 3A
  1. [80]
    Here, the complaint is that the words quoted are in relation to the article as it was available in the period after amendments were made to it on 14 September 2021, as opposed to what was published on 5 January 2019, which is what is pleaded in paragraph 3 as being the Article.
  1. [81]
    The complaint is that paragraph 3A should recite the Article as published on or about 5 January 2019.
  1. [82]
    I find that that complaint has been properly made and as indicated in the discussion with counsel during the course of argument, I will give leave to the Plaintiff to make any necessary amendments that counsel considers ought to be made.
  1. Paragraph 13A
  1. [83]
    The complaint is in relation to the total unparticularised allegation of economic loss in a sum of $250,000. The complaint is well made and it is entirely inadequate for the plaintiff to simply assert that an expert report will be provided within 28 days of the outcome of the application.
  1. [84]
    The plaintiff, at the very least, should identify the nature of the economic loss that he asserts he has suffered. These are material facts that he should know if he is making a claim for economic loss. The calculation of such loss is something that the plaintiff also ought to be in a position to provide now (accepting of course that an expert report may refine the claim for economic loss and quantum, and how it is calculated).
  1. [85]
    In Courtney v Pinnacle Media Group Ltd & Ors,[30] Martin J said:
  1. [the plaintiff] claims nearly $5 million in damages for economic loss but has failed to provide any particulars of that claim. He has not pleaded any fact or circumstance upon which he could rely or, indeed, any causal connection between his inability to find employment… and the alleged publication of the two articles in this State.[31]
  1. [86]
    Whilst not precisely the same type of defects, they are within the same category of defects, so I accept the complaint made by the Defendant and again, as indicated, I will give leave to the Plaintiff to make any amendments it considers necessary.
  1. Paragraph 14
  1. [87]
    As to paragraph 14, counsel for the Defendant accepted that it requires particulars. Accordingly, it is not necessary for me to say anything further at this moment.
  1. Paragraph 6
  1. [88]
    Taking a step back, as to paragraph 6, Ms Barnett noted that but for the other complaints, the ABC probably would not have pressed a complaint about paragraph 6 but given other complaints were made, it did.
  1. [89]
    As I understand the complaint, it is that proper particulars are not included about the parts of the article which are relied upon in respect of each of the respective imputations. I can understand why a Defendant would want that identified to avoid difficulties moving on, so it is a complaint that I think is properly made and as with the others, I give leave to the Plaintiff to make amendments.
  1. [90]
    I am not going to strike out the prayer for relief. It may well be that following amendments to the pleading that certain things are amended but I think that really depends on how the earlier parts of the pleading are dealt with.
  1. [91]
    As to the error with respect to the residential address, that is a technical error and one that the Plaintiff ought to rectify but again, it is one of those complaints that were thrown into the mix in the context of other more serious complaints.
  1. [92]
    Accordingly, the orders I make are as follows:
  1. (a)
    Pages 3-9 of exhibit 1 of the affidavit of Nicole Neal, sworn 19 June 2023, stand as the pleadings, being the further amended statement of claim.
  1. (b)
    Summary judgment is granted to dismiss any claim for defamation from 1 July 2021.
  1. (c)
    The summary judgment application is otherwise dismissed.
  1. (d)
    The defendant have leave to amend the application to include an application for a permanent stay on the basis of an abuse of process.
  1. (e)
    The application for a stay of the proceedings as an abuse of process is dismissed.
  1. (f)
    The application to strikeout paragraphs 3A, 6, 13A and 14 of the further amended statement of claim is granted.
  1. (g)
    The plaintiff have leave to amend paragraphs 3A, 6, 13A and 14 of the further amended statement of claim.
  1. (h)
    The plaintiff is to file and serve the second further amended statement of claim by 19 September 2023.
  1. (i)
    The defendant is to file and serve any amended defence by 17 October 2023.
  1. (j)
    The plaintiff is to file and serve any reply by 31 October 2023.
  1. (k)
    The proceeding be listed for further review before Judge Andreatidis KC at 9:30am on 3 November 2023.
  1. (l)
    The defendant pay the plaintiff’s costs in respect of the appearance on 19 June 2023 on the standard basis. Otherwise order that the plaintiff pay the defendant’s costs of an incidental to the application, but 50% of those costs.

Footnotes

[1]Section 10AB of the Limitations of Actions Act 1974 (Qld) which was inserted by the Amending Act.

[2]Section 10AA of the Limitations of Actions Act 1974 (Qld) which inserted by the Amending Act.

[3]Section 10AA(4) of the Limitations of Actions Act 1974 (Qld) which inserted by the Amending Act.

[4]Section 33 of the Defamation Act 2005 (Qld).

[5]Section 10A of the Defamation Act 2005 (Qld) which was inserted by the Amending Act.

[6]Neal/exhibit NN-1 (E-courts 8).

[7]Defined in section 10AB(6) in the same terms as the definition in section 10AA(4).

[8]Dow Jones & Company Inc v Gutnick (2002) 2010 CLR 575, 26, 44.

[9]Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70; Ingram v Ingram [2022] NSWDC 653.

[10](2002) 210 CLR 575.

[11]Subject to a question of whether the subsequent publication was materially different – not relevant here.

[12](2018) 1 Qd R 407.

[13]At 61.

[14][2014] QDC 302.

[15](2014) 88 NSWLR 67, 94.

[16][2005] QB 946.

[17]At 63.

[18]At 63.

[19][2021] NSWCA 155 [45] (Bretton JA with whom Bell P agreed).

[20](2015) 90 NSWLR 595 [44] Macfarlane JA with whom Leeming JA and Adamson J agreed).

[21][2].

[22][2021] QDC 198.

[23][128].

[24][132].

[25][130].

[26][131].

[27][2022] QCA 262 [11] (Mullins and Bond JJA, Henry J), quoting Smits v Cogula [2021] QSC 164 [89]-[90].

[28]Gray v Morris [2002] 2 Qd R 118.

[29]Ibid 133 [46] (P McMurdo J, with whom McPherson JA agreed).

[30][2021] QSC 91.

[31]Ibid [42].

Close

Editorial Notes

  • Published Case Name:

    McVicker v Australian Broadcasting Corporation

  • Shortened Case Name:

    McVicker v Australian Broadcasting Corporation

  • MNC:

    [2023] QDC 167

  • Court:

    QDC

  • Judge(s):

    Andreatidis KC DCJ

  • Date:

    22 Aug 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Baker v Dubickas [2021] QDC 198
2 citations
Jump To
Cite 1 - [2021] QDC 198
Cite 2 - [2021] QDC 198
Bleyer v Google Inc (2014) 88 NSWLR 670
1 citation
Jump To
Cite 1 - (2014) 88 NSWLR 670
Coldham-Fussell v Commissioner of Taxation (2011) 82 ASCR 439
1 citation
Jump To
Cite 1 - (2011) 82 ASCR 439
Courtney v Pinnacle Media Group Ltd [2021] QSC 91
2 citations
Jump To
Cite 1 - [2021] QSC 91
Cite 2 - [2021] QSC 91
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
2 citations
Jump To
Cite 1 - (2002) 210 CLR 575
Cite 2 - (2002) 210 CLR 575
Dow Jones & Co v Gutnick [2002] 2010 CLR 575
1 citation
Jump To
Cite 1 - [2002] 2010 CLR 575
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
1 citation
Jump To
Cite 1 - (1964) 112 CLR 125
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595
2 citations
Jump To
Cite 1 - (2015) 90 NSWLR 595
Cite 2 - (2015) 90 NSWLR 595
Gray v Morris[2004] 2 Qd R 118; [2004] QCA 5
1 citation
Jump To
Cite 1 - [2004] 2 Qd R 118
Ingram v Ingram [2022] NSWDC 653
2 citations
Jump To
Cite 1 - [2022] NSWDC 653
Cite 2 - [2022] NSWDC 653
Isaac v TCN Channel Nine Pty Ltd [2023] VSC 70
2 citations
Jump To
Cite 1 - [2023] VSC 70
Cite 2 - [2023] VSC 70
Jameel v Dow Jones & Co Inc [2005] QB 946
2 citations
Jump To
Cite 1 - [2005] QB 946
Cite 2 - [2005] QB 946
Rock v Henderson [2021] NSWCA 155
2 citations
Jump To
Cite 1 - [2021] NSWCA 155
Cite 2 - [2021] NSWCA 155
Smith v Lucht [2014] QDC 302
2 citations
Jump To
Cite 1 - [2014] QDC 302
Cite 2 - [2014] QDC 302
Smits v Cugola(2021) 8 QR 175; [2021] QSC 164
1 citation
Jump To
Cite 1 - [2021] QSC 164
Smits v Cugola [2022] QCA 262
2 citations
Jump To
Cite 1 - [2022] QCA 262
Cite 2 - [2022] QCA 262
Wardley Australia Ltd v Western Australia (1992) 175 CLR 514
3 citations
Jump To
Cite 1 - (1992) 175 CLR 514
Cite 2 - (1992) 175 CLR 514
Cite 3 - (1992) 175 CLR 514
Watney v Kencian[2018] 1 Qd R 407; [2017] QCA 116
2 citations
Jump To
Cite 1 - [2018] 1 Qd R 407
Cite 2 - [2018] 1 Qd R 407

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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