Liu v The Age Company Limited [2016] NSWCA 115

Liu v The Age Company Limited [2016] NSWCA 115

The primary judge's discretion miscarried in determining that Ms Liu had an effective remedy after Fairfax abandoned the qualified privilege defence, and in granting the stay application which permitted relitigation. The stay was set aside; preliminary discovery order restored. No special rule for costs applies to media respondents; costs follow the event. Indemnity costs not warranted as respondent's conduct was not plainly unreasonable.

Jurisdiction
Australia
Judgment Date
20 May 2016
Procedural Posture
Appeal / Judgment on Appeal and Cross Appeal
Outcome
Appeal allowed in part; cross-appeal dismissed
Legal Topics
['preliminary Discovery' 'costs' 'qualified Privilege' 'effective Remedy' 'case Management' 'newspaper Rule']
['civil Procedure' 'defamation' 'media Law'] ['preliminary Discovery' 'costs' 'qualified Privilege' 'effective Remedy' 'case Management' 'newspaper Rule']

Case Brief

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Procedural Posture

Appeal / Judgment on Appeal and Cross Appeal

Legal Issues

  1. 1 ['Whether the stay application constituted an abuse of process and should be refused for failure to put all arguments at the first hearing' 'Whether relitigation of the preliminary discovery order should be permitted absent material change or new evidence' "Whether Ms Liu had an effective remedy following the newspaper's undertaking to abandon qualified privilege defences" 'Whether the Civil Procedure Act 2005 (NSW) case management principles were properly applied in exercising discretion' 'Whether indemnity costs should have been awarded' 'Whether there exists a special costs rule for media respondents in preliminary discovery applications']

Ratio Decidendi

The primary judge's discretion miscarried in determining that Ms Liu had an effective remedy after Fairfax abandoned the qualified privilege defence, and in granting the stay application which permitted relitigation. The stay was set aside; preliminary discovery order restored. No special rule for costs applies to media respondents; costs follow the event. Indemnity costs not warranted as respondent's conduct was not plainly unreasonable.

Court Disposition

Appeal allowed in part; cross-appeal dismissed

Orders

  • ['Appellant granted leave to appeal' 'Appellant to file notice of appeal in draft form within fourteen days' 'Set aside stay order made on 23 March 2015 and continued on 22 May 2015' 'Cross-appellants granted leave to appeal' 'Cross-appellants to file notice of cross-appeal in draft form within fourteen days'...