Hewson v TCN Channel Nine Pty Ltd [2021] FCA 389

Hewson v TCN Channel Nine Pty Ltd [2021] FCA 389

Leave to amend the defence was justified because the amendments were fairly minor, would not prejudice Dr Hewson, and would assist the adjudication of the real issues, notwithstanding some unexplained delay. The subpoena was valid only in part: although Dr Hewson's aggravated damages claim put the truth or falsity of the imputations in issue, only documents going to whether GSA made the refusal decision or whether GSA or Dr Hewson knew of information indicating storm rather than flood damage had apparent relevance. Paragraphs directed to GSA's recommendation or consideration of insurance with a flood exclusion, broad responses to the broadcast, the hydrologist report preparation, or broad...

Jurisdiction
Australia
Judgment Date
18 March 2021
Procedural Posture
Defamation Proceeding / Interlocutory Applications by the Respondents for Leave to Amend the Defence and by the Applicant and GSA Insurance Brokers Pty Ltd to Set Aside a Subpoena
Outcome
Respondents granted leave to amend the defence; subpoena to GSA Insurance Brokers Pty Ltd partly set aside; costs of the respondents' and applicant's interlocutory applications made costs in the cause; GSA's interlocutory application costs reserved.
Legal Topics
['amendment of Defence' 'subpoenas' 'legitimate Forensic Purpose' 'abuse of Process' 'honest Opinion' 'aggravated Damages' 'proper Material']
['practice and Procedure' 'defamation'] ['amendment of Defence' 'subpoenas' 'legitimate Forensic Purpose' 'abuse of Process' 'honest Opinion' 'aggravated Damages' 'proper Material']

Case Brief

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Procedural Posture

Defamation Proceeding / Interlocutory Applications by the Respondents for Leave to Amend the Defence and by the Applicant and GSA Insurance Brokers Pty Ltd to Set Aside a Subpoena

Legal Issues

  1. 1 ['Whether the respondents should be granted leave to amend their defence by altering particulars of the proper material relied on for the honest opinion defence.' 'Whether the subpoena issued to GSA Insurance Brokers Pty Ltd had a legitimate forensic purpose or was an abuse of process.' 'Whether the truth or falsity of the pleaded defamatory imputations was in issue because the applicant claimed aggravated damages based on knowledge of falsity.' 'Which paragraphs of the subpoena sought documents with apparent or adjectival relevance to issues raised on the pleadings.']

Ratio Decidendi

Leave to amend the defence was justified because the amendments were fairly minor, would not prejudice Dr Hewson, and would assist the adjudication of the real issues, notwithstanding some unexplained delay. The subpoena was valid only in part: although Dr Hewson's aggravated damages claim put the truth or falsity of the imputations in issue, only documents going to whether GSA made the refusal decision or whether GSA or Dr Hewson knew of information indicating storm rather than flood damage had apparent relevance. Paragraphs directed to GSA's recommendation or consideration of insurance with a flood exclusion, broad responses to the broadcast, the hydrologist report preparation, or broad...

Court Disposition

Respondents granted leave to amend the defence; subpoena to GSA Insurance Brokers Pty Ltd partly set aside; costs of the respondents' and applicant's interlocutory applications made costs in the cause; GSA's interlocutory application costs reserved.

Orders

  • ['The respondents be granted leave to file an amended defence in the form set out at Annexure A to the interlocutory application filed on 26 February 2021.' 'Paragraphs 3, 4, 5, 7, 9, 10, 11 and 12 of the subpoena, filed on 9 February 2021, issued and served on GSA Insurance Brokers Pty Ltd be set aside.' 'The costs...