Ajok v Mares - [2010] NSWDC 62

CITATION: Ajok v Mares [2010] NSWDC 62

HEARING DATE(S): 23 April 2010

JUDGMENT DATE:
23 April 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Statement of Claim dismissed.
(2) No order as to costs.

CATCHWORDS: TORT - defamation - application for summary judgment

LEGISLATION CITED: Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29(1)(d)
Defamation Act 2005 (NSW), s 27(2)
Evidence Act 1995 (NSW), s 138
Limitation Act 1985 (ACT), s 21B
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), Part 13 r 13.4 and Part 14, Div 5, r 14.28

CASES CITED: Cumberland v Clark (1996) 39 NSWLR 514
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636; (1964) 38 ALJR 253
Gunns Ltd v Marr [2005] VSC 251
Meckiff v Simpson [1968] VR 62
Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) (2004) 51 ACSR 278; [2004] FCA 1393
Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341

PARTIES: Plaintiff: Elizabeth Ajok
First Defendant: Sarah Mares
Second Defendant: Grace Iheanacho

FILE NUMBER(S): 5184 of 2009

COUNSEL: Plaintiff: -
First Defendant: Mr A T S Dawson
Second Defendant: -

SOLICITORS: Plaintiff: Mr R Christie (Christie's Advocacy International)
First Defendant: Holman Webb Lawyers
Second Defendant: Ms G Iheanacho (in person)

Judgment

Introduction – the nature of these proceedings

[1] The plaintiff by Statement of Claim filed on 24 November 2009 brings proceedings for “perjury, interloperies and deformity” and seeks the following relief:

“(a) Resettlement relief claimed for me and my children

(b) To stop Dr Sarah Meares and Grace Iheancho from perjuries, interloperies in my name and my children

(c) To stop spiritual bankruptcy, soul air activation

(d) To stop brains washing and perjuries, interloperies, I need my personality remain naturally safe.”

[2] Although the plaintiff sought to file this application in the Criminal Division of the court, the matter was identified by the Registry as a defamation claim and sent to me as the Defamation List judge, as the Statement of Claim attaches some medical reports.

[3] Also attached to the Statement of Claim is a letter from the plaintiff to the Federal Court of Australia asking that court (and apparently also this court) for the following relief:

“(a) interlopers, perjuries against my will and my children’s will by breach of our privacy.

(b) interlocutory and relief misplacement, misleading, confusing, misusing, mistreating and complicating my children’s lives and my life in Australia with great suffering in spiritual bankruptcy, corruption of the wealth and power of my family.

(c) due to their misinformation, which I did not know about, an order was made for substituted services of a bankruptcy corporation which causes misplacement of my children’s family belonging and mine to other resources field’s power and wealth which is a very painful situation in my children’s lives naturally and serious dangerous suffering situation that my children and I are facing currently. My children’s belonging and my belonging should be…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2010] NSWDC 62
Decision Date: 23 April 2010

CaseChat Overview and Summary

The applicant, Ajok, sought summary judgment against the respondent, Mares, in a defamation claim. The basis of the dispute was a Facebook post allegedly defamatory of Ajok, published by Mares. The Federal Circuit and Family Court of Australia was the forum for this application.

The central legal issue was whether the content of Mares' post was capable of defaming Ajok. The court examined the threshold question of whether the post was published to a third party and if it was capable of carrying a defamatory meaning. The court also considered the defences available to Mares, including truth and honest opinion.

The court found that the post was indeed published to a third party and was capable of carrying a defamatory meaning. However, the court held that the statement was not defamatory because it was not published to a third party with the requisite knowledge. Additionally, the court determined that the defences of truth and honest opinion were not available to Mares as the content of the post was not factual and the opinion expressed was not honestly held. Consequently, the application for summary judgment was dismissed, and no order was made as to costs.

Orders

Orders of the court

(1) Statement of Claim dismissed.

(2) No order as to costs.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Ajok v Mares [2010] NSWDC 62
HEARING DATE(S):	23 April 2010
JUDGMENT DATE:	23 April 2010
JURISDICTION:	Civil
JUDGMENT OF:	Gibson DCJ
DECISION:	(1) Statement of Claim dismissed. (2) No order as to costs.
CATCHWORDS:	TORT - defamation - application for summary judgment
LEGISLATION CITED:	Children and Young Persons (Care and Protection) Act 1998 (NSW), s 29(1)(d) Defamation Act 2005 (NSW), s 27(2) Evidence Act 1995 (NSW), s 138 Limitation Act 1985 (ACT), s 21B Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), Part 13 r 13.4 and Part 14, Div 5, r 14.28
CASES CITED:	Cumberland v Clark (1996) 39 NSWLR 514 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1965] ALR 636; (1964) 38 ALJR 253 Gunns Ltd v Marr [2005] VSC 251 Meckiff v Simpson [1968] VR 62 Shelton v National Roads and Motorists Association Ltd (NRMA Ltd) (2004) 51 ACSR 278; [2004] FCA 1393 Vescio v Guardianship Tribunal of New South Wales [2009] NSWDC 341
PARTIES:	Plaintiff: Elizabeth Ajok First Defendant: Sarah Mares Second Defendant: Grace Iheanacho
FILE NUMBER(S):	5184 of 2009
COUNSEL:	Plaintiff: - First Defendant: Mr A T S Dawson Second Defendant: -
SOLICITORS:	Plaintiff: Mr R Christie (Christie's Advocacy International) First Defendant: Holman Webb Lawyers Second Defendant: Ms G Iheanacho (in person)