Al-Shennag v Statewide Roads Pty Ltd - [2010] NSWSC 1412

CITATION: Al-Shennag v Statewide Roads Pty Limited & Anor [2010] NSWSC 1412

HEARING DATE(S): 23 September 2010

JUDGMENT DATE :
8 December 2010

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. The plaintiff’s amended notice of motion filed 23 September 2010 is dismissed.
2. The plaintiff is to pay the defendant’s costs of the application.

CATCHWORDS: Practice & procedure - application by self-represented litigant to have defences struck out in defamation action - application misconceived - no matter of principle

LEGISLATION CITED: Defamation Act 1974
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Adam v Ward [1917] AC 309
Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472
Al-Shennag v Statewide Roads Ltd [2010] NSWSC 366
Al-Shennag v Statewide Roads Ltd [2010] NSWSC
760
Bennette v Cohen [2009] NSWCA 60
Day v Victorian Railway Commissioners (1949) 78 CLR 62
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364
Megna v Marshall [2010] NSWSC 686
Roberts v Bass (2002) 212 CLR 1
Spencer v Commonwealth of Australia [2010] HCA 28

PARTIES: Abdullah Al-Shennag (Plaintiff)
Bill Woodcock (2nd Defendant)

FILE NUMBER(S): SC 05/269387

COUNSEL: In person (Plaintiff)
M. S. White (2nd Defendant)

SOLICITORS: Norton Rose (2nd Defendant)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

8 DECEMBER 2010

2005/269387 ABDULLAH AL-SHENNAG v STATEWIDE ROADS LIMITED & ANOR

JUDGMENT

1 McCALLUM J: These are proceedings for defamation brought by Mr Abdullah Al-Shennag, an engineer formerly employed by Bankstown City Council. Some of the history of the proceedings is set out in my earlier judgments in Al-Shennag v Statewide Roads Ltd [2010] NSWSC 366 and Al-Shennag v Statewide Roads Ltd [2010] NSWSC 760.

2 The matter complained of is a report commissioned by the Council to assess the validity of conditions placed by Mr Al-Shennag on three separate development applications that had been lodged with the Council. The report concluded that the matters analysed disclosed a series of mistakes and errors on the part of Mr Al-Shennag underlined by poor engineering judgment.

3 The only remaining defendant to the proceedings is the author of the report, Mr Bill Woodcock. In 2007, Walmsley AJ found that Mr Woodcock’s report conveyed five imputations defamatory of Mr Al-Shennag: see Al-Shennag v Statewide Roads Limited [2007] NSWSC 1472. It remains for the Court to determine the defences raised by Mr Woodcock to those imputations and the amount of damages (if any) that should be awarded to Mr Al-Shennag: see s 7A(4) of the Defamation Act 1974 (now repealed).

4 The defences raised by Mr Woodcock are the defence of qualified privilege at common law and under s 22 of the Defamation Act 1974 (NSW) and the defence of consent (paragraphs 16 and 17 of the defence filed 12 November 2009). By paragraph 18 of the defence, Mr Woodcock has also pleaded the defence of unlikelihood of harm but…

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] NSWSC 1412
Decision Date: 8 December 2010

CaseChat Overview and Summary

In the matter of Al-Shennag v Statewide Roads Pty Ltd, the dispute arose from an allegation of defamation against Statewide Roads, with Al-Shennag acting as a self-represented litigant. The case was before the Supreme Court of New South Wales, where Al-Shennag sought an order to strike out certain defences put forward by Statewide Roads in response to the defamation claim. The key issue before the court was whether the application by Al-Shennag to have the defences struck out was misconceived and whether the application raised a matter of principle warranting judicial attention.

The court found that the application by Al-Shennag to have the defences struck out was indeed misconceived. The court held that such an application was not an appropriate means for a litigant to challenge the validity of defences. Instead, the proper avenue for addressing the merits of the defences was through the regular process of pleadings and trial. The court further determined that the application did not present a matter of principle that required judicial intervention, as it was merely a procedural misstep rather than a substantive legal issue. Consequently, the court dismissed the application and emphasised that self-represented litigants must still adhere to the established rules and procedures of the court.

The court's decision underscored the importance of adhering to proper legal procedures, even for self-represented litigants. It highlighted that applications to strike out defences were not a substitute for the regular process of pleadings and trial, and that such applications should not be used to circumvent established legal processes. The court's dismissal of the application served as a reminder that all litigants, regardless of representation, must comply with the rules and procedures of the court.

Orders