Aleksandrov v Dimovski

Case [2005] NSWDC 19


District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19
Hearing dates: 28 January, 23 March, 5 April, 21 April, 30 June, 1 July, 8 July, 29 July, 12 August, 9 August and 26 August 2005
Date of orders: 09 December 2005
Decision date: 09 December 2005
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003.


(2) Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation.


(3) The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith.


(4) These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above.
(5) Liberty to apply.
(6) Exhibits retained 28 days.
(7) Defendants' Notice of Motion for dismissal to remain on foot pending further orders.

Legislation Cited: Broadcasting Act 1942 (NSW)
Civil Procedure Act 2005 (NSW), s 60
Defamation Act 1974 (NSW), s 7A
Defamation Act 2005 (NSW)
Evidence Act 1995 (NSW), s 138
Supreme Court Rules 1970 (NSW), Pt 37 r 10
Uniform Civil Procedure Rules 2005 (NSW), r 13.4(1)(c)
Cases Cited: BAT Australia Services Ltd v Cowell [2003] VSCA 43
Church of Scientology of California v Dept of Health and Social Security [1979] 1 WLR 723
Cummings v 2KY Broadcasters Pty Limited [1981] 1 NSWLR 246
Dow Jones & Company v Jameel [2005] EWCA Civ 75
Goldsmith v Sperrings Ltd [1977] 1 WLR 478
Hanrahan v Bluett (NSW Court of Appeal, 11 June 1985, unreported)
Home Office v Harman [1983] 1 AC 280
Jones v Sutton (2004) 61 NSWLR 614
Jones v Sutton (No 2) [2005] NSWCA 203
Kimberly Mineral Holdings Ltd (In liq) v McEwan [1980] 1 NSWLR 210
Lane v Registrar of the Supreme Court (Equity Division) (1981) 148 CLR 245
Mahon v Rahn [1998] QB 424
Mann v Medical Defence Union [1997] FCA 45
Medway v Doublelock Ltd [1978] 1 WLR 710
Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported)
R v Rondo [2001] NSWCCA 540
Rank Film Distributors Ltd v Video Information Centre [1982] AC 380
Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688
Riddick v Thames Board Mills Ltd [1977] QB 881
Scott v Jones & Anor [2003] NSWSC 169
Sea Culture International Pty Ltd v Scholes (1991) 32…

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AGLC
Aleksandrov v Dimovski [2005] NSWDC 19
Case
[2005] NSWDC 19
Decision Date

CaseChat Overview and Summary

The case of Aleksandrov v Dimovski involved the plaintiffs, who were seeking relief from an undertaking they had given in earlier proceedings. They also sought permission to use a particular tape recording for the purpose of commencing defamation proceedings. The defendants opposed the plaintiffs' applications and argued that the plaintiffs should not be allowed to use the tape recording for the proposed defamation proceedings. The matter was heard in the Supreme Court of New South Wales. The court had to decide whether to release the plaintiffs from the undertaking given in earlier proceedings, whether to grant leave to use the tape recording for the purpose of commencing defamation proceedings, and whether to order the plaintiffs to pay the defendants' costs.

The court found that the plaintiffs had not acted unreasonably in seeking to be released from the undertaking, and that it was appropriate to grant them leave to use the tape recording for the purpose of commencing defamation proceedings. However, the court also found that the plaintiffs should be required to pay the defendants' costs before being allowed to use the tape recording for the proposed defamation proceedings. The court considered the defendants' opposition to the plaintiffs' applications and found that it was appropriate to grant the plaintiffs leave to use the tape recording, but only on the condition that they paid the defendants' costs. The court also found that the proceedings should be stayed until the plaintiffs paid the defendants' costs.

In summary, the court granted the plaintiffs' applications but made them conditional on the plaintiffs paying the defendants' costs. The court found that the plaintiffs were not acting unreasonably in seeking to be released from the undertaking and that it was appropriate to grant them leave to use the tape recording for the purpose of commencing defamation proceedings. However, the court also found that the plaintiffs should be required to pay the defendants' costs before being allowed to use the tape recording for the proposed defamation proceedings. The proceedings were stayed until the plaintiffs paid the defendants' costs.

Orders

Orders of the court

(1) Release the plaintiffs in these proceedings and their instructing solicitors from the implied undertaking given by them in proceedings No. 2990 of 2003 in relation to a tape recording obtained by them under subpoena, being a broadcast of the Macedonian Language Program transmitted by 2NBC on 6 December 2003.

(2) Leave granted to the plaintiffs to use the said tape recording of the Macedonian Language Program, transmitted by 2NBC on 6 December 2003, together with a translation made by Tony Najdov (Schedule A to the Ordinary Statement of Claim in proceedings No. 5054 of 2004) for the purpose of commencing and conducting proceedings for defamation.

(3) The leave in Orders 1 and 2 above is conditional upon the plaintiffs paying the defendants' costs of the proceedings to date, including this Notice of Motion, on an indemnity basis, such costs to be assessed forthwith.

(4) These proceedings stayed until the plaintiffs pay the defendants' costs as per order 3 above.

(5) Liberty to apply.

(6) Exhibits retained 28 days.

(7) Defendants' Notice of Motion for dismissal to remain on foot pending further orders.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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