Azshion v Nova Entertainment Pty Ltd
[2020] NSWSC 1833
•15 December 2020
Supreme Court
New South Wales
Medium Neutral Citation: Azshion v Nova Entertainment Pty Ltd [2020] NSWSC 1833 Hearing dates: 15 December 2020 Date of orders: 15 December 2020 Decision date: 15 December 2020 Jurisdiction: Common Law Before: Sackar J Decision: Proceedings dismissed
Catchwords: CIVIL PROCEDURE — Summary disposal — Dismissal of proceedings — No reasonable cause of action disclosed — Where alleged defamatory statements cannot reasonably give rise to defamatory imputations against the plaintiff — Where no particulars of identification provided — Where Uniform Civil Procedures Rules which govern pleading in defamation cases not complied with
Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) rr 13.4, 14.28
Cases Cited: Wecker v Davison [2020] NSWCA 264
Texts Cited: n/a
Category: Principal judgment Parties: Craig Azshion (plaintiff)
Nova Entertainment Pty Ltd (defendant)Representation: Solicitors:
Self represented (plaintiff)
Maddocks lawyers (defendant)
File Number(s): 2020/182502 Publication restriction: n/a
Judgment – ex tempore
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On 24 August this year Mr Azshion filed in Court an amended statement of claim purporting to make claims for aggravated damages in defamation in relation to three publications which occurred on 15 September 2017, 5 March 2020 and 7 March 2020, respectively. Each publication was said to have occurred during a Coles Radio broadcast at Coles Caringbah. I will return to the publications.
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The defendant, on 12 November this year, moved the Court for orders either that pursuant to rule 13.4 of the Uniform Civil Procedure Rules that the proceedings be dismissed, or, in the alternative, pursuant to rule 14.28 that the whole of the proceedings be struck out.
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The bases for the notice of motion which are put in support of it are numerous. First, it is submitted that the particular publications could not either be defamatory or, alternatively, they are impermissibly pleaded. There are no particulars of identification and other matters which are adverted to have been addressed by Ms Wendon for the defendant in oral submissions this morning.
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In addition, however, it is submitted that, as a result of the evidentiary materials adduced in the affidavit of Mr Willis of 13 November 2020, there is in fact no factual basis upon which the plaintiff could succeed as the publications did not occur or there is no evidence they did and the relief sought in the notice of motion should be granted.
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Mr Azshion has responded with a detailed written outline in which he goes to some lengths to articulate the basis or bases upon which he says his claims are properly founded, and he says that if I have any doubt about the viability or arguability of his claims I should let them proceed.
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The authorities in this area are clear. In order successfully to move under either provision of either rule, there is a high bar, and an applicant either has to show that it is plain and obvious that there is no case, or that it is hopeless or unarguable, or potentially that the current pleading is untenable by reason of failure to provide proper particulars as required. In my view, for any number of reasons these causes of action are hopeless, and it is plain and obvious that they cannot possibly succeed for any number of reasons.
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First of all, each of the publications which are relied upon are cryptic in the extreme. The first and only line which is relied upon in relation to the 15 September 2017 publication is, "Now that Craig is better". There is no imputation pleaded which in my view is comprehensible or rational.
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Merely to assert that someone is better may imply that they were once unwell. Even assuming that is correct, I cannot understand how that can reasonably convey an imputation which is defamatory of the plaintiff. To simply say that someone has been unwell and has recovered, in my view, is an utterly benign statement to make, and for that reason that cause of action is untenable.
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Apart from any other proposition, the publication of 15 September 2017 is out of time. A recent decision of the New South Wales Court of Appeal in Wecker v Davison [2020] NSWCA 264 makes that abundantly plain. In my view that matter is untenable and I do not consider that it can stand as a viable cause of action.
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The next publication of 5 February 2020, again, is cryptic. It relies upon the statement, “You're our lie". There are no particulars of identification, there is no way of knowing, even if that statement was published at the relevant time, how it relates to Mr Azshion. More to the point, again, I do not understand how it could reasonably give rise to any imputation which is defamatory of him.
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The same applies to the publication on 7 March 2020, "Craig's botched wear", and, "His underwear". Again there are no particulars of identification, but, in, any event, they are benign statements devoid of context and they simply cannot, in my view, reasonably give rise to any imputation defamatory of the plaintiff.
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To say that the rules of court in this case have been ignored is an understatement. The rules which govern the pleading of defamation cases in this Court make very plain what the obligation of the plaintiff in such proceedings is to do. None of those rules have been applied in this case.
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In my view, not only are the claims incomprehensible, they are unfortunately, irrational, and they cannot possibly succeed and, I propose to provide the relief in accordance with the notice of motion and that is paragraph 1.
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I therefore make an order pursuant to rule 13.4(1)(b) that the whole of the proceedings be dismissed.
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I should say as a postscript that the materials in the affidavit of Mr Willis, which is unchallenged, provides an additional basis, in my view, for finding that the case is utterly hopeless and should therefore be stopped in its tracks.
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I order that Mr Azshion pay the costs of this motion. I will make orders accordingly.
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Decision last updated: 16 December 2020
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