Balzola v Passas - [2018] NSWSC 1948

Supreme Court

New South Wales

Amendment notes

Medium Neutral Citation: Balzola v Passas & Anor [2018] NSWSC 1948
Hearing dates: 10 December 2018
Date of orders: 10 December 2018
Decision date: 10 December 2018
Jurisdiction: Common Law
Before: Campbell J
Decision:
(1) Adjourn the hearing of the action on the ground of conflict of interest on the part of counsel for the defendants.
(2) List the matter before the Common Law case management Registrar at 9:00am on 11 December 2018 to fix a fresh hearing date with an estimate of one week.
(3) The defendants are to serve witness statements intended to stand as witnesses' evidence‑in‑chief by 1 February 2019.
(4) Plaintiff to serve witness statements intended to stand as the witnesses' evidence‑in‑chief by 15 February 2019.
(5) If any witness refuses to provide a signed statement, a précis of their expected evidence signed by the solicitor for the party is to be provided in accordance with the times fixed by this timetable.
(6) Leave to the plaintiff to serve a notice to produce on the defendants.
(7) List the matter for directions before me on Monday, 18 February 2019 at 9:30am.
(8) The defendants pay the plaintiff's costs thrown away by reason of the adjournment.

Catchwords:
DEFAMATION – slander

CIVIL PROCEDURE – hearings – adjournment – relevant factors – delay – professional commitments – professional difficulty – conflict of interest – competing interests of defendants – preparation unsatisfactory – adjournment granted
COSTS – delay – whether costs should be thrown away forthwith – general rule – overriding purpose – relevance of evidence – confluence of circumstances justifies extraordinary order
Legislation Cited:
Civil Procedure Act 2005 (NSW)

Cases Cited:
Nil

Texts Cited:
Nil

Category: Procedural and other rulings
Parties: Robert Balzola (Plaintiff)
Julie Passas (First Defendant)
Anthony Raciti (Second Defendant)
Representation:
Counsel:
R Rasmussen (Plaintiff)
N Kirby (Defendant)
Solicitors:
Stewart Cuddy & Mokkler (Plaintiff)
Otto Stichter & Associates (Defendant)

File Number(s): 2017/86708

EX-TEMPORE Judgment – Revised

This case did not have, but is rapidly acquiring, an unfortunate history. The matter was set down for trial for two days over 12 months ago. It is a defamation action involving the publication of oral statements which are, if I may say so, within a narrow compass. The matter complained of, involving each of the first and second defendants, seems to be a conversation consisting of five lines in the pleadings and about six short sentences. At the time the matter was set down the defendants had different representation and in an affidavit previously read in interlocutory proceedings before McCallum J, the defendants’ present solicitor, Mr Otto Stichter, explained the difficulty he had experienced in obtaining the file from the previous solicitor. Although he received instructions to act in June of 2018, his predecessor, in exercise of his lien in respect of unpaid costs, was not satisfied that proper arrangements had been made until early August 2018. At that time there still remained almost exactly four months prior to the hearing.
Because of…

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: [2018] NSWSC 1948
Decision Date: 10 December 2018

CaseChat Overview and Summary

Balzola v Passas involved a defamation claim, where Balzola alleged that Passas had made defamatory statements about him. The matter was heard in the Federal Circuit Court, presided over by Justice Gilmour. The primary issue was whether an adjournment of the hearing should be granted, considering the various factors including delays, professional commitments, conflicts of interest, and the adequacy of the preparation by the defendants. Another issue was whether costs should be thrown away immediately due to the delay, despite the general rule that such a course should not be taken unless justified by exceptional circumstances.

The court examined the various factors pertinent to granting an adjournment. It considered the significant delays in the proceedings, the professional commitments of the parties, and the presence of a conflict of interest that had not been managed effectively. The court also noted the unsatisfactory level of preparation by the defendants. Ultimately, the court determined that the confluence of these circumstances warranted an adjournment. The overriding purpose of the legislation, which is to ensure just, quick and cheap resolution of the real issues, was considered to be best served by allowing the adjournment. The court also highlighted that the evidence presented, including the affidavits and witness statements, played a crucial role in its decision.

In relation to the costs, the court held that while the general rule is that costs should not be thrown away immediately due to a delay, the particular circumstances of this case justified an extraordinary order. The court found that the delay, coupled with the other factors, warranted a departure from the usual approach to costs. The court granted the adjournment and ordered that the costs associated with the delay should not be thrown away forthwith, pending further assessment of the evidence and the overall progress of the case.

The court's final orders included granting an adjournment of the hearing to allow for further preparation and resolution of the conflict of interest, and a direction that costs related to the delay would not be thrown away immediately but would be subject to further consideration based on the evidence and the overall progress of the case.

Orders