Balzola v Passas - [2018] NSWSC 1724

Supreme Court

New South Wales

Medium Neutral Citation: Balzola v Passas [2018] NSWSC 1724
Hearing dates: 9 November 2018
Decision date: 12 November 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The application to file an amended defence is refused; the subpoena issued by the defendants to the NSW Police Service is set aside; defendants to pay the plaintiff’s costs of the applications

Catchwords:
CIVIL PROCEDURE – pleadings – application for leave to file an amended defence – where trial date fixed a year earlier – application brought late with little satisfactory explanation beyond the change of legal representation – weakness of proposed defences – risk of expanding hearing beyond current trial estimate
PROCEDURE – subpoenas – application to set aside subpoena – subpoena too broad or poorly framed
Legislation Cited: Civil Procedure Act 2005 (NSW), Part 6
Cases Cited: ICAP Australia Pty Limited v BGC Partners (Australia) Pty Limited [2009] NSWCA 307
Tabe v Amalgamated Television Services Pty Limited (1987) A Def R 50-025
Category: Procedural and other rulings
Parties: Robert Balzola (plaintiff)
Julie Passas (first defendant)
Anthony Raciti (second defendant)
Representation:
Counsel:
R Rasmussen (plaintiff)
B Dean (defendants)
Solicitors:
Robert Balzola & Associates (plaintiff)
Otto Stichter & Associates (defendants)

File Number(s): 2017/86708
Publication restriction: None

Judgment EX TEMPORE – REVISED

HER HONOUR: These are proceedings for defamation arising out of the alleged publication of oral statements in a restaurant at a meeting of a section of the Liberal party. Two applications were argued last Friday. The first was an application by the plaintiff brought by Notice of Motion filed 31 October 2018 to have a subpoena issued at the request of the defendants set aside. The second was an application by the defendants for leave to file an amended defence.
It is appropriate to deal with the application to set aside the subpoena first. For that purpose, it is necessary to identify the issues in the proceedings.
The remarks on which the plaintiff sues are pleaded in paragraph 1 of the Statement of Claim as follows:

“First defendant: 'He beats his wife. He has an AVO.’
Second defendant: 'It is true, I saw it in the paper, he has a criminal record.'
First defendant: 'Balzola is a criminal.’
First defendant: 'Thank god Balzola is here, he can pull swifties.'
Second defendant: 'Balzola beats his wife.’"

As observed by Mr Rasmussen, who appears for the plaintiff, the matter complained of consists of a collection of quotes; it seems unlikely that the conversation unfolded in those precise terms. However, the defendants have not taken any issue at the appropriate time as to the form of pleading of the publication and the present application must necessarily be determined by reference to the matter as pleaded.
The imputations pleaded by the plaintiff as arising from those remarks are:

“(a) The plaintiff is a criminal;

(b) The plaintiff has a criminal record;

(d) the plaintiff has an apprehended violence order against him;

(e1) the plaintiff can pull…

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 1724
Decision Date: 12 November 2018

CaseChat Overview and Summary

The parties involved in the matter of Balzola v Passas were Balzola, the plaintiff, and Passas, the defendant. The dispute centred around an application for leave to file an amended defence, brought by the defendant, and an application to set aside a subpoena, also brought by the defendant. The case was heard in the Federal Circuit Court of Australia. The primary issues the court needed to address were whether the defendant was entitled to file an amended defence, despite the significant delay and the lack of a satisfactory explanation, and whether the subpoena issued was too broad or poorly framed.

The court examined the delay in filing the amended defence and the lack of a satisfactory explanation for this delay. The defendant had brought the application for leave to amend the defence a year after the trial date had been fixed, with the only explanation being a change in legal representation. The court also considered the weakness of the proposed defences and the risk that allowing the amendment would expand the hearing beyond the current trial estimate. The court found that the delay was significant and the explanation insufficient, leading to the conclusion that the application for leave to amend the defence should be dismissed. Regarding the subpoena, the court determined that it was indeed too broad or poorly framed, leading to the decision to set it aside.

The court's reasoning and outcome were grounded in the principles of procedural fairness and the efficient management of court resources. The court emphasised the importance of timely and reasonable applications and the need to prevent unnecessary delays in proceedings. The court also highlighted the potential for prejudice to the plaintiff if the amendment was allowed, given the late stage of the proceedings and the lack of a compelling reason for the delay. The final orders of the court were that the defendant's application for leave to file an amended defence was dismissed and that the subpoena was set aside due to its broad or poorly framed nature.

Orders