Boros v Swann - [2014] NSWDC 227

District Court

New South Wales

Medium Neutral Citation: Boros v Swann [2014] NSWDC 227
Hearing dates: 23 October 2014
Decision date: 23 October 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) On the application of the plaintiff, who acknowledges any further action is out of time, these proceedings are discontinued.
(2) The plaintiff is to pay the costs of the defendant of these proceedings.

Catchwords: COSTS - Plaintiff brings proceedings for an oral statement which was "false and made maliciously" and "published further", and seeking declaratory relief - defendant brings an application to strike out the statement of claim, asserting failure to identify a cause of action, challenging jurisdiction for the relief sought, raising limitation and pleadings issues and seeking a transfer to the Sydney Defamation List - defendant's application for a transfer and a hearing of his challenges to the pleading refused - defendant ordered to file defence - defendant brings fresh application for transfer from the Parramatta registry which is granted - plaintiff seeks leave to discontinue but argues that he was successful in the proceedings until they were transferred to the Sydney registry- whether the usual consequences of discontinuance (UCPR rr 42.9 and 42.20) should be varied - plaintiff ordered to pay defendant's costs of the discontinued proceedings
Legislation Cited: Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 42.9 and 42.20
Cases Cited: Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365
Foukkare v Angreb Pty Ltd [2006] NSWCA 335
Packer v Meagher [1984] 3 NSWLR 486
Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352
Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107
Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622
Walter v Buckeridge [2013] WASC 313
Texts Cited: District Court Civil Practice Note 6
Category: Principal judgment
Parties: Plaintiff: Attila Boros
Defendant: Christopher Swann
Representation: Plaintiff: In person
Defendant: Mr M Richardson
Plaintiff: In person
Defendant: Clayton Utz

File Number(s): 2014/1451874
Publication restriction: None

Judgment

The plaintiff is the managing director of the Page Group of companies, which includes Pages Hire Centre (NSW) Pty Ltd and the director and secretary of Sydney Harbour Expo@ Glebe Island Pty Ltd. The defendant is the chief executive of Infrastructure NSW.

The plaintiff was the head of a consortium tendering for the development of a temporary convention centre on Glebe Island and in that capacity attended a meeting in May 2013 (the date of which is disputed) in the course of which someone (the statement of claim, in paragraph 7, does not identify whom) "published in the nature of oral statements words to the effect and which were directed to the plaintiff: "You have no funds". Paragraph 8 recites that this statement was "false and was made maliciously" as a basis for not contracting with the plaintiff and/or Sydney Harbour Expo@ Glebe Island Pty Ltd, with "the intent to damage the reputation of the plaintiff" and with the knowledge…

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.

Continue reading Boros v Swann

Details

AGLC: Boros v Swann [2014] NSWDC 227
Case: [2014] NSWDC 227
Decision Date: 23 October 2014

CaseChat Overview and Summary

In the case of Boros v Swann, the plaintiff, Boros, brought proceedings against the defendant, Swann, in the Local Court of New South Wales. The basis of the claim was an oral statement that was alleged to be false and made maliciously, with further publication. The plaintiff sought both an oral statement and declaratory relief. The defendant responded by filing an application to strike out the statement of claim, arguing that it failed to identify a cause of action, challenged the court's jurisdiction for the relief sought, and raised issues regarding limitation periods and pleadings. Additionally, the defendant sought a transfer to the Sydney Defamation List.

The court denied the defendant's application for a transfer and a hearing of his challenges to the pleadings, instead ordering the defendant to file a defence. The defendant then filed a fresh application for transfer from the Parramatta registry, which was granted. Following the transfer, the plaintiff sought leave to discontinue the proceedings, arguing that they had been successful up until the transfer to the Sydney registry. The court was required to determine whether the usual consequences of discontinuance, as outlined in the Uniform Civil Procedure Rules (UCPR) rules 42.9 and 42.20, should be varied in light of the circumstances. Ultimately, the plaintiff was ordered to pay the defendant's costs of the discontinued proceedings.

In accordance with the orders made, the plaintiff's application to discontinue the proceedings was granted, acknowledging that any further action was out of time. The plaintiff was also ordered to pay the defendant's costs of the proceedings. The court's decision emphasised the importance of adhering to procedural rules and the consequences of discontinuing proceedings, even where a plaintiff may have initially been successful.

Orders

Orders of the court

(1) On the application of the plaintiff, who acknowledges any further action is out of time, these proceedings are discontinued.

(2) The plaintiff is to pay the costs of the defendant of these proceedings.

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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Medium Neutral Citation:	Boros v Swann [2014] NSWDC 227
Hearing dates:	23 October 2014
Decision date:	23 October 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) On the application of the plaintiff, who acknowledges any further action is out of time, these proceedings are discontinued. (2) The plaintiff is to pay the costs of the defendant of these proceedings.
Catchwords:	COSTS - Plaintiff brings proceedings for an oral statement which was "false and made maliciously" and "published further", and seeking declaratory relief - defendant brings an application to strike out the statement of claim, asserting failure to identify a cause of action, challenging jurisdiction for the relief sought, raising limitation and pleadings issues and seeking a transfer to the Sydney Defamation List - defendant's application for a transfer and a hearing of his challenges to the pleading refused - defendant ordered to file defence - defendant brings fresh application for transfer from the Parramatta registry which is granted - plaintiff seeks leave to discontinue but argues that he was successful in the proceedings until they were transferred to the Sydney registry- whether the usual consequences of discontinuance (UCPR rr 42.9 and 42.20) should be varied - plaintiff ordered to pay defendant's costs of the discontinued proceedings
Legislation Cited:	Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 42.9 and 42.20
Cases Cited:	Australiawide Airlines Ltd v Aspirion Pty Ltd [2006] NSWCA 365 Foukkare v Angreb Pty Ltd [2006] NSWCA 335 Packer v Meagher [1984] 3 NSWLR 486 Palmer v Gold Coast Newspapers Pty Ltd [2013] QSC 352 Ralph Lauren 57 Pty Ltd v Byron Shire Council [2014] NSWCA 107 Re Minister for Immigration and Ethnic Affairs: Ex parte Lai Qin (1997) 186 CLR 622 Walter v Buckeridge [2013] WASC 313
Texts Cited:	District Court Civil Practice Note 6
Category:	Principal judgment
Parties:	Plaintiff: Attila Boros Defendant: Christopher Swann
Representation:	Plaintiff: In person Defendant: Mr M Richardson Plaintiff: In person Defendant: Clayton Utz
File Number(s):	2014/1451874
Publication restriction:	None