District Court
New South Wales
Medium Neutral Citation: Burns v Gaynor [2018] NSWDC 358 Hearing dates: 8 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) First defendant’s Notice of Motion dismissed.
(2) Stand over the plaintiff’s application for substituted service on the second defendant on Thursday 6 December 2018 in the Defamation List.
(3) Any claim by the plaintiff for reasonable disbursements by way of a costs order is reserved.
(4) Parties have liberty to bring in Short Minutes of order for a timetable in these proceedings.Catchwords: TORT – abuse of process – plaintiff brings a series of proceedings against the first defendant under the Anti-Discrimination Act 1977 (NSW) – first defendant brings proceedings for defamation against plaintiff – plaintiff abandons his most recent anti-discrimination claim for publications by the first defendant after adverse High Court jurisdictional rulings – whether the plaintiff’s claim for defamation based on those same publications should be struck out as an abuse of process on the basis of the plaintiff having an ancillary dominant improper purpose, namely the intimidation of the first defendant – whether the defamation proceedings are an abuse of process because they are brought in lieu of a claim under anti-discrimination legislation which is impermissible at law – whether action liable to be stayed or dismissed as an abuse of process on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – whether the claim should be struck out on the basis that liability for publication cannot be made out – application for summary dismissal refused Legislation Cited: Anti-Discrimination Act 1977 (NSW), s 49ZT
Civil Liability Act 2005 (NSW), ss 56 – 62
European Convention for the Protection of Human Rights and Fundamental Freedoms, Art 10
Federal Court of Australia Act 1976 (Cth), ss 23 and 31A
International Covenant on Civil and Political Rights, Art 19
Uniform Civil Procedure Rules 2005 (NSW), rr 13.4 and 14.28Cases Cited: Ainsworth v James [2005] NSWSC 338
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Balzola v Burns [2018] NSWCATAD 246
Bleyer v Google Inc (2015) 88 NSWLR 670
Bristow v Adams [2012] NSWCA 166
Burns v Corbett; Burns v Gaynor; Attorney General for NSW v Burns; Attorney General for NSW v Burns; NSW v Burns (2018) 353 ALR 386
Burns v Gaynor [2015] NSWCATAD 211
Commonwealth of Pennsylvania v Knox No 3 WAP 2017 (21 August 2018)
Culleton v Kershaw (No 2) [2018] WASC 236
Derbyshire County Council v Times Newspapers Ltd [1993] AC 534
Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Gaynor v Burns [2015] NSWDC 194
Gaynor v Burns (No 2) [2015] NSWDC 283
Gaynor v Burns [2016] NSWCA 44
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Ghosh v Miller (No 2) [2018]…
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Details
- AGLC
- Burns v Gaynor [2018] NSWDC 358
- Case
- [2018] NSWDC 358
- Decision Date
CaseChat Overview and Summary
The case of Burns v Gaynor involves a dispute between the plaintiff, Burns, and the first defendant, Gaynor. Burns initiated a series of proceedings against Gaynor under the Anti-Discrimination Act 1977 (NSW), which Gaynor responded to by filing defamation proceedings against Burns. Following adverse jurisdictional rulings by the High Court, Burns abandoned his most recent anti-discrimination claim for publications by Gaynor. The central issue before the court was whether Burns’ defamation claim based on the same publications should be dismissed as an abuse of process due to an ancillary dominant improper purpose, specifically the intimidation of Gaynor. Additionally, the court had to determine if the defamation proceedings were an abuse of process because they were brought in lieu of a claim under anti-discrimination legislation, which is impermissible at law. The court also considered whether the action should be dismissed on the grounds that the legal costs and court resources required to determine the claim would be disproportionate to the interest at stake.
The court held that the plaintiff’s defamation claim should not be struck out as an abuse of process. The court found that while there might be an ancillary improper purpose, it was not dominant or improper to such an extent that it warranted the dismissal of the claim. The court also ruled that the defamation proceedings were not an abuse of process merely because they were brought instead of an impermissible anti-discrimination claim. Furthermore, the court determined that the legal costs and court resources required to determine the claim were not disproportionate to the interest at stake. Consequently, the application for summary dismissal was refused.
The court's orders included dismissing the first defendant’s Notice of Motion, standing over the plaintiff’s application for substituted service on the second defendant, reserving any claim by the plaintiff for reasonable disbursements by way of a costs order, and granting the parties liberty to bring in Short Minutes of order for a timetable in these proceedings. This decision underscores the importance of distinguishing between ancillary improper purposes and dominant improper purposes in determining whether a claim should be dismissed as an abuse of process.
The court held that the plaintiff’s defamation claim should not be struck out as an abuse of process. The court found that while there might be an ancillary improper purpose, it was not dominant or improper to such an extent that it warranted the dismissal of the claim. The court also ruled that the defamation proceedings were not an abuse of process merely because they were brought instead of an impermissible anti-discrimination claim. Furthermore, the court determined that the legal costs and court resources required to determine the claim were not disproportionate to the interest at stake. Consequently, the application for summary dismissal was refused.
The court's orders included dismissing the first defendant’s Notice of Motion, standing over the plaintiff’s application for substituted service on the second defendant, reserving any claim by the plaintiff for reasonable disbursements by way of a costs order, and granting the parties liberty to bring in Short Minutes of order for a timetable in these proceedings. This decision underscores the importance of distinguishing between ancillary improper purposes and dominant improper purposes in determining whether a claim should be dismissed as an abuse of process.
Orders
Orders of the court
(1) First defendant’s Notice of Motion dismissed.
(2) Stand over the plaintiff’s application for substituted service on the second defendant on Thursday 6 December 2018 in the Defamation List.
(3) Any claim by the plaintiff for reasonable disbursements by way of a costs order is reserved.
(4) Parties have liberty to bring in Short Minutes of order for a timetable in 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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