District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Burns v Gaynor (No. 2) [2019] NSWDC 552 Hearing dates: 1 August 2019; 12 September 2019 Date of orders: 10 October 2019 Decision date: 10 October 2019 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to ss 61 and 67 Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4(1) Uniform Civil Procedure Rules 2005 (NSW), these proceedings are dismissed as an abuse of process.
(2) Noting that the plaintiff and second defendant are litigants in person, each of them is to bear his own disbursements and related costs in relation to these proceedings, with liberty to apply to vary this order, such liberty to be exercised in seven (7) days.Catchwords: TORT – defamation – remedies for Facebook publications – plaintiff brings proceedings for defamation (in the District Court) and for remedies under the Anti-Discrimination Act 1977 (NSW) (in the NCAT) against a Facebook account holder the first defendant) and against the second defendant for his part of the publication on the first defendant’s Facebook page – publication pleaded as being downloaded by four of the other participants in the Facebook debate – plaintiff obtains damages award in the NCAT and settles his claim in the defamation proceedings against the first defendant, who was the Facebook account holder – remaining defendant seeks dismissal of the claim as an abuse of process – plaintiff seeks summary dismissal of the defence – whether action liable to be dismissed as an abuse of process on the grounds of proportionality –whether multiple proceedings for different causes of action arising from the same publication may amount to abuse of process – whether the court resources required to determine the claim will be out of all proportion to the interest at stake – trial issues may include consideration of overlapping heads of damage and s 38 Defamation Act issues – likelihood that damages awarded would be very small – proceedings dismissed on the principles of proportionality Legislation Cited: Anti-Discrimination Act 1977 (NSW)
Civil Procedure Act 2005 (NSW), ss 61 and 67
Defamation Act 2005 (NSW), ss 23, 35 and 38
Human Rights Act 1998 (UK)
Industrial Relations Act 1988 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 12.7 and 13.4Cases Cited: Aleksandrov & Ors v Dimovski & Ors [2005] NSWDC 19
Allstate Pumbing Pty Ltd v Crouch Developments Pty Ltd [No 2] [2011] WADC 60
Bailey v Bottrill (No 2) [2019] ACTSC 167
Bajramovic v Calubaquib [2015] NSWCA 139
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Bauer Media Pty Ltd & Anor v Wilson (No 2) [2018] VSCA 154
Bleyer v Google Inc (2014) 88 NSWLR 670
Bristow v Adams [2012] NSWCA 166
Burbank Australia Pty Ltd v Luzinat [2000] VSC 128
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 [2018] NSWDC 358
Burns v Smith [2019] NSWCATAD 56
Calabro v Zappia…
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- Case
- [2019] NSWDC 552
- Decision Date
CaseChat Overview and Summary
The legal issues the court needed to decide were whether the action was liable to be dismissed as an abuse of process due to the principle of proportionality, whether multiple proceedings for different causes of action arising from the same publication could amount to an abuse of process, and whether the resources required to determine the claim would be out of proportion to the interest at stake. The trial issues may have included consideration of overlapping heads of damage and s 38 Defamation Act issues, with the likelihood that any damages awarded would be very small.
The court found that the proceedings were dismissed as an abuse of process on the principles of proportionality. The court noted that the plaintiff and the second defendant were litigants in person, and each was to bear their own disbursements and related costs in relation to these proceedings, with liberty to apply to vary this order within seven days.
Orders
Orders of the court
(1) Pursuant to ss 61 and 67 Civil Procedure Act 2005 (NSW) and rr 12.7 and 13.4(1) Uniform Civil Procedure Rules 2005 (NSW), these proceedings are dismissed as an abuse of process.
(2) Noting that the plaintiff and second defendant are litigants in person, each of them is to bear his own disbursements and related costs in relation to these proceedings, with liberty to apply to vary this order, such liberty to be exercised in seven (7) days.
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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