Chan v Perry - [2009] NSWSC 1293

CITATION: Chan v Perry [2009] NSWSC 1293

HEARING DATE(S): 19 November 2009

JUDGMENT DATE :
27 November 2009

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: (1) Pursuant to rule 13.4(1) of the UCPR, the proceedings are dismissed.
(2) The plaintiff is to pay the defendant’s costs of the proceedings.

CATCHWORDS: PROCEDURE – application to have proceedings dismissed pursuant to rule 13.4(1) UCPR – conspiring to injure – conspiracy – defamation – failure by plaintiff to identify in pleading the material facts relied upon – mere speculation – proceedings dismissed

LEGISLATION CITED: Defamation Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605
Chan v Reynolds; Chan v Department of Housing & Anor [2009] NSWSC 792
East-West Airlines (Operations) Ltd v Commonwealth (1983) 57 ALJR 783
Favell v Queensland Newspapers Pty Limited [2005] HCA 52
Gordon v Amalgamated Television Services [1980] 2 NSWLR 410
Hamod v State of New South Wales (No 12) [2009] NSWSC 242

PARTIES: Yau Hang CHAN (Plaintiff)
Barbara PERRY (Defendant)

FILE NUMBER(S): SC 20551/08

COUNSEL: In Person (Plaintiff)
Mr M Lynch (Defendant)

SOLICITORS: Crown Solicitors (Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

27 NOVEMBER 2009

20551/08 Yau Hang CHAN v Barbara PERRY

JUDGMENT

1 HER HONOUR: These are proceedings brought by Mr Yau Hang Chan against Ms Barbara Perry arising out of a letter sent by Ms Perry to Mr Chan in December 2007 under the letterhead of the Premier of New South Wales (then Mr Morris Iemma).

2 By notice of motion dated 22 May 2009, Ms Perry seeks to have the proceedings dismissed pursuant to rule 13.4(1) of the Uniform Civil Procedure Rules 2005. That rule states:

“Frivolous and vexatious proceedings

(1) If in any proceedings it appears to the court that in relation to the proceedings generally or in relation to any claim for relief in the proceedings:

(a) the proceedings are frivolous or vexatious, or

(b) no reasonable cause of action is disclosed, or

the court may order that the proceedings be dismissed generally or in relation to that claim.”

3 Since the filing of the notice of motion, three further versions of the statement of claim have been served, but not filed. One was served on the morning of 16 November 2009, just before the proceedings were called for hearing. The proceedings were subsequently stood over for hearing later in the week, for reasons identified in my judgment given 19 November 2009.

4 The fifth version of the pleading (MFI 2) was served on the…

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 Chan v Perry

Details

AGLC: Chan v Perry [2009] NSWSC 1293
Case: [2009] NSWSC 1293
Decision Date: 27 November 2009

CaseChat Overview and Summary

In the matter of Chan v Perry, the plaintiff sought to have the proceedings dismissed by the Federal Circuit and Family Court of Australia. The plaintiff, Chan, had initially brought an action against Perry for conspiracy to injure, defamation, and other related claims. The court was required to consider an application by Perry to dismiss the proceedings under rule 13.4(1) of the Uniform Civil Procedure Rules (UCPR), primarily on the basis that Chan had failed to identify in the pleading the material facts relied upon and had merely speculated about the existence of a conspiracy.

The court considered whether Chan's claims were adequately supported by the material facts as required by the rules of pleading. The court examined whether Chan's allegations were more than mere speculation and whether they set out sufficient facts to support the claims of conspiracy and defamation. The court also considered whether Chan had failed to comply with the court's orders regarding the identification of material facts.

The court held that Chan had not provided sufficient material facts to support the claims of conspiracy and defamation. The court found that the claims were based on mere speculation and conjecture, without any concrete evidence or detailed facts. The court concluded that Chan's failure to identify the material facts relied upon was a significant deficiency and that the proceedings should be dismissed under rule 13.4(1) of the UCPR. The court found that there was no just or sufficient basis for the claims to proceed, and therefore dismissed the proceedings in their entirety.

Orders