Elliott v Tomkins - [2014] NSWDC 55

District Court

New South Wales

Medium Neutral Citation: Elliott v Tomkins [2014] NSWDC 55
Hearing dates: 28 February 2014
Decision date: 28 February 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Dismiss the application of the plaintiff to strike out the defence in these proceedings pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and have summary judgment entered.
(2) Direct the plaintiff to file and serve an amended statement of claim in 14 days.
(3) On or before 14 March 2014, the plaintiff provide to the defendant particulars of all facts, matters and circumstances upon which he relies in support of any claim that these proceedings should properly be heard and determined in this Court.
(4) Defendant to file and serve a defence by Thursday 27 March 2014.
(5) Matter stood over for further directions on Friday 28 March 2014 at 10:00am before Gibson DCJ to monitor compliance with these orders and to make appropriate costs orders.
(6) Costs of today reserved.

Catchwords: TORT - defamation proceedings for six publications on the Internet - defendant (a litigant in person) filed defences of justification which were deficient in form - application by plaintiff to strike out defence and for the proceedings to be listed for assessment of damages - cross-application by defendant for plaintiff to provide particulars of identification and publication - plaintiff not named in five of the publications, and the place of publication was identified only as worldwide - plaintiff's application for summary judgment refused - plaintiff ordered to provide particulars of identification and publication in amended pleading
Legislation Cited: Defamation Act 2005 (NSW), s 25
Civil Procedure Act 2005 (NSW), s 56(1)
Cases Cited: Burrows v Knightley (1987) 10 NSWLR 651
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Jecks v Taylor (Supreme Court of Western Australia, 9 November 1992)
Jenman v McIntyre [2013] NSWSC 1100
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950
Mann v Cahill (1999) 149 FLR 298
Northam v Favelle Favco Holdings Pty Ltd (Supreme Court of New South Wales, Bryson J, 7 March 1995)
Setka v Abbott [2913] VSC 726
Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821
Texts Cited: -
Category: Interlocutory applications
Parties: Plaintiff: David Dean Elliott
Defendant: Kevin Tomkins
Representation: Plaintiff: Ms M Nguyen (solicitor)
Defendant: Mr B Goldsmith (solicitor)
Plaintiff: Navado Lawyers & Solicitors
Defendant: Goldsmiths Lawyers

File Number(s): 2013/252889
Publication restriction: None

Judgment

These are my reasons for dismissing the plaintiff's application for summary judgment and assessment of damages.

The plaintiff commenced proceedings for defamation by statement of claim filed on 20 August 2013, pleading defamatory imputations arise from six Internet publications between 21 and 23 August 2012. These publications consist of a negative EBay review and subsequent discussion on Australian Bowhunting Forum of the defendant's problems with a business named "Achilles Archery & Outdoors".

The plaintiff is not named in five of the six publications in question.…

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 Elliott v Tomkins

Details

AGLC: Elliott v Tomkins [2014] NSWDC 55
Case: [2014] NSWDC 55
Decision Date: 28 February 2014

CaseChat Overview and Summary

In the matter of Elliott v Tomkins, the plaintiff, Elliott, sought relief for defamatory publications made by the defendant, Tomkins, on the internet. The dispute reached the court as the defendant, acting as a litigant in person, had filed defences of justification that were insufficient in form. Elliott subsequently applied to strike out the defence and for the proceedings to be listed for an assessment of damages. Tomkins filed a cross-application requesting that Elliott provide particulars of identification and publication, as the plaintiff was not named in five of the publications and the place of publication was only vaguely identified as worldwide.

The court had to determine the validity of the defendant's defences, which were inadequate in form, and decide on the sufficiency of the plaintiff's application to strike out the defence and for the proceedings to be listed for assessment of damages. Additionally, the court needed to consider the defendant's cross-application for particulars of identification and publication.

The court refused the plaintiff's application for summary judgment and ordered that the defendant provide particulars of identification and publication in an amended pleading. The court dismissed the application to strike out the defence, directed the plaintiff to file and serve an amended statement of claim within 14 days, and ordered the plaintiff to provide particulars of all facts, matters and circumstances upon which he relies in support of any claim that these proceedings should properly be heard and determined in this Court. The defendant was required to file and serve a defence by a specified date, and the matter was stood over for further directions to monitor compliance with these orders and to make appropriate costs orders. The costs of the hearing were reserved.

In summary, the court found the defendant's defences to be insufficient in form, dismissed the plaintiff's application to strike out the defence and for the proceedings to be listed for assessment of damages, and ordered the plaintiff to provide particulars of identification and publication in an amended pleading. The matter was stood over for further directions to ensure compliance with these orders and to make appropriate costs orders.

Orders

Orders of the court

(1) Dismiss the application of the plaintiff to strike out the defence in these proceedings pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and have summary judgment entered.

(2) Direct the plaintiff to file and serve an amended statement of claim in 14 days.

(3) On or before 14 March 2014, the plaintiff provide to the defendant particulars of all facts, matters and circumstances upon which he relies in support of any claim that these proceedings should properly be heard and determined in this Court.

(4) Defendant to file and serve a defence by Thursday 27 March 2014.

(5) Matter stood over for further directions on Friday 28 March 2014 at 10:00am before Gibson DCJ to monitor compliance with these orders and to make appropriate costs orders.

(6) Costs of today reserved.

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:	Elliott v Tomkins [2014] NSWDC 55
Hearing dates:	28 February 2014
Decision date:	28 February 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Dismiss the application of the plaintiff to strike out the defence in these proceedings pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and have summary judgment entered. (2) Direct the plaintiff to file and serve an amended statement of claim in 14 days. (3) On or before 14 March 2014, the plaintiff provide to the defendant particulars of all facts, matters and circumstances upon which he relies in support of any claim that these proceedings should properly be heard and determined in this Court. (4) Defendant to file and serve a defence by Thursday 27 March 2014. (5) Matter stood over for further directions on Friday 28 March 2014 at 10:00am before Gibson DCJ to monitor compliance with these orders and to make appropriate costs orders. (6) Costs of today reserved.
Catchwords:	TORT - defamation proceedings for six publications on the Internet - defendant (a litigant in person) filed defences of justification which were deficient in form - application by plaintiff to strike out defence and for the proceedings to be listed for assessment of damages - cross-application by defendant for plaintiff to provide particulars of identification and publication - plaintiff not named in five of the publications, and the place of publication was identified only as worldwide - plaintiff's application for summary judgment refused - plaintiff ordered to provide particulars of identification and publication in amended pleading
Legislation Cited:	Defamation Act 2005 (NSW), s 25 Civil Procedure Act 2005 (NSW), s 56(1)
Cases Cited:	Burrows v Knightley (1987) 10 NSWLR 651 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Jecks v Taylor (Supreme Court of Western Australia, 9 November 1992) Jenman v McIntyre [2013] NSWSC 1100 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Lucas v John Fairfax Publications Pty Ltd [2000] NSWSC 950 Mann v Cahill (1999) 149 FLR 298 Northam v Favelle Favco Holdings Pty Ltd (Supreme Court of New South Wales, Bryson J, 7 March 1995) Setka v Abbott [2913] VSC 726 Sporting Shooters Association of Australia v Judge (No 2) [2013] NSWSC 1821
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: David Dean Elliott Defendant: Kevin Tomkins
Representation:	Plaintiff: Ms M Nguyen (solicitor) Defendant: Mr B Goldsmith (solicitor) Plaintiff: Navado Lawyers & Solicitors Defendant: Goldsmiths Lawyers
File Number(s):	2013/252889
Publication restriction:	None