Elliott v Tomkins (No. 2)

[2014] NSWDC 56

District Court

New South Wales

Medium Neutral Citation:

Elliott v Tomkins (No. 2) [2014] NSWDC 56

Hearing dates:

9 April 2014

Decision date:

09 April 2014

Jurisdiction:

Civil

Before:

Gibson DCJ

Decision:

(1) Extend the time for the filing of a Further Amended Statement of Claim to Wednesday 14 May 2014 conditional upon the plaintiff paying the defendant's costs of and incidental to 28 February 2014, 28 March 2014 and today on an indemnity basis, assessable forthwith.

(2) Order (1) is self-executing in nature.

(3) The notice of motion stood over part heard to Monday 26 May 2014 at 9:30am before Gibson DCJ.

Catchwords:

TORT - defamation - application for extension of time to file amended statement of claim - alternative application that particulars of publication and identification were matters for the trial - cross-application by defendant for summary judgment - application for extension granted - whether plaintiff should pay defendant's costs on an indemnity basis

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW), r 15.19

Cases Cited:

Bank of Queensland Limited v Industrial Court of New South Wales (No 2) [2008] FCA 1435
Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing & Allied Services Union of Australia v Australian Competition and Consumer Commission (ACCC) (2007) 162 FCR 466
Creative Resins International Ltd v Glassam Europe Ltd [2006] All ER (D) 178
Dank v Whittaker (No 3) [2013] NSWSC 1822
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Emmerton v University of Sydney (1970) 2 NSWR 633
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Jenman v McIntyre [2013] NSWSC 1100
John Fairfax Group Pty Ltd v Farley (Federal Court of Australia, Gallop, Burchett and Gummow JJ, 2 May 1994)
Knupffer v London Express Newspaper Ltd [1944] AC 116
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Williams v Ramsdale (1887) 3 WR 125

Texts Cited:

-

Category:

Interlocutory applications

Parties:

Plaintiff: David Dean Elliott
Defendant: Kevin Tomkins

Representation:

Plaintiff: Mr P Zada (solicitor)
Defendant: Mr B Goldsmith (solicitor)
Plaintiff: Navado Lawyers & Solicitors
Defendant: Goldsmiths Lawyers

File Number(s):

2013/252889

Publication restriction:

None

Judgment

1. These proceedings demonstrate case management issues common to defamation actions. The complexities of defamation law require the parties to plead and particularise their case with precision. However, not all aspects of defamation law are complex. Particulars of how an unnamed plaintiff was identified (and by whom), or of the circumstances in which a publication on the Internet was downloaded, are simple issues of fact.

1. The continued difficulties the plaintiff has had in providing this essential information are particularly difficult to understand, for two reasons. First, the plaintiff has foreshadowed a claim for special damages arising from lost transactions with customers who read the matter complained of (and who presumably identified him). Second, the plaintiff's complaints about the defence filed in these proceedings are such that an application was brought to strike out the defence and have the proceedings listed for assessment of damages.

1. As is set out in…