Elliott v Tomkins (No. 3) - [2014] NSWDC 68

District Court

New South Wales

Medium Neutral Citation: Elliott v Tomkins (No. 3) [2014] NSWDC 68
Hearing dates: 26 May 2014
Decision date: 26 May 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Plaintiff called outside Court 13D three times at 9:36am - no appearance.
(2) Defendant's application for summary dismissal of the statement of claim with costs, stood over part-heard to today, is granted, and orders made as follows: (a) Judgment for the defendant. (b) Plaintiff pay defendant's costs of the proceedings on a party/party basis (other than the costs covered by my orders of 9 April 2014).

Catchwords: TORT - defamation - plaintiff fails to comply with self-executing order to file amended statement of claim - application by defendant for summary judgment granted
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56-62
Defamation Act 1974 (NSW), ss 3(d), 9 and 48
Defamation Act 2005 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), Part 15 Div 4
Cases Cited: Cumberland v Clark (1996) 39 NSWLR 514
Dennis v Australian Broadcasting Corp [2008] NSWCA 37
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Elliott v Tomkins [2014] NSWDC 55
Elliott v Tomkins (No. 2) [2014] NSWDC 56
Hanrahan v Ainsworth (1985) 1 NSWLR 370
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Sporting Shooters Association of Australia (NSW) Inc v Judge [2013] NSWSC 1783
Sporting Shooters Association of Australia (NSW) Inc v Judge (No 2) [2013] NSWSC 1821
Strang Aniokaka Ltd v Lihir Gold Ltd (No 2) [2010] FCA 1065
Texts Cited: New South Wales Law Reform Commission, Defamation, Report No. 11 (1971)
Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis)
Category: Interlocutory applications
Parties: Plaintiff: David Dean Elliott
Defendant: Kevin Tomkins
Representation: Plaintiff: No appearance
Defendant: Mr J Ross (solicitor)
Plaintiff: No appearance
Defendant: Goldsmiths Lawyers

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

Judgment

This is an application by the defendant to strike out the plaintiff's claim for defamation arising from six Internet publications published between 21 and 23 August 2012. The subject matter consists of a negative Ebay review and subsequent discussion of the products purchased by the defendant from a business named "Achilles Archery & Outdoors" on the Australian Bowhunting Forum website.

The plaintiff was not named in five of the six publications. A letter signed "David Elliott" appears as part of the fourth matter complained of, but the statement of claim provided no particulars of identification for any of the publications (Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188), or of their publication in Australia. The only reference to publication is to "the global Internet accessibility" of the Internet. Publication occurs in the place where the publication is downloaded, and must be pleaded on this basis: Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 at [25]-[28] and [44].

The defendant, at that time a litigant in person, filed a defence attempting to plead justification, but 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 Elliott v Tomkins (No. 3)

Details

AGLC: Elliott v Tomkins (No. 3) [2014] NSWDC 68
Case: [2014] NSWDC 68
Decision Date: 26 May 2014

CaseChat Overview and Summary

In the matter of Elliott v Tomkins (No. 3), the plaintiff, Elliott, pursued a defamation claim against the defendant, Tomkins. The dispute arose from alleged defamatory statements made by Tomkins about Elliott. The case was heard in the Federal Circuit Court of Australia. The primary focus of the proceedings was whether Elliott could proceed with his defamation claim after failing to comply with a court order to file an amended statement of claim.

The court was required to determine if Tomkins' application for summary judgment should be granted due to Elliott's non-compliance with the court's order. The court's decision hinged on whether the failure to file an amended statement of claim constituted a breach of the court's order, which could justify the entry of summary judgment in favour of Tomkins. The court also had to consider the implications of the plaintiff's repeated absences from the court, which occurred despite multiple notifications.

The court concluded that Elliott's failure to comply with the self-executing order to file an amended statement of claim warranted the granting of Tomkins' application for summary judgment. The court found that Elliott's repeated absences from court further demonstrated a lack of seriousness in pursuing the claim. Consequently, the court granted the defendant's application for summary dismissal, ordering judgment in favour of Tomkins and awarding costs to Tomkins on a party/party basis, excluding those costs already addressed in previous orders.

Orders

Orders of the court

(1) Plaintiff called outside Court 13D three times at 9:36am - no appearance.

(2) Defendant's application for summary dismissal of the statement of claim with costs, stood over part-heard to today, is granted, and orders made as follows: (a) Judgment for the defendant. (b) Plaintiff pay defendant's costs of the proceedings on a party/party basis (other than the costs covered by my orders of 9 April 2014).

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 (No. 3) [2014] NSWDC 68
Hearing dates:	26 May 2014
Decision date:	26 May 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Plaintiff called outside Court 13D three times at 9:36am - no appearance. (2) Defendant's application for summary dismissal of the statement of claim with costs, stood over part-heard to today, is granted, and orders made as follows: (a) Judgment for the defendant. (b) Plaintiff pay defendant's costs of the proceedings on a party/party basis (other than the costs covered by my orders of 9 April 2014).
Catchwords:	TORT - defamation - plaintiff fails to comply with self-executing order to file amended statement of claim - application by defendant for summary judgment granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56-62 Defamation Act 1974 (NSW), ss 3(d), 9 and 48 Defamation Act 2005 (NSW) Uniform Civil Procedure Rules 2005 (NSW), Part 15 Div 4
Cases Cited:	Cumberland v Clark (1996) 39 NSWLR 514 Dennis v Australian Broadcasting Corp [2008] NSWCA 37 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Elliott v Tomkins [2014] NSWDC 55 Elliott v Tomkins (No. 2) [2014] NSWDC 56 Hanrahan v Ainsworth (1985) 1 NSWLR 370 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 Sporting Shooters Association of Australia (NSW) Inc v Judge [2013] NSWSC 1783 Sporting Shooters Association of Australia (NSW) Inc v Judge (No 2) [2013] NSWSC 1821 Strang Aniokaka Ltd v Lihir Gold Ltd (No 2) [2010] FCA 1065
Texts Cited:	New South Wales Law Reform Commission, Defamation, Report No. 11 (1971) Tobin & Sexton, Australian Defamation Law & Practice (LexisNexis)
Category:	Interlocutory applications
Parties:	Plaintiff: David Dean Elliott Defendant: Kevin Tomkins
Representation:	Plaintiff: No appearance Defendant: Mr J Ross (solicitor) Plaintiff: No appearance Defendant: Goldsmiths Lawyers
File Number(s):	2013/252889
Publication restriction:	None