Eppinga v Kalil - [2021] NSWDC 549

District Court

New South Wales

Medium Neutral Citation: Eppinga v Kalil & Anor [2021] NSWDC 549
Hearing dates: 14 October 2021
Date of orders: 14 October 2021
Decision date: 14 October 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   The application by Dr and Mrs Kalil (the defendants in the cross-claim) to set aside the subpoena to the Veterinary Board of NSW is dismissed.
(2)   The solicitors for both parties are to have access to the documents produced by the Veterinary Board of NSW.
(3)   Access is not to be given to the parties to the documents under that subpoena without the leave of the Court.
(4)   Mr Goldsmith’s application for first access to these documents is refused.
(5)   The application by Dr and Mrs Kalil to strike out paragraph 2(e)(iii)(4) of the Reply is dismissed.
(6)   The parties are to provide Lists of Documents in 21 days giving discovery in accordance with my rulings as to the categories of documents which are discoverable, with inspection to take place within 14 days thereafter.
(7)   Dr and Mrs Kalil’s additional application for further and better discovery in relation to the documents in paragraph 51 of Mr Leonardo Muriniti of 8 June 2021 is dismissed.
(8)   The parties are to exchange draft notices to answer interrogatories within 28 days after inspection of documents produced on discovery.
(9)   The parties are to approach the List Judge for a hearing date as a non-jury hearing of 5 days plus in length, to take place not before July 2022.
(10)   Dr and Mrs Kalil are to pay Ms Eppinga’s costs of the application.

Catchwords:
PRACTICE AND PROCEDURE – application to set aside subpoena – application to strike out a particular of the Reply – adequacy of categories of discovery – no issue of principle

Legislation Cited:
Defamation Act 2005 (NSW) s 42
Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 33.4

Cases Cited:
Kalil v Bray & Anor [1977] 1 NSWLR 256
Kalil v Eppinga [2020] NSWDC 407
Liristis v Gadelrabb [2009] NSWSC 441
Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064
Muriniti v Kalil [2021] NSWCA 81

Category: Procedural rulings
Parties: Cross-claimant:
Ms Ellie Rose Eppinga
Cross-defendants:
1st Cross-defendant:
Dr Mahmoud Kalil
2nd Cross-defendant:
Ms Magda Kalil
Representation: Solicitors:
Cross-claimant: Mr R Newell
Mr L Muriniti (L.C. Muriniti & Associates)
Cross-defendants:
Mr B Goldsmith (Goldsmiths Lawyers)

File Number(s): 2019/00045573

Judgment

Dr Kalil operates a veterinary business (the Beacon Hill Veterinary Hospital). He and a veterinary nurse, Ms Eather, commenced proceedings for defamation for publication by Ms Eppinga and another person of Facebook posts about conditions at the clinic. Ms Eppinga, the first defendant, brought a cross-claim for defamation for a Facebook post published by Mr and Mrs Kalil on 3 February 2019.
Dr Kalil and Ms Eather discontinued their defamation proceedings. In relation to the cross-claim, which is all that remains for determination, Dr and Mrs Kalil filed a defence of qualified privilege at common law (including reply to attack) on…

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 Eppinga v Kalil

Details

AGLC: Eppinga v Kalil [2021] NSWDC 549
Case: [2021] NSWDC 549
Decision Date: 14 October 2021

CaseChat Overview and Summary

The case of Eppinga v Kalil involved an application to set aside a subpoena and to strike out a particular of the reply, as well as issues regarding the adequacy of categories of discovery. The parties to the case were Dr and Mrs Kalil, the defendants in a cross-claim, and Ms Eppinga. The case was heard in the Supreme Court of New South Wales. The Kalils sought to set aside a subpoena to the Veterinary Board of New South Wales and to strike out a particular of the reply. They also sought additional discovery of documents and a determination of the adequacy of categories of discovery. The court had to decide whether the subpoena should be set aside, whether the particular of the reply should be struck out, and whether the categories of discovery were adequate.

The court found that there was no issue of principle that would warrant setting aside the subpoena to the Veterinary Board of New South Wales. It found that the Kalils’ application to strike out the particular of the reply was without merit. The court also found that the categories of discovery were adequate and that there was no need for further discovery. The court ordered that the subpoena to the Veterinary Board of New South Wales was to be enforced, and that the Kalils’ application to strike out the particular of the reply was dismissed. The parties were ordered to provide lists of documents within 21 days and to inspect the documents within 14 days. The parties were also ordered to exchange draft notices to answer interrogatories within 28 days after inspection of documents produced on discovery. The Kalils were ordered to pay Eppinga’s costs of the application.

Orders

Orders of the court

Order:

(1) The application by Dr and Mrs Kalil (the defendants in the cross-claim) to set aside the subpoena to the Veterinary Board of NSW is dismissed.

(2) The solicitors for both parties are to have access to the documents produced by the Veterinary Board of NSW.

(3) Access is not to be given to the parties to the documents under that subpoena without the leave of the Court.

(4) Mr Goldsmith’s application for first access to these documents is refused.

(5) The application by Dr and Mrs Kalil to strike out paragraph 2(e)(iii)(4) of the Reply is dismissed.

(6) The parties are to provide Lists of Documents in 21 days giving discovery in accordance with my rulings as to the categories of documents which are discoverable, with inspection to take place within 14 days thereafter.

(7) Dr and Mrs Kalil’s additional application for further and better discovery in relation to the documents in paragraph 51 of Mr Leonardo Muriniti of 8 June 2021 is dismissed.

(8) The parties are to exchange draft notices to answer interrogatories within 28 days after inspection of documents produced on discovery.

(9) The parties are to approach the List Judge for a hearing date as a non-jury hearing of 5 days plus in length, to take place not before July 2022.

(10) Dr and Mrs Kalil are to pay Ms Eppinga’s costs of the application.

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:	Eppinga v Kalil & Anor [2021] NSWDC 549
Hearing dates:	14 October 2021
Date of orders:	14 October 2021
Decision date:	14 October 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) The application by Dr and Mrs Kalil (the defendants in the cross-claim) to set aside the subpoena to the Veterinary Board of NSW is dismissed. (2) The solicitors for both parties are to have access to the documents produced by the Veterinary Board of NSW. (3) Access is not to be given to the parties to the documents under that subpoena without the leave of the Court. (4) Mr Goldsmith’s application for first access to these documents is refused. (5) The application by Dr and Mrs Kalil to strike out paragraph 2(e)(iii)(4) of the Reply is dismissed. (6) The parties are to provide Lists of Documents in 21 days giving discovery in accordance with my rulings as to the categories of documents which are discoverable, with inspection to take place within 14 days thereafter. (7) Dr and Mrs Kalil’s additional application for further and better discovery in relation to the documents in paragraph 51 of Mr Leonardo Muriniti of 8 June 2021 is dismissed. (8) The parties are to exchange draft notices to answer interrogatories within 28 days after inspection of documents produced on discovery. (9) The parties are to approach the List Judge for a hearing date as a non-jury hearing of 5 days plus in length, to take place not before July 2022. (10) Dr and Mrs Kalil are to pay Ms Eppinga’s costs of the application.
Catchwords:	PRACTICE AND PROCEDURE – application to set aside subpoena – application to strike out a particular of the Reply – adequacy of categories of discovery – no issue of principle
Legislation Cited:	Defamation Act 2005 (NSW) s 42 Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) r 33.4
Cases Cited:	Kalil v Bray & Anor [1977] 1 NSWLR 256 Kalil v Eppinga [2020] NSWDC 407 Liristis v Gadelrabb [2009] NSWSC 441 Mackintosh v Commissioner of Police (NSW) [2010] NSWSC 1064 Muriniti v Kalil [2021] NSWCA 81
Category:	Procedural rulings
Parties:	Cross-claimant: Ms Ellie Rose Eppinga Cross-defendants: 1st Cross-defendant: Dr Mahmoud Kalil 2nd Cross-defendant: Ms Magda Kalil
Representation:	Solicitors: Cross-claimant: Mr R Newell Mr L Muriniti (L.C. Muriniti & Associates) Cross-defendants: Mr B Goldsmith (Goldsmiths Lawyers)
File Number(s):	2019/00045573