Ergashova v Aslan - [2025] NSWCA 207

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Ergashova v Aslan [2025] NSWCA 207
Hearing dates: 12 August 2025
Date of orders: 09 September 2025
Decision date: 09 September 2025
Before: Mitchelmore JA; Price AJA
Decision:
(1) The application for leave to appeal is refused with costs.

Catchwords:
APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Supreme Court Act 1970 (NSW), s 101(2)(e)
Uniform Civil Procedure Rules 2005 (NSW), r 12.7

Cases Cited:
Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334
House v The King (1936) 55 CLR 499; [1936] HCA 40
Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371
Re Will of Gilbert (1946) 46 SR (NSW) 318
Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39
PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48

Category: Procedural rulings
Parties: Narghiza Ergashova (self-represented) (Applicant)
Dina Jamil Hamid Aslan (self-represented) (Respondent)
File Number(s): 2025/00137488
Publication restriction: Nil
Decision under appeal

Court or tribunal:

Supreme Court

Jurisdiction:

Common Law

Citation:

[2025] NSWSC 208

Date of Decision:

14 March 2025

Before:

Rothman J

File Number(s):

2023/00302451

JUDGMENT

THE COURT: The applicant, Narghiza Ergashova, has applied for leave to appeal from the decision of Rothman J, delivered on 14 March 2025, in which his Honour dismissed defamation proceedings (the defamation proceedings) for want of due despatch pursuant to r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) (UCPR) and awarded costs to the respondent, Dina Jamil Hamid Aslan.
As his Honour’s decision was interlocutory, the applicant requires leave to appeal: Supreme Court Act 1970 (NSW), s 101(2)(e). This Court exercises particular caution in granting leave to appeal from a decision on a matter of practice and procedure: Re Will of Gilbert (1946) 46 SR (NSW) 318 at 323; Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 at 177; [1981] HCA 39; PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48 at [3]. Referring to the leave requirement in s 101(2)(e) in Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371, Basten JA stated at [9]:

“… A decision as to whether to grant or refuse leave in a particular case must have regard to the guiding principles set out in Pt 6 of the Civil Procedure Act, as discussed in Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[39]. Some considerations are specific to the circumstances of the particular case; some operate generally in relation to the control of 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 Ergashova v Aslan

Details

AGLC: Ergashova v Aslan [2025] NSWCA 207
Case: [2025] NSWCA 207
Decision Date: 09 September 2025

CaseChat Overview and Summary

The applicant, Ms Ergashova, sought leave to appeal an interlocutory decision of the primary court concerning matters of practice and procedure. The respondent, Mr Aslan, opposed the application. The proceedings in question related to a defamation claim, the limitation period for which had now expired.

The central legal issue before the appellate court was whether leave to appeal should be granted. This required the court to consider whether the interlocutory decision involved a question of principle or a question of general public importance, or whether there was a material error of fact in the primary court's determination.

Mitchelmore JA and Price AJA determined that the application for leave to appeal did not meet the necessary threshold for granting leave. They found no issue of principle or question of general public importance raised by the interlocutory decision, nor was there any material error of fact demonstrated. Consequently, the application for leave to appeal was refused.

The application for leave to appeal was refused with costs.

Orders

Orders of the court

(1) The application for leave to appeal is refused with costs.

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:	Ergashova v Aslan [2025] NSWCA 207
Hearing dates:	12 August 2025
Date of orders:	09 September 2025
Decision date:	09 September 2025
Before:	Mitchelmore JA; Price AJA
Decision:	(1) The application for leave to appeal is refused with costs.
Catchwords:	APPEAL — dismissal of proceedings for want of due despatch — application for leave to appeal from an interlocutory decision on matter of practice and procedure — limitation period for defamation proceedings now expired — no issue of principle or question of general public importance — no material error of fact
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Supreme Court Act 1970 (NSW), s 101(2)(e) Uniform Civil Procedure Rules 2005 (NSW), r 12.7
Cases Cited:	Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334 House v The King (1936) 55 CLR 499; [1936] HCA 40 Khoury v Coffey Projects (Australia) Pty Ltd [2015] NSWCA 371 Re Will of Gilbert (1946) 46 SR (NSW) 318 Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170; [1981] HCA 39 PPKWilloughby Pty Ltd v Baird [2019] NSWCA 48
Category:	Procedural rulings
Parties:	Narghiza Ergashova (self-represented) (Applicant) Dina Jamil Hamid Aslan (self-represented) (Respondent)
File Number(s):	2025/00137488
Publication restriction:	Nil
Decision under appeal	Court or tribunal: Supreme Court Jurisdiction: Common Law Citation: [2025] NSWSC 208 Date of Decision: 14 March 2025 Before: Rothman J File Number(s): 2023/00302451