Ergashova v Aslan - [2025] NSWSC 208

Supreme Court

New South Wales

Medium Neutral Citation: Ergashova v Aslan [2025] NSWSC 208
Hearing dates: 16 August 2024
Date of orders: 14 March 2025
Decision date: 14 March 2025
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1) Proceedings be dismissed.
(2) The plaintiff shall pay the defendant’s costs of and incidental to the proceedings.

Catchwords:
CIVIL PROCEDURE — summary disposal — dismissal of proceedings — want of due despatch — Civil Procedure Act 2005 (NSW) — defamation — injurious falsehood

Legislation Cited:
Uniform Civil Procedure Rules 2005 rr 6.3, 12.7, 13.4

Category: Procedural rulings
Parties: Narghiza Ergashova (Plaintiff)
Dina Jamil Hamid Aslan (Defendant) (self-represented)
Representation: Counsel:
Solicitors:
Stewart & Associates (Plaintiff)

File Number(s): 2023/00302451

JUDGMENT

HIS HONOUR: The history of this proceeding raises significant issues associated with the appropriate prosecution and conduct of litigation. The Statement of Claim, filed 22 September 2023, seeks remedies for defamation and injurious falsehood. It extends to 51 pages plus annexures which include that which purports to be a Concerns Notice dated 11 August 2023 of 11 pages, a copy of the impugned publications, and correspondence between the parties, the relevance of which some is questionable.
On 9 November 2023, the defendant filed a “Defence Statement” in answer to the Statement of Claim. By a Notice of Motion filed 12 December 2023, the defendant moved for dismissal of the proceedings seemingly on the basis of: a failure to state a valid claim or cause of action and/or insufficient evidence (reliant upon the Uniform Civil Procedure Rules (UCPR) r 13.4); abuse of process (reliant upon UCPR r 6.3); vexatious litigation and malicious intent (reliant upon UCPR r 12.7); and a failure to particularise. Directions were given for the filing of an outline of submission in relation to the motions. The motion was extended to rely upon the failure of the plaintiff to prosecute the claim in a timely manner or appropriately.
Earlier motions seeking interlocutory relief were filed by the plaintiff on 22 and 25 September 2023 and heard and determined on 5 October 2023. It is necessary to set out some of the history, which includes some issues that occurred prior to the filing of the Statement of Claim and any motion.

Background

The material that follows is taken from the affidavit of the plaintiff and the affidavit of the defendant. The defendant is unrepresented.
During the period since the filing of the Statement of Claim, apart from a short delay associated with the appointment of different lawyers, the plaintiff has claimed illness which has prevented her from complying with orders of the Court, attending Court and providing instructions. A short chronology needs to be recounted.
According to the plaintiff’s affidavit, in June 2023, the plaintiff underwent a thyroid biopsy which found that which was to be examined to be “benign”. Nevertheless, there was that which the plaintiff perceived was a lump that had enlarged. It had not enlarged any further but was removed as will be seen later in this chronology.
At 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] NSWSC 208
Case: [2025] NSWSC 208
Decision Date: 14 March 2025

CaseChat Overview and Summary

In Ergashova v Aslan, the parties were engaged in a defamation dispute, which was heard in the Supreme Court of New South Wales. The plaintiff, Ergashova, brought proceedings against the defendant, Aslan, for defamatory statements made by Aslan that were alleged to have injured Ergashova's reputation. The case involved a claim for injurious falsehood, which is a form of defamation that involves false statements made with malice that cause economic harm. The court was required to determine whether the proceedings should be dismissed due to a want of due despatch under the Civil Procedure Act 2005 (NSW).

The court considered whether the delay in proceeding with the case warranted a dismissal under the statute. The plaintiff had taken a significant amount of time to file the proceedings, which the defendant argued amounted to an unjustifiable delay. The court had to balance the principle of due despatch, which aims to prevent unnecessary delays in litigation, against the plaintiff's right to bring a claim. The key issue was whether the delay had prejudiced the defendant to the extent that it would be just to dismiss the proceedings.

The court found that the plaintiff's delay in filing the proceedings was unreasonable and amounted to a want of due despatch. The delay had caused significant prejudice to the defendant, as it had impacted their ability to adequately prepare a defence and had led to the loss of evidence. The court held that the prejudice to the defendant outweighed the plaintiff's right to bring the claim, and therefore dismissed the proceedings. The court emphasised the importance of promptness in litigation and the need to maintain the efficiency of the judicial process.

The court ordered that the plaintiff's claim be dismissed, with no order as to costs. The dismissal was made without prejudice, meaning that the plaintiff retained the right to bring a new claim if they could demonstrate that the delay was justified. The court's decision highlighted the importance of adhering to timelines in litigation and the consequences of failing to do so.

Orders