Gair v Greenwood - [2019] NSWDC 725

District Court

New South Wales

Medium Neutral Citation: Gair v Greenwood [2019] NSWDC 725
Hearing dates: 28 November 2019
Date of orders: 28 November 2019
Decision date: 03 December 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Notations

(1) Defendant called outside Court 13D three times at 9:05am – no appearance.
(2) Defendant called again outside Court 13D three times at 9:45am – no appearance.

Orders
(1) The defence filed on 15 August 2017 is struck out.
(2) Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed.
(3) These orders to be entered forthwith.
The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that:
(4) The matter be fixed for hearing of the plaintiffs’ application on Wednesday 11 December 2019 at 9:30am.
(5) The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction.
(6) The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019.
(7) The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019.
(8) The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.
Catchwords: PRACTICE AND PROCEDURE – application for defence to be struck out following non-compliance with self-executing order – history of non-compliance with orders by a self-represented litigant – defendant fails to attend court for the hearing of the application – case management consideration – defence struck out but defendant advised of entitlements under UCPR r 36.16
Legislation Cited: Civil Procedure Act 2005 (NSW), s 56
Defamation Act 2005 (NSW), ss 21, 25 and 26
Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 29.7 and 36.16
Cases Cited: Al Muderis v Duncan (No 4) [2016] NSWSC 1726
Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331
Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010
Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 24
Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126
Duraisamy v Sydney Trains [2019] NSWCA 269
Gair v Greenwood [2017] NSWSC 1652
Gair v Greenwood (No 2) [2018] NSWSC 947
Gair v Greenwood (No 3) (Supreme Court of New South Wales, 7 September 2018, McCallum J)
Kostov v YPOL Limited [2017] NSWSC 395
Kostov v State of New South Wales (No 3) [2019] NSWCA…

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.

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Details

Case: [2019] NSWDC 725
Decision Date: 03 December 2019

CaseChat Overview and Summary

Gair v Greenwood involved the plaintiffs, Gair, seeking damages against the defendant, Greenwood, for defamation. The case was heard in the District Court of New South Wales. The primary dispute centred around the defendant's non-compliance with court orders and his failure to adhere to procedural requirements, culminating in the defendant's absence at the hearing of the application to strike out his defence. The court was tasked with determining whether the defence should be dismissed for non-compliance and considering the implications for the defendant's rights under the Uniform Civil Procedure Rules.

The court examined the defendant's history of non-compliance with orders, which included not only the current failure to adhere to the self-executing order but also previous instances of disregard for court directives. The critical issue was whether the defendant's persistent non-compliance justified the striking out of his defence. Additionally, the court had to consider the defendant's right to be heard and the procedural fairness in dealing with a self-represented litigant. The court found that despite the defendant's absence, his extensive history of non-compliance warranted the striking out of his defence. The court also highlighted the defendant's entitlement to seek relief under UCPR r 36.16.

The court ruled that the defence filed on 15 August 2017 was to be struck out, leading to a verdict and judgment in favour of the plaintiffs. The court further ordered that the matter be fixed for hearing regarding the plaintiffs' application for an injunction on 11 December 2019. The plaintiffs were instructed to serve their evidence and submissions on the defendant by 2 December 2019, with the defendant required to respond by 9 December 2019. The court emphasized the importance of notifying the defendant of these orders and obtaining an affidavit of service. This decision underscores the court's commitment to enforcing procedural rules while ensuring fairness to all parties involved.

Orders

Orders of the court

(1) The defence filed on 15 August 2017 is struck out.

(2) Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed.

(3) These orders to be entered forthwith.

The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that:

(4) The matter be fixed for hearing of the plaintiffs’ application on Wednesday 11 December 2019 at 9:30am.

(5) The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction.

(6) The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019.

(7) The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019.

(8) The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Gair v Greenwood [2019] NSWDC 725
Hearing dates:	28 November 2019
Date of orders:	28 November 2019
Decision date:	03 December 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Notations (1) Defendant called outside Court 13D three times at 9:05am – no appearance. (2) Defendant called again outside Court 13D three times at 9:45am – no appearance. Orders (1) The defence filed on 15 August 2017 is struck out. (2) Verdict and judgment for the plaintiffs, with damages (including any aggravated damages) to be assessed. (3) These orders to be entered forthwith. The court notes the plaintiffs seek an injunction against the defendant restraining him from publishing or causing to be published the matter complained of or matters substantially to the same effect as such matter pursuant to s 46 of the District Court Act 1973 (NSW) and paragraph 3 of the relief sought in the statement of claim. In respect of that application, the court further orders that: (4) The matter be fixed for hearing of the plaintiffs’ application on Wednesday 11 December 2019 at 9:30am. (5) The plaintiffs by 2 December 2019, serve the defendant by email the form of injunction sought, their evidence and submissions in support of the injunction. (6) The defendant serve on the plaintiff any evidence and submissions on which he intends to rely in relation to the injunction sought by 9 December 2019. (7) The parties to provide the Associate to her Honour Judge Gibson with a copy of their evidence and submissions by 4.00pm 9 December 2019. (8) The plaintiffs to notify the defendant of these orders by 5.00pm today and have an affidavit of service available at the hearing on 11 December 2019 confirming notice has been given to the defendant of these orders and notations.
Catchwords:	PRACTICE AND PROCEDURE – application for defence to be struck out following non-compliance with self-executing order – history of non-compliance with orders by a self-represented litigant – defendant fails to attend court for the hearing of the application – case management consideration – defence struck out but defendant advised of entitlements under UCPR r 36.16
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 56 Defamation Act 2005 (NSW), ss 21, 25 and 26 Uniform Civil Procedure Rules 2005 (NSW), rr 7.36, 29.7 and 36.16
Cases Cited:	Al Muderis v Duncan (No 4) [2016] NSWSC 1726 Brooks v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1331 Carolan v Fairfax Media Publications Pty Ltd (No 2) [2015] NSWSC 1010 Channel Seven Sydney Pty Ltd v Senator Concetta Fierravanti-Wells [2011] NSWCA 24 Douglas v John Fairfax & Sons Ltd [1983] 3 NSWLR 126 Duraisamy v Sydney Trains [2019] NSWCA 269 Gair v Greenwood [2017] NSWSC 1652 Gair v Greenwood (No 2) [2018] NSWSC 947 Gair v Greenwood (No 3) (Supreme Court of New South Wales, 7 September 2018, McCallum J) Kostov v YPOL Limited [2017] NSWSC 395 Kostov v State of New South Wales (No 3) [2019] NSWCA…