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 36.16Cases 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…
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- Case
- [2019] NSWDC 725
- Decision Date
CaseChat Overview and Summary
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
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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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