(1) Defendant’s application for summary dismissal of these proceedings pursuant to UCPR rr 13.4(1)(c) and 14.28 is dismissed.
(2) Pursuant to UCPR r 28.2, imputations (i) – (iii) are reasonably capable of being conveyed.
(3) Defendant’s challenges to the form of imputations (i) – (iii) dismissed.
(4) Defendant pay plaintiff’s costs.
Catchwords:
TORT – defamation – Facebook post claiming the plaintiff had not paid his employees superannuation - whether action liable to be stayed or dismissed as an abuse of process on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – challenge to form and capacity of imputations
[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
AGLC
Gan v Zadravic [2021] NSWDC 533
Case
[2021] NSWDC 533
Decision Date
CaseChat Overview and Summary
In the case of Gan v Zadravic, the plaintiff, Mr. Gan, sought damages for defamation based on a Facebook post made by the defendant, Mr. Zadravic. The post in question alleged that Mr. Gan had failed to pay his employees superannuation, an assertion that Mr. Gan claimed was false and defamatory. The matter was brought before the court to determine whether the case should be dismissed or stayed due to the perceived imbalance between the legal costs and court resources required to resolve the claim and the interest at stake.
The primary legal issues before the court involved whether the plaintiff's defamation action was an abuse of process and if the imputations made in the Facebook post were reasonably capable of being conveyed. The defendant argued that the action should be dismissed or stayed as it would require significant legal and court resources to address a matter of relatively minor importance. Additionally, the defendant contested the form and capacity of the imputations, asserting that they were not reasonably capable of being understood or conveyed as alleged.
The court found that the plaintiff's action was not an abuse of process and dismissed the defendant's application for summary dismissal. The imputations made in the Facebook post were deemed reasonably capable of being conveyed, and the challenges to their form were rejected. Consequently, the court ordered that the defendant pay the plaintiff's costs.
Orders
Orders of the court
Order:
(1) Defendant’s application for summary dismissal of these proceedings pursuant to UCPR rr 13.4(1)(c) and 14.28 is dismissed.
(2) Pursuant to UCPR r 28.2, imputations (i) – (iii) are reasonably capable of being conveyed.
(3) Defendant’s challenges to the form of imputations (i) – (iii) dismissed.