Gary Leech v John Silvester - [2012] NSWSC 1367

Supreme Court

New South Wales

Medium Neutral Citation: Gary Leech v John Silvester & Ors [2012] NSWSC 1367
Hearing dates: 05/11/12
Decision date: 14 November 2012
Before: Nicholas J
Decision:
Par 34

Catchwords: DEFAMATION - pleadings - defamatory publication a book - particulars sought of identity of persons to whom published - sufficiency of particulars - strike-out application - whether reasonable cause of action disclosed - whether proceedings an abuse of process
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Agar v Hyde [2000] HCA 41; (2000) 201 CLR 552
Brimson v Rocla Concrete Pipes Ltd [1982] 2 NSWLR 937
David v Abdishou [2012] NSWCA 109
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Hayson v John Fairfax Publications Pty Ltd [2007] NSWSC 763
Jameel v Dow Jones & Co Inc [2005] QB 946
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188
Ollis v New South Wales Crime Commission [2007] NSWCA 311; (2007) 177 A Crim R 306
Sims v Wran [1984] 1 NSWLR 317
Category: Interlocutory applications
Parties: Gary Leech - plaintiff
John Silvester - first defendant
Leonard Andrew Rule - second defendant
Sly Ink Pty Ltd - third defendant
Floradale Productions Pty Ltd - fourth defendant
Representation: Counsel:
K P Smark SC - plaintiff
M Richardson - defendants
Solicitors:
Kalantzis Lawyers - plaintiff
Johnson Winter & Slattery - defendants

File Number(s): 12/131699

Judgment

By notice of motion filed 5 November 2012 the defendants seek dismissal of the proceedings under Uniform Civil Procedure Rules 2005 Pt 13, r 13.4 as disclosing no reasonable cause of action, or as an abuse of process, alternatively, that the statement of claim be struck out under r 14.28 as disclosing no reasonable cause of action, or as an abuse of process.

By statement of claim filed 26 April 2012 the plaintiff has sued the defendants for the publication on about 1 January 2010 and thereafter of the matter contained in pp 186 and 187 of the book entitled "Underbelly - The Golden Mile" (the book). Particulars of publication pleaded under r 15.19(1) are as follows:

"(a) The first defendant wrote the Book or parts of the Book.

(b) The second defendant wrote the Book or parts of the Book.

(c) The third defendant published the Book.

(d) The fourth defendant published the Book.

(e) The Book was published by the defendants and made available for sale in New South Wales and in every other State and Territory of Australia.

(f) The Book was still available to be purchased from bookstores throughout Australia and over the internet in about August 2011.

(g) As at January 2012 at least 48,000 copies of the Book had been sold throughout Australia.

(h) Further particulars of the extent of publication of the Book will be provided after discovery and interrogatories.

The defamatory imputations relied upon are pleaded in par 4.…

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 Gary Leech v John Silvester

Details

AGLC: Gary Leech v John Silvester [2012] NSWSC 1367
Case: [2012] NSWSC 1367
Decision Date: 14 November 2012

CaseChat Overview and Summary

The matter before the court involved a defamation claim brought by Gary Leech against John Silvester, the defendant. The dispute centred on the publication of defamatory material in a book authored by Silvester. Leech sought particulars of the identity of individuals to whom the defamatory content was allegedly disseminated. The application to strike out the proceedings was based on the argument that the particulars provided by Leech were insufficient and that the proceedings constituted an abuse of process.

The court was required to determine whether the particulars provided by Leech were sufficient to disclose a reasonable cause of action and whether the proceedings were an abuse of process. Specifically, the court needed to assess whether the particulars were adequate to enable the defendant to respond effectively to the claims made and whether the proceedings were being used for an improper purpose, such as harassment.

In addressing these issues, the court found that the particulars provided by Leech were insufficient as they did not specify the identity of the individuals to whom the defamatory material was allegedly published. The court held that without these details, the defendant could not adequately respond to the claims. Additionally, the court concluded that the proceedings were an abuse of process because the lack of particulars prevented the defendant from effectively defending himself. Consequently, the court granted the application to strike out the proceedings.

Orders