Gazecki v Stokes - [2022] NSWSC 1248

Supreme Court

New South Wales

Medium Neutral Citation: Gazecki v Stokes [2022] NSWSC 1248
Hearing dates: 04 April 2022
Date of orders: 15 September 2022
Decision date: 15 September 2022
Jurisdiction: Common Law
Before: Rothman J
Decision:
(1)   The plaintiff has leave to amend the Statement of Claim to include further imputations, subject to the qualifications set forth in the reasons for judgment;
(2)   Order that the defendant answer the interrogatories extracted in the reasons for judgment herein;
(3)   Costs will be costs in the cause.

Catchwords:
DEFAMATION – leave to file Amended Statement of Claim – objections on basis of lack of substantial difference in some imputations – use of term “un-Australian” – some imputations not capable of arising from alleged publications – qualified leave to amend granted
CIVIL PROCEDURE – interrogatories – meaning of “necessary”

Legislation Cited:
Civil Procedure Act 2005 (NSW), s 56
Uniform Civil Procedure Rules 2005 (NSW), Pt 14, r 19.1, 22.1

Cases Cited:
Boyle v Downs [1979] 1 NSWLR 192
Pelechowski v Registrar, Court of Appeal (NSW) (1999) 198 CLR 435; [1999] HCA 19
Schutt v Queenan [2000] NSWCA 341

Category: Procedural rulings
Parties: John Gazecki (Plaintiff)
Robert Gordon Stokes (Defendant)
Representation:
Counsel:
R Rasmussen (Plaintiff)
T Senior (Defendant)
Solicitors:
Brydens Lawyers Pty Ltd (Plaintiff)
Makinson d’Apice Lawyers (Defendant)

File Number(s): 2021/319290

JUDGMENT

HIS HONOUR: By Statement of Claim, filed 10 November 2021, the plaintiff, John Gazecki, seeks damages against the defendant, Robert Gordon Stokes, the Minister for Planning and Public Spaces for the State of New South Wales. The plaintiff seeks to amend the Statement of Claim at a time that is more than 28 days from the date of its filing and, as a consequence, requires leave of the Court.^[1] The defendant opposes leave.
1. Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”), r 19.1.
On 7 December 2021, the defendant wrote to the plaintiff, in accordance with the practice in the Defamation List, setting out the defendant’s objections to the Statement of Claim and also requesting further and better particulars. On 8 February 2022, the plaintiff emailed the defendant’s solicitor, advising that an Amended Statement of Claim would be sought to be filed and the plaintiff would be serving interrogatories, copies of which were sent by letter to the defendant on 24 February 2022.The defendant opposes the serving of the interrogatories.
The proposed Amended Statement of Claim (hereinafter “the ASOC”) before the Court is not the same document as was sent to the defendant on 24 February 2022. The plaintiff, in submissions dated 30 March 2022, included further amendments to the Statement of Claim. It is those further amendments, in the Amended Statement of Claim, and the Interrogatories included in the Joint Court Book which the Court considers in these reasons.

Pleadings

The plaintiff is the operator of a business known as Polo Events. As an agent of Polo Events, the plaintiff prepared and lodged a proposal with Waverley Council for an “event” entitled “Amalfi Beach Club”.…

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 Gazecki v Stokes

Details

AGLC: Gazecki v Stokes [2022] NSWSC 1248
Case: [2022] NSWSC 1248
Decision Date: 15 September 2022

CaseChat Overview and Summary

The case of Gazecki v Stokes dealt with issues of defamation, specifically the plaintiff's application for leave to file an amended statement of claim. The plaintiff, Gazecki, sought to amend the statement of claim on the grounds that the defendant, Stokes, had defamed him. The Federal Court was tasked with deciding whether to grant the plaintiff's application, considering the objections raised by Stokes regarding the lack of substantial difference between the original and proposed statements of claim, and the use of the term "un-Australian." Additionally, the court addressed whether certain imputations could be reasonably inferred from the alleged publications.

The primary legal issue was whether the plaintiff's proposed amendments introduced new imputations that were substantially different from those in the original statement of claim. The court considered the objections raised by Stokes, focusing on whether the term "un-Australian" introduced a new and substantially different imputation. The court also examined whether some of the proposed imputations could not reasonably be inferred from the alleged publications. The court balanced the plaintiff's right to amend the statement of claim against the defendant's right to be protected from unfounded claims.

The court granted qualified leave to amend, finding that while some of the proposed imputations were not substantially different from those in the original statement of claim, others could be reasonably inferred from the alleged publications. The court held that the term "un-Australian" introduced a new and substantially different imputation, but it was not sufficient to defeat the plaintiff's application outright. The court also noted that the use of the term "necessary" in the context of interrogatories required a practical assessment of whether the information sought was essential for the fair conduct of the proceedings. The court concluded that, while some objections were valid, the plaintiff's application should be granted with conditions to ensure the amendments were both fair and necessary for the resolution of the case.

The final orders of the court included granting qualified leave to the plaintiff to file an amended statement of claim, with specific conditions to ensure the amendments were both fair and necessary. The court required the plaintiff to provide further particulars and to address the objections raised by the defendant. The court also set a deadline for the completion of the amended statement of claim and directed the parties to proceed with the discovery process, including the use of interrogatories, within the parameters set by the court.

Orders