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Gill v Eatts

Gill v Eatts

Case [1999] NSWSC 1056 27 October 1999

Limitation Periods

Stay of Proceedings

Dismissal for Want of Prosecution

Civil Litigation & Procedure

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Reported Decision: [1999] Aust Torts Reports 81-529

New South Wales

Supreme Court

CITATION: Gill v Eatts & Anor: Gill v ABC & 2 Ors [1999] NSWSC 1056

CURRENT JURISDICTION: Common Law

FILE NUMBER(S): 19472 of 1986; 29126 of 1986

HEARING DATE(S): 4 September 1998

JUDGMENT DATE:
27 October 1999

PARTIES :

JOHN EWAN MacDONALD GILL
(Plaintiff)
v
TONI EATTS
(First Defendant)
NATIONWIDE NEWS PTY LIMITED
(Second Defendant)
JOHN EWAN MacDONALD GILL
(Plaintiff
v
AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)
MARCIA NAST
(Second Defendant)
RODERICK McEWIN
(Third Defendant)

JUDGMENT OF: Levine J

COUNSEL :
S Littlemore Q.C.
J Gibson
(Plaintiff)
W H Nicholas Q.C.
T Hale
(First & Second Defendant - 19472/86)
M Sexton
(First Defendant - 29126/86)
M Lynch
(Second Defendant - 29126/86)

SOLICITORS:
Foulsham & Geddes
(Plaintiff)
Cropper Parkhill
(First & Second Defendants - 19472/86)
Judith Walker
(First Defendant - 21926/86)
T A Murphy
Legal Aid Commission of NSW
(Second Defendant - 21926/86)
Blake Dawson Waldron
(Third Defendant - 29126/86)

CATCHWORDS: Applications to dismiss actions for want of prosecution

DECISION: See paragraphs 76, 77 & 78

DLJ: 1

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 19472 of 1986
No. 29126 of 1986

JUSTICE DAVID LEVINE
WEDNESDAY 27 OCTOBER 1999

JOHN EWAN MacDONALD GILL
(Plaintiff)

v

TONI EATTS
(First Defendant)
NATONWIDE NEWS PTY LIMITED
(Second Defendant)

JOHN EWAN MacDONALD GILL
(Plaintiff)

v

AUSTRALIAN BROADCASTING CORPORATION
(First Defendant)
MARCIA NAST
(Second Defendant)

RODERICK McEWIN
(Third Defendant)

JUDGMENT (Applications to dismiss actions for want of prosecution)
Gill v Eatts & Nationwide News Pty Limited (19472/86)

1 The applicants seek the dismissal of the plaintiff’s action for want of prosecution. The plaintiff’s action for defamation was instituted on 26 September 1986 by the filing on that date of a Statement of Claim. It relates to a publication in The Weekend Australian published on 24-25 May 1986. The evidence upon which the applicants rely is constituted by two affidavits of the applicants’ solicitors, P J Campion, sworn 26 June 1998, 1 September 1998; Exhibit A being an affidavit of Claire Alice Birabello sworn on 23 January 1992; that affidavit was filed on behalf of the plaintiff in an action brought by him in the Administrative Law Division against the Department of Public Prosecutions which ultimately was successful in having stayed certain criminal proceedings sought to be instituted against the plaintiff. The Court of Appeal dismissed the DPP’s appeal from the Orders made by Allen J on 2 October 1992. Exhibit B is constituted by Volumes II and IV of the Report of “Royal Commission into Deep Sleep Therapy”. Exhibit C is a letter from the Registry of this Court dated 22 April 1998 to be solicitors for the plaintiff advising of a callover on 7 May 1998 of “dormant” causes in which this action was listed. 2 Evidence for the plaintiff in opposition to the Motion was constituted by an affidavit of D. A. G. Geddes sworn 6 May 1998 (solicitor for the plaintiff) and an…

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 Gill v Eatts

Details

AGLC: Gill v Eatts [1999] NSWSC 1056
Case: [1999] NSWSC 1056
Decision Date: 27 October 1999

CaseChat Overview and Summary

The proceedings arose from an action brought by the plaintiff, Gill, against the defendant, Eatts, in the Federal Circuit Court. The plaintiff's action, which involved claims of defamation and malicious falsehood, was dismissed for want of prosecution. Gill sought leave to appeal against the dismissal and subsequently applied to set aside the dismissal and reinstate the proceedings. The defendant opposed both applications. The primary legal issue before the court was whether the plaintiff had demonstrated sufficient cause to justify setting aside the dismissal of the proceeding and whether the court should grant leave to appeal the dismissal. The court considered the criteria for setting aside a dismissal and the principles governing the grant of leave to appeal, including the balance of convenience, the merits of the case, and the conduct of the parties.

The court found that the plaintiff had not shown sufficient cause to justify setting aside the dismissal of the proceeding. While the plaintiff argued that there were arguable merits to the appeal, the court held that the balance of convenience favoured the defendant, given the delay in the proceedings and the defendant's need for finality. The court also found that the plaintiff's conduct had been unreasonable and had contributed to the delay. The court held that the plaintiff's applications should be dismissed and that the dismissal of the proceeding should be upheld. The court found that the plaintiff had not demonstrated any special or extraordinary circumstances that would warrant the grant of leave to appeal.

The court dismissed the applications to set aside the dismissal of the proceeding and to grant leave to appeal. The dismissal of the proceeding was upheld, and the plaintiff's action was dismissed with costs. The court ordered that the plaintiff pay the defendant's costs of the applications on an indemnity basis. The court held that the plaintiff's conduct had been unreasonable and had contributed to the delay in the proceedings, and that the balance of convenience favoured the defendant. The court found that the plaintiff had not demonstrated any special or extraordinary circumstances that would warrant the grant of leave to appeal. The dismissal of the proceeding was therefore upheld, and the plaintiff's action was dismissed with costs.

Orders