Graham v Powell (No 2) - [2013] NSWSC 2026

Supreme Court

New South Wales

Medium Neutral Citation: Graham v Powell (No 2) [2013] NSWSC 2026
Hearing dates: 13 December 2013
Decision date: 13 December 2013
Before: McCallum J
Decision:
Defendant's application for a stay of the plaintiff's action rejected; amended defence filed 2 October 2013 struck out pursuant to rule 14.28 of the Uniform Civil Procedure Rules as having a tendency to cause prejudice, embarrassment or delay in the proceedings; prayer two in the plaintiff's notice of motion filed 30 October 2013 stood over for further determination in light of any further amended defence filed by the defendant; defendant ordered to pay the plaintiff's costs of the hearing today, such costs to be assessed on an indemnity basis but not to be assessed and payable forthwith; defendant referred to the Registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance in the settling of any further amended defence.

Catchwords: DEFAMATION - concurrent criminal proceedings commenced against plaintiff by defendant as private informant - whether plaintiff's action in defamation should be stayed pending determination of the criminal proceedings - form of defence drafted by defendant without legal assistance - whether liable to be struck out - appropriateness of referral for pro bono assistance to settle defence.
Legislation Cited: Uniform Civil Procedure Rules 2005
Cases Cited: Dank v Cronulla-Sutherland District Rugby League Football Club (No 2) [2013] NSWSC 1531
Fiduciary Ltd v Morningstar Research Pty Ltd [2002] NSWSC 432; (2002) 55 NSWLR 1
Sporting Shooters Association v Judge [2013] NSWSC 1783
Wolf v State of New South Wales [2013] NSWSC 1800
Category: Interlocutory applications
Parties: Richard David Graham (plaintiff)
Allan William Powell (defendant)
Representation: Counsel:
M Richardson (plaintiff)
Defendant self-represented
Solicitors:
Thomsons Lawyers (plaintiff)

File Number(s): 2013/182130
Publication restriction: None

Judgment

HER HONOUR: These are proceedings for defamation commenced by Mr Richard Graham against Mr Allan Powell arising out of a series of items posted on websites allegedly controlled or operated by Mr Powell.

The plaintiff is represented by an experienced and able solicitor and an experienced and able barrister who is one of the regular practitioners in the specialist defamation list. The defendant is unrepresented.

On 2 September 2013 I acceded to an application by the plaintiff to have the defence, which had evidently been drawn by Mr Powell himself without the benefit of legal advice, struck out. The order I made was that the defence be struck out with leave to re-plead. I directed the defendant to file and serve any amended defence within 28 days.

On 30 September 2013 the defendant served an unsealed amended defence which was followed up in verified form by facsimile on 1 October 2013. That document was filed on 2 October 2013. Although it was not served in sealed form on the plaintiff, no point is taken in that respect.

The plaintiff's solicitors responded to the amended defence with a carefully drawn letter pointing out a number of difficulties that remained with the form of the…

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 Graham v Powell (No 2)

Details

AGLC: Graham v Powell (No 2) [2013] NSWSC 2026
Case: [2013] NSWSC 2026
Decision Date: 13 December 2013

CaseChat Overview and Summary

In the matter of Graham v Powell (No 2), the plaintiff sought to pursue a defamation claim against the defendant, who had commenced criminal proceedings against the plaintiff in a private capacity. The central issue before the court was whether the defamation action should be stayed pending the resolution of the criminal proceedings. Additionally, the court considered the appropriateness of striking out the defendant's defence, which was drafted without legal assistance, and whether the defendant should be referred for pro bono assistance to properly prepare their defence.

The court examined the balance of convenience and the need to avoid duplication of proceedings. It acknowledged the potential for the defamation action to prejudice the criminal proceedings if they proceeded concurrently. However, the court also recognised the importance of allowing the defamation claim to proceed, as it involved distinct legal and factual issues. The court concluded that, given the differences between the defamation and criminal proceedings, it was not in the interests of justice to stay the defamation action pending the criminal case. The court emphasised that each proceeding should be determined on its own merits, and that the defamation action could proceed without undue prejudice to the criminal proceedings.

Regarding the defendant's defence, the court noted that while the absence of legal assistance in drafting the defence was concerning, it did not automatically warrant striking out the defence. The court acknowledged the defendant's right to a fair hearing and the potential for pro bono assistance to provide the necessary support for the defendant to properly defend the action. The court considered it appropriate to refer the defendant for pro bono assistance to ensure that the defence was adequately prepared and presented. This approach aimed to balance the need for procedural fairness with the defendant's inability to afford legal representation.

The court ordered that the defamation action should proceed concurrently with the criminal proceedings. It also directed that the defendant be referred for pro bono assistance to facilitate the proper preparation and presentation of their defence. This outcome aimed to ensure that the defendant's rights were protected while also maintaining the efficiency and fairness of the judicial process.

Orders