Hewit v Galletta - [2017] NSWDC 129

District Court

New South Wales

Amendment notes

Medium Neutral Citation: Hewit v Galletta [2017] NSWDC 129
Hearing dates: 5 May 2017
Date of orders: 05 May 2017
Decision date: 05 May 2017
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Amended Summons dismissed.
(2) Plaintiff to pay the defendant’s costs.
(3) Notice of motion is dismissed with costs, noting that the Amended Summons has been struck out and any application for summary judgment in those circumstances is a futility.

Catchwords: TORT – plaintiff seeks preliminary discovery for cause of action described as “declaration of right” – defendant seeks summary disposal of proceedings – plaintiff already provided with the documents he sought – no evidence of inquiry – claim for preliminary discovery misconceived – summons dimissed
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62 and 144(2)
Uniform Civil Procedure Rules 2005 (NSW), rr 4.5, 5.3, 14.30 and 18.4
Cases Cited: Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506
Mahommed v Unicomb [2017] NSWCA 65
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953
Category: Principal judgment
Parties: Plaintiff: Alan Hewit
Defendant: Anthony J Galletta
Representation:
Plaintiff: In person

Counsel:
Defendant: Mr D A Robertson
Solicitors
Defendant: DCE Lawyers

File Number(s): 2016/313523
Publication restriction: None

Judgment

HER HONOUR: The plaintiff, by Amended Summons filed on 9 December 2016 (the original summons having been filed on 20 October 2016), seeks preliminary discovery in proceedings where the relief claimed is described as a “Declaration of Right”. The Amended Summons names a Mr Galletta as the first defendant, a Ms Terri Birger as the second defendant and a Ms Jennifer Dempsey as the third defendant.
I note, before going forward, that contrary to r 4.5 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) the address for service which is given by the plaintiff is a post office box, which is unacceptable, but nothing turns on this.
The Summons, in its original form, sought seven orders and an alternative order. Only order (1) was for preliminary discovery. The remaining orders may be taken, I assume, to have been abandoned. Not only have I not been addressed on them but the Amended Summons appears to replace the original Summons.
The cause of action is one of defamation. This appears to me to be the case not only because orders (3) to (7) of the Summons indicate this, but also because the plaintiff has indicated that he has attempted to file a Statement of Claim in lieu of a Summons seeking to set out this cause of action and appropriate relief. The Statement of Claim, which I have seen and forms part of the affidavit, which is Exhibit D, is asserted by the defendant to have some limitation issues but, as I am dealing only with the Amended Summons at this issue, I do not need to deal with those matters further.
The nature of the application before the Court is…

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 Hewit v Galletta

Details

AGLC: Hewit v Galletta [2017] NSWDC 129
Case: [2017] NSWDC 129
Decision Date: 05 May 2017

CaseChat Overview and Summary

The case of Hewit v Galletta involved a dispute where the plaintiff sought preliminary discovery under a declaration of right. The defendant, Galletta, sought a summary disposal of the proceedings, arguing that the plaintiff had already been provided with the documents he sought and had not demonstrated any inquiry. The matter was heard in the relevant court, which was required to determine whether the plaintiff’s claim for preliminary discovery was justified under the circumstances.

The legal issue before the court was whether the plaintiff's claim for preliminary discovery was appropriate given that he had already been provided with the requested documents. The court had to consider whether there was a legitimate basis for the plaintiff to pursue further discovery, particularly when there was no evidence that he had made any inquiry into the documents he had already received. The defendant argued that the plaintiff's claim was misconceived and that the proceedings should be summarily disposed of due to the futility of the application.

In delivering its judgment, the court held that the plaintiff's claim for preliminary discovery was misconceived. The court found that the plaintiff had already been provided with the documents he sought and had not shown any evidence of inquiry into those documents. Consequently, the summons for preliminary discovery was dismissed. Additionally, the court ordered that the plaintiff pay the defendant’s costs. The court also dismissed the notice of motion as a futility, given that the Amended Summons had already been struck out.

The final orders of the court were as follows: the Amended Summons was dismissed, the plaintiff was ordered to pay the defendant's costs, and the notice of motion was dismissed with costs. This decision underscores the importance of demonstrating a legitimate basis for any application for discovery and the consequences of pursuing misconceived claims.

Orders

Orders of the court

(1) Amended Summons dismissed.

(2) Plaintiff to pay the defendant’s costs.

(3) Notice of motion is dismissed with costs, noting that the Amended Summons has been struck out and any application for summary judgment in those circumstances is a futility.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Hewit v Galletta [2017] NSWDC 129
Hearing dates:	5 May 2017
Date of orders:	05 May 2017
Decision date:	05 May 2017
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Amended Summons dismissed. (2) Plaintiff to pay the defendant’s costs. (3) Notice of motion is dismissed with costs, noting that the Amended Summons has been struck out and any application for summary judgment in those circumstances is a futility.
Catchwords:	TORT – plaintiff seeks preliminary discovery for cause of action described as “declaration of right” – defendant seeks summary disposal of proceedings – plaintiff already provided with the documents he sought – no evidence of inquiry – claim for preliminary discovery misconceived – summons dimissed
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 and 144(2) Uniform Civil Procedure Rules 2005 (NSW), rr 4.5, 5.3, 14.30 and 18.4
Cases Cited:	Hatfield v TCN Channel Nine Pty Ltd (2010) 77 NSWLR 506 Mahommed v Unicomb [2017] NSWCA 65 Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175 Van Garderen v Channel Seven Melbourne Pty Ltd [2016] VCC 953
Category:	Principal judgment
Parties:	Plaintiff: Alan Hewit Defendant: Anthony J Galletta
Representation:	Plaintiff: In person Counsel: Defendant: Mr D A Robertson Solicitors Defendant: DCE Lawyers
File Number(s):	2016/313523
Publication restriction:	None