Lahoud v Hooper - [2015] NSWSC 1026

Supreme Court

New South Wales

Medium Neutral Citation: Lahoud v Hooper [2015] NSWSC 1026
Hearing dates: 20 July 2015
Decision date: 29 July 2015
Jurisdiction: Common Law
Before: Adamson J
Decision:
1. Dismiss the summons.
2. Unless an application is made to my Associate in writing within seven days hereof, order the plaintiff to pay the defendant’s costs of the proceedings.
Catchwords: PRACTICE AND PROCEDURE – preliminary discovery – where seeking to identify potential defendant in proposed defamation claim - whether reasonable inquires made prior to seeking discovery orders – no inquiry made of any of three persons suspected – UCPR 5.2(1)(a) not satisfied – summons dismissed
Legislation Cited: Civil Procedure Act 2005 (NSW), Pt 6, Div 1
Defamation Act 2005 (NSW), ss 14, 15
Environmental Planning and Assessment Act 1979 (NSW), ss 94, 96
Privacy Act 1988 (Cth)
Road Transport (Vehicle Registration) Act 1997 (NSW), s 11
Uniform Civil Procedure Rules 2005 (NSW), r 5.2
Cases Cited: Blandford v Fox (1944) 45 SR (NSW) 241
H & H Security Pty Ltd v Toliopoulos (NSWSC, 17 May 1995, unreported)
Jones v Dunkel (1959) 101 CLR 298
Liu v The Age Company [2010] NSWSC 1176
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Nominal Defendant v Meakes [2012] NSWCA 66
Roads and Traffic Authority of New South Wales v Australian National Car Parks [2007] NSWCA 114
Roads and Traffic Authority of New South Wales v Care Park Pty Ltd [2012] NSWCA 35
Slinn v Nominal Defendant (1964) 112 CLR 334
Steele v Mirror Newspapers [1974] 2 NSWLR 348
Stewart v Miller [1979] 2 NSWLR 128
Category: Principal judgment
Parties: Victor Lahoud (Plaintiff)
John Hooper (Defendant)
Representation:
Counsel:
J Hmelnitsky SC/MJ Lewis (Plaintiff)
MR Elliott (Defendant)
Solicitors:
McLachlan Thorpe Partners (Plaintiff)
Minter Ellison (Defendant)

File Number(s): 2015/20925

Judgment

Introduction

The plaintiff seeks an order for preliminary discovery against the defendant in order to ascertain the name of the person who communicated with the defendant in October 2014 concerning damage to a building in which the plaintiff has an interest.

The facts

Background

The plaintiff is a developer. He conducts his business through various companies, including Castle Constructions Pty Ltd (Castle Constructions) and Castlenorth Pty Ltd (Castlenorth), of which he is sole director.
Some years ago he developed a multi-storeyed building on Sailors Bay Road, Northbridge (Castle Garden) that contains both residential and commercial units. The six commercial units are located on the ground floor. There are 32 residential units, which are located on the four floors above. There is a separate lift to the residential units, which can only be accessed with a pass.
Castle Constructions owns seven residential units in Castle Garden. The plaintiff used to live in one of the residential units but moved out in early 2014. Since that time, Castle Constructions has leased out the residential units it owns in the building. The plaintiff’s younger brother lives in one of these units.
Castle Constructions also owns four commercial units in the building, including lots 34 and 38.…

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 Lahoud v Hooper

Details

AGLC: Lahoud v Hooper [2015] NSWSC 1026
Case: [2015] NSWSC 1026
Decision Date: 29 July 2015

CaseChat Overview and Summary

The case of Lahoud v Hooper was brought before the court by the plaintiff, Mr Lahoud, against the defendant, Mr Hooper. Mr Lahoud sought to identify Mr Hooper as a potential defendant in a proposed defamation claim. The dispute centred on whether Mr Lahoud had made reasonable inquiries to ascertain Mr Hooper's identity prior to seeking discovery orders. Specifically, the court had to determine if Mr Lahoud had complied with the requirements of UCPR 5.2(1)(a) which necessitates that a party make reasonable inquiries before seeking discovery. Mr Lahoud had suspected that Mr Hooper was the person he was seeking, but had not made any inquiries to confirm this suspicion.

The primary legal issue before the court was whether Mr Lahoud had satisfied the requirement of making reasonable inquiries as per UCPR 5.2(1)(a). The court considered whether Mr Lahoud had conducted any investigation into the three individuals he suspected might be the person he was seeking. Given that no inquiries were made to any of the three suspected persons, the court needed to determine if this constituted a reasonable inquiry. The court examined the extent of the steps taken by Mr Lahoud to identify Mr Hooper and whether these steps were sufficient to meet the legal standard.

The court concluded that Mr Lahoud had not made reasonable inquiries to identify Mr Hooper before seeking discovery orders. The court found that since no inquiries were made to any of the three individuals suspected, the requirement under UCPR 5.2(1)(a) was not satisfied. Consequently, the summons for discovery was dismissed. The court held that for Mr Lahoud to have complied with the rule, he would have needed to conduct some form of investigation to ascertain whether any of the three suspected persons was indeed Mr Hooper. The lack of such inquiry rendered the application for discovery orders invalid.

Orders