District Court
New South Wales
Medium Neutral Citation: M v Public Guardian [2017] NSWDC 253 Hearing dates: 24 August 2017 Date of orders: 24 August 2017 Decision date: 14 September 2017 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to r 12.1 Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to discontinue these proceedings upon the following conditions: (a) The plaintiff is to pay the defendant’s costs of these proceedings (including this application), which are assessed on a gross sum costs order basis, of $8,000. (b) The plaintiff is precluded from bringing any further proceedings for defamation or actions for similar reputation based relief based upon the publications identified in the statement of claim as actionable.
Catchwords: TORT – defamation – application for leave to discontinue – whether discontinuance should be permitted on terms – costs – application for gross sum costs order Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 61 and 98
Defamation Act 2005 (NSW), s 23
Guardianship Act 1987 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), r 12.1Cases Cited: Aquaqueen International Pty Limited [2015] NSWSC 500
Bobb v Wombat Securities Pty Ltd [2013] NSWSC 863
Cummins v Australian Jockey Club Ltd [2009] NSWSC 254
Dow Jones & Co Inc v Jameel [2005] EWCA Civ 75; [2005] QB 46
Emmerton v University of Sydney [1970] 2 NSWR 633
Fox v Star Newspaper Co Ltd [1898] 1 QB 636; [1900] AC 19
Ghosh v Miller [2016] NSWSC 430
Ghosh v Miller (No 2) [2017] NSWSC 791
Ghosh v Miller (No 4) [2016] NSWSC 1710
Ghosh v NBN Ltd and Ors [2014] QCA 53
Ghosh v Nine Digital Pty Ltd [2017] NSWCA 90
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Harrison v Schipp (2002) 54 NSWLR 738
Packer v Meagher [1984] 3 NSWLR 486
Pingel v Toowoomba Newspapers Pty Ltd [2010] QCA 175
Plassas v Person (No 2) [2016] NSWSC 1515
Re Palladium Consulting Pty Ltd [2013] NSWSC 92
Starr-Diamond v Diamond (No 4) [2013] NSWSC 811Category: Principal judgment Parties: Plaintiff: M
Defendant: Public GuardianRepresentation: Counsel:
Solicitors:
Plaintiff: Mr J P Capsanis (solicitor)
Defendant: Mr B P Watts (solicitor)
Plaintiff: J. P. Capsanis & Co Lawyers
Defendant: Crown Solicitor's Office (NSW)
File Number(s): 2017/51533 Publication restriction: None
Judgment
The application before the court
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These are my reasons for orders granting leave to the plaintiff to discontinue (on terms, including costs) proceedings for defamation commenced on 17 February 2017 concerning a publication or publications asserted to have been made by the defendant on or after 19 February 2016.
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The defendant is the Public Guardian. The defendant opposed the granting of leave to discontinue unless appropriate orders were made for costs (by way of a gross sum costs order) and to prevent the bringing of further proceedings by the plaintiff.
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By reason of the nature of the allegations of criminal conduct (which appear to relate to some ongoing inquiry), I have taken the precaution of anonymising the surname of the plaintiff and…
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- AGLC
- M v Public Guardian [2017] NSWDC 253
- Case
- [2017] NSWDC 253
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was whether the plaintiff's application for leave to discontinue the proceedings should be granted and, if so, what terms should be imposed. Specifically, the court needed to consider whether the plaintiff should be required to pay the defendant’s costs on a gross sum costs order basis and whether a limitation on the plaintiff’s ability to bring further proceedings based on the same publications was appropriate. The court also had to weigh the public interest in finality of disputes against the potential prejudice to the defendant if the plaintiff were allowed to discontinue the proceedings without incurring any costs.
The court granted leave for the plaintiff to discontinue the proceedings but imposed conditions to mitigate any unfairness to the defendant. The plaintiff was required to pay the defendant’s costs of the proceedings, assessed on a gross sum costs order basis, amounting to $8,000. Additionally, the plaintiff was precluded from bringing any further proceedings for defamation or similar reputation-based relief based on the publications identified in the statement of claim. The court found that these conditions were sufficient to address the defendant’s concerns and balanced the interests of both parties, allowing for the finality of the dispute while ensuring the defendant was not unduly prejudiced by the discontinuance.
The court’s orders were as follows: (1) Pursuant to rule 12.1 of the Uniform Civil Procedure Rules 2005 (NSW), the plaintiff was granted leave to discontinue the proceedings on the conditions that they pay the defendant’s costs of the proceedings, including the application, assessed on a gross sum costs order basis of $8,000, and that they be precluded from bringing any further proceedings based on the same publications.
Orders
Orders of the court
(1) Pursuant to r 12.1 Uniform Civil Procedure Rules 2005 (NSW), grant leave to the plaintiff to discontinue these proceedings upon the following conditions: (a) The plaintiff is to pay the defendant’s costs of these proceedings (including this application), which are assessed on a gross sum costs order basis, of $8,000. (b) The plaintiff is precluded from bringing any further proceedings for defamation or actions for similar reputation based relief based upon the publications identified in the statement of claim as actionable.
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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