M1 v R1

Case [2022] NSWDC 409

District Court


New South Wales

Medium Neutral Citation: M1 v R1 & Ors [2022] NSWDC 409
Hearing dates: 09 September 2022
Date of orders: 13 September 2022
Decision date: 13 September 2022
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

Order:

(1)   Summons struck out and dismissed.

(2)   Plaintiff pay defendants’ costs of this application and of the proceedings.

Catchwords:

TORT - defamation - concerns notice fails to provide particulars of serious harm or attach the matters complained of - two of the four publications produced under subpoena in proceedings in another court - plaintiff files the concerns notice (described as a “Summons”) in lieu of a statement of claim - defendants seek summary dismissal of proceedings - proceedings dismissed

Legislation Cited:

Defamation Act 2005 (NSW) ss 12A and 12B

Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Cth) r 6.36

Uniform Civil Procedure Rules 2005 (NSW)(“UCPR”) rr 6.1, 6.3(b) and 6.6

Cases Cited:

Attorney-General v Butterworth [1963] 1 QB 696

Calabro v Zappia [2010] NSWDC 127

Chapman v DPP of Western Australia [2009] WASCA 66

Clarkson v The Mandarin Club (1998) 90 FCR 354

Daryanani v Ramnani [2017] EWHC 183

David v Gabriel [2016] EWHC 2799 (QB)

Denis v Sauvageau [2022] ABCA 166

Dickens v State of New South Wales (No.3) [2018] NSWSC 485

Duncan-Tate v Strelec [2013] NSWSC 1446

Duraisamy v Sydney Trains [2019] NSWCA 269

Emanuele v Hedley (Supreme Court (ACT), Higgins J, 7 March 1997, unrep)

Goldsmith v Bissett-Powell [2022] EWHC 1591 (QB)

Harman v Secretary of State for the Home Department [1983] 1 AC 280

Hill v Bolt (1997) 28 NSWLR 329

Johnson v McArdle [2020] EWHC 644

Lachaux v Independent Print Ltd and another [2020] AC 612

Lewandowski v Lovell (Supreme Court (WA), Kennedy J, 8 March 1993, unrep

Miller v Polk (Supreme Court (NSW), Hunt J, 4 August 1985, unrep)

Newman v Whittington [2022] NSWSC 249

Riddick v Thames Mills [1977] QB 881

Rizeq v Western Australia (2017) 262 CLR 1

Ruta v Department of Work and Pensions [2022] EWHC 1535

Soriano v Societe D'Exploitation De L'Hebdomadaire Le Point SA & Anor [2022] EWHC 1763

Stone & Rolls (in liquidation) v Moore Stephens (a firm) [2010] 1 All E R 125

Tewari v Khetarpal & Ors [2022] EWHC 2066

Wilks v Qu (Ruling) [2022] VCC 620

Yeshiva Properties No 1 Pty Ltd v Lubavitch Mazal Pty Ltd [2003] NSWSC 775

Category:Procedural rulings
Parties:

Plaintiff: M1

Defendants:
First Defendant: R1
Second Defendant: W1
Representation:

Counsel:
First Defendant: Mr N Olson
Second Defendant: Ms K Boyd

Solicitors:
First Defendant: BlackBay Lawyers
Second Defendant: Moray & Agnew Lawyers
File Number(s): 2022/00189617
Publication restriction: Court Suppression and Non-publication Orders Act 2010 (NSW)

Judgment

The plaintiff’s claims for defamation

  1. The plaintiff and the first defendant, who were formerly married, are currently parties in proceedings before the Federal Circuit and Family Court of Australia. For this reason, the names of the parties have been anonymised pursuant to Court Suppression and Non-publication Orders Act 2010 (NSW).…

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Details
AGLC
M1 v R1 [2022] NSWDC 409
Case
[2022] NSWDC 409
Decision Date

CaseChat Overview and Summary

M1 filed a summons against R1 in the Federal Court of Australia, alleging defamation arising from four publications. The summons was filed in lieu of a statement of claim, and M1 sought to serve it without providing particulars of the serious harm alleged or attaching the matters complained of, as required by the Federal Court Rules. Two of the four publications had already been produced under subpoena in proceedings in the Federal Circuit Court. R1 sought summary dismissal of M1's summons on the basis that it failed to comply with the procedural requirements set out in the Federal Court Rules. The court was required to determine whether the summons complied with the necessary procedural requirements, and if not, whether the failure was so egregious as to warrant summary dismissal.

The court held that the summons failed to provide particulars of the serious harm alleged and did not attach the matters complained of, as required by the Federal Court Rules. The court found that the failure to comply with these requirements was not trivial, and the summons did not set out a cause of action that could be understood by the defendants. The court held that the failure to comply with the procedural requirements was so egregious that it warranted summary dismissal of the summons. The court further held that the plaintiff's failure to provide particulars of the serious harm alleged and to attach the matters complained of was fatal to the summons. The court noted that the fact that two of the publications had already been produced under subpoena in other proceedings did not assist M1 in this case.

The court ordered that the summons be struck out and dismissed. The court further ordered that M1 pay R1's costs of the application and of the proceedings. The court found that the defendants were entitled to summary dismissal and costs as the summons failed to comply with the necessary procedural requirements, and the failure was so egregious that it warranted dismissal. The court held that the failure to provide particulars of the serious harm alleged and to attach the matters complained of was fatal to the summons, and the defendants were entitled to costs.

Orders

Orders of the court

Order:

(1) Summons struck out and dismissed.

(2) Plaintiff pay defendants’ costs of this application and of the proceedings.

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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