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: W1Representation: Counsel:
Solicitors:
First Defendant: Mr N Olson
Second Defendant: Ms K Boyd
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
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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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- AGLC
- M1 v R1 [2022] NSWDC 409
- Case
- [2022] NSWDC 409
- Decision Date
CaseChat Overview and Summary
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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