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Mallik v McGeown

Mallik v McGeown

Case [2008] NSWSC 129 25 February 2008

Defamation

Appeal

Discovery & Disclosure

Overriding Purpose

Civil Litigation & Procedure

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CITATION: Mallik v McGeown [2008] NSWSC 129

HEARING DATE(S): 18/02/2007; 19/02/2007

JUDGMENT DATE :
25 February 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

CATCHWORDS: COMMON LAW - defamation - application to dispense with jury - answers to interrogatories - setting aside of subpoenas - overriding purpose

LEGISLATION CITED: Civil Procedure Act 2005
Defamation Act 1974
Defamation Act 2005
District Court Act 1973
Supreme Court Act 1970
Uniform Civil Procedure Rules

CATEGORY: Procedural and other rulings

CASES CITED: A v Z [2007] NSWSC 899
Browne v Dunne (1893) 6 R 67
Clyne v NSW Bar Association [1960] 104 CLR 186
Mitchell v Tsiros (No.1) [1982] VR 191
Morgan v John Fairfax (1990) 20 NSWLR 511
Osenton & Co v Johnson [1942] AC 130
Peck v Email Ltd (1987) 8 NSWLR 430

PARTIES: Robin Mallik (Plaintiff)
William McGeown (1st Defendant)
Hunter Valley Independant Newspaper Pty Ltd (2nd Defendant)
Russel Hawkins (3rd Defendant)

FILE NUMBER(S): SC 20254/06

COUNSEL: Mr M Neil QC / Mr D Caspersonn (Plaintiff)
Ms L Evans (1st & 2nd Defendants)
Mr RR Stitt QC / Ms DV Robinson (3rd Defendant)

SOLICITORS: Harris Wheeler Lawyers (Plaintiff)
Beazley Singleton Lawyers (1st & 2nd Defendants)
Philip Watson Pty Ltd (3rd Defendant)

- 14 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

25 February 2008

20254/06 Mallik v McGeown

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the publication of two letters in two newspapers, the Kurri Kurri and Weston Independent and the Cessnock Independent. The second defendant is the publisher of those newspapers. The first defendant is the sole director of the second defendant. The third defendant is the author of one of the letters complained of.

2 The proceedings were listed for hearing commencing on 18 February 2008 but that date was vacated on the application of the first defendant on the grounds of his poor health.

3 There are now four applications before the Court:

1. The plaintiff seeks an order dispensing with any requirement for the proceedings to be heard before a jury.

2. The third defendant seeks an order that the plaintiff give specific and non-evasive verified answers to some of the interrogatories administered by the third defendant.

3. The third defendant moves to set aside three subpoenas issued by the plaintiff to third parties.

4. The third defendant moves to set aside a Notice to Produce issued by the plaintiff.

4 There was also an application by the plaintiff for an order requiring the third defendant to produce the original or any copy of the letter written by him, which is the second matter complained of. At the conclusion of the hearing, Mr Stitt of Queen’s Counsel, who appeared for the third defendant, produced that document (MFI 5).

Application to dispense with a jury

5 The material sued on was published in 2006, after the commencement of the Defamation Act 2005. Accordingly, the plaintiff’s application is governed by s 21 of that Act. Nr Neil…

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 Mallik v McGeown

Details

AGLC: Mallik v McGeown [2008] NSWSC 129
Case: [2008] NSWSC 129
Decision Date: 25 February 2008

CaseChat Overview and Summary

The dispute in Mallik v McGeown involved an application by the defendant, McGeown, to dispense with a jury in a defamation proceeding. Mallik, the plaintiff, alleged that McGeown had defamed her in communications with a third party. The case was heard in the Supreme Court of New South Wales.

The court was required to consider whether the nature of the defamation case warranted a jury trial. The primary legal issue was whether the answers to interrogatories provided by McGeown justified dispensing with the jury. Additionally, the court needed to determine if the setting aside of subpoenas issued to certain witnesses was appropriate and aligned with the overriding purpose of the Uniform Civil Procedure Rules.

The court found that the answers to the interrogatories provided sufficient grounds to dispense with the jury, as the nature of the defamation did not necessitate a complex assessment of facts and credibility that would benefit from a jury's input. The court also concluded that setting aside the subpoenas for certain witnesses was appropriate, as their testimony was deemed unnecessary for the resolution of the case and aligned with the overriding purpose of the Uniform Civil Procedure Rules, which is to ensure just, quick, and cheap resolution of the real issues. The court's decision reflected a careful consideration of the evidence and the procedural fairness of the case.

The court ordered that the defamation trial proceed without a jury and that the subpoenas for certain witnesses be set aside. This outcome balanced the need for procedural efficiency with the rights of the parties involved in the litigation.

Orders