Malouf v Prince

[2008] NSWCA 153

New South Wales

Court of Appeal

CITATION:	Malouf v Prince [2008] NSWCA 153 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	13 June 2008
JUDGMENT OF:	Beazley JA at 1
EX TEMPORE JUDGMENT DATE:	13 June 2008
DECISION:	See para [26]
PARTIES:	John Malouf (Appellant) Stephen Thomas Prince (Respondent)
FILE NUMBER(S):	CA 40178/08
COUNSEL:	A Dawson (Appellant) R Weaver (Respondent)
SOLICITORS:	Attwood Marshall Lawyers (Qld) (Appellant)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	24/2007
LOWER COURT JUDICIAL OFFICER:	McLoughlin DCJ
LOWER COURT DATE OF DECISION:	13 June 2008

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CA 40178/08

BEAZLEY JA

Ex tempore 13 June 2008

John Malouf v Stephen Thomas Prince

Judgment

1 HER HONOUR: The District Court of New South Wales presently has sittings at Lismore which commenced on 10 June 2008 and are to run for the balance of that week, which is the week which finishes today, 13 June 2008, together with the week that commences on 16 June 2008 for the ensuing five days.

2 The present matter was listed in those sittings. The plaintiff applied for an adjournment of those proceedings which was refused by the trial judge, his Honour Judge McLoughlin, and his Honour made orders which included that the matter be set down for hearing on Monday 16 June 2008. His Honour also ordered mediation and further ordered that the plaintiff pay the defendant’s costs of 10 and 12 June 2008 on an indemnity basis. His Honour further directed the solicitor for the plaintiff to show cause as to why he should not indemnify the plaintiff for those costs. The reference to the dates of 10 and 12 June was a reference to the dates upon which the adjournment application proceeded before his Honour.

3 The District Court proceedings are defamation proceedings brought by the plaintiff who is an ear, nose and throat specialist against the defendant who is also an ear, nose and throat specialist. The adjournment was applied for in circumstances which were set out in a number of affidavits of Gavin John Mills, the plaintiff’s solicitor, together with an affidavit of the plaintiff. That material, together with an affidavit of Penelope Anne Newbold, the defendant’s solicitor, upon which the defendant had relied for the purposes of the adjournment application together with other correspondence, have been collected together in an affidavit of Gavin John Mills sworn 13 June 2008, which has been filed in Court today in the application before me.

4 The application before me is a Notice of Motion filed today, in which the plaintiff moves the Court for an order that the proceedings below be stayed pending the resolution of the plaintiff’s application for leave to appeal and/or appeal from the orders made by McLoughlin DCJ. The matter has come before me urgently and I have heard argument in the course of the whole of this afternoon, the matter having commenced at 2.15 pm. I am now in…