Massarani v Kriz

Case [2020] NSWCA 252

Court of Appeal


Supreme Court


New South Wales

  • Summary available
Medium Neutral Citation: Massarani v Kriz [2020] NSWCA 252
Hearing dates: 2 July 2020
Decision date: 13 October 2020
Before: Basten JA at [1];
Leeming JA at [2];
McCallum JA at [3]
Decision:

(1) Dismiss the application for leave to appeal from the judgment in the District Court;

(2) Order the applicant to pay the respondents’ costs of the application.

Catchwords:

CIVIL PROCEDURE – application for leave to appeal from decision dismissing action for defamation summarily – contest as to basis for primary judge’s decision – whether proposed appeal provided the occasion for appellate consideration of the decision in Bleyer v Google Inc – where pleading admittedly deficient – relevance of considerations of proportionality to discretion to grant leave to replead

Legislation Cited:

Civil Procedure Act 2005 (NSW), ss 60, 61, 64, 67

District Court Act 1973 (NSW), ss 127(2)

Limitation Act 1969 (NSW), s 14B

Uniform Civil Procedure Rules 2005 (NSW), rr 13.4(1)(b), 14.28

Cases Cited:

Armstrong v McIntosh (No 2) [2019] WASC 379

Bleyer v Google Inc (2014) 88 NSWLR 670; [2014] NSWSC 897

El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990

Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612; [2017] NSWCA 246

Feldman v The Daily Beast Company LLC [2017] NSWSC 831

Fox v Channel Seven Adelaide Pty Ltd (No 2) [2020] SASC 180

Garrard (t/as Arthur Anderson & Co) v Email Furniture Pty Ltd (1993) 32 NSWLR 662

GG Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664

Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595; [2015] NSWCA 334

Jaycar Pty Limited v Lombardo [2011] NSWCA 284

Khalil v Nationwide News Pty Ltd (No 2) [2018] NSWDC 126

Lazarus v Azize [2015] ACTSC 344

Smith v Lucht [2014] QDC 302

Toben v Nationwide News Pty Ltd (2016) 93 NSWLR 639; [2016] NSWCA 296

Toomey v John Fairfax & Sons Ltd (1985) 1 NSWLR 291

Watney v Kencian [2017] QCA 116

Category:Principal judgment
Parties: Patrick Massarani (Applicant)
Georgia Kriz (First Respondent)
Ilya Klauzner (Second Respondent)
Representation:

Counsel:
A Morris QC, N Li (Applicant)
B McClintock SC, L Saunders (First Respondent)
B McClintock SC, T Senior (Second Respondent)

Solicitors:
Carroll & O’Dea Lawyers (Applicant)
SRC Legal Service Pty Ltd (Respondents)
File Number(s): 2020/94599
Publication restriction: None
 Decision under appeal 
Court or tribunal:
District Court of New South Wales
Jurisdiction:
Civil
Citation:

[2020] NSWDC 26

Date of Decision:
26 February 2020
Before:
Gibson DCJ
File Number(s):
2019/25823

Judgment

  1. BASTEN JA: I agree with McCallum JA. Accordingly the orders are:

  1. Dismiss the application for leave to appeal from the judgment in the District Court;

  2. Order the applicant to pay the respondents’ costs of the application.

  1. LEEMING JA: I agree with McCallum JA.

  2. McCALLUM JA: Patrick Massarani seeks leave to appeal from a decision of the District Court (Gibson DCJ) summarily dismissing his action for defamation arising out of the publication of an article in a…

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AGLC
Massarani v Kriz [2020] NSWCA 252
Case
[2020] NSWCA 252
Decision Date

CaseChat Overview and Summary

Massarani (the applicant) sought leave to appeal from a decision of the District Court of New South Wales that summarily dismissed his action for defamation against Kriz and others (the respondents). The primary judge had dismissed the defamation claim, and the applicant contended that the basis for this decision was unclear, arguing that the appeal would provide an opportunity to consider the decision in *Bleyer v Google Inc*. The applicant admitted that his pleading was deficient.

The Court of Appeal was required to determine whether to grant the applicant leave to appeal the District Court's summary dismissal of his defamation action. A key issue was whether the proposed appeal presented a suitable occasion for appellate consideration of the principles established in *Bleyer v Google Inc*, particularly in light of the admitted deficiencies in the applicant's pleading and the relevance of proportionality considerations to the exercise of discretion to grant leave to replead.

The Court dismissed the application for leave to appeal. Their Honours reasoned that the applicant's pleading was admittedly deficient and that the appeal did not present a compelling reason for appellate intervention, especially when considering the proportionality of granting leave to replead in such circumstances. The Court found that the appeal did not warrant the occasion for further consideration of the *Bleyer* decision.

Consequently, the Court ordered that the application for leave to appeal be dismissed and that the applicant pay the respondents’ costs of the application.

Orders

Orders of the court

(1) Dismiss the application for leave to appeal from the judgment in the District Court;

(2) Order the applicant to pay the respondents’ costs of the application.

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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