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Massarani v Kriz

Massarani v Kriz

Case [2020] NSWDC 26 26 February 2020

Civil Litigation & Procedure

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District Court

New South Wales

Medium Neutral Citation: Massarani v Kriz [2020] NSWDC 26
Hearing dates: 21 November, 5 December 2019; 13 February 2020
Date of orders: 26 February 2020
Decision date: 26 February 2020
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the “Further Amended Statement of Claim” filed on 13 August 2019 are struck out and dismissed, with leave to replead refused.
(2) Summons filed on 19 January 2019 struck out and dismissed.
(3) Costs reserved.
(4) Liberty to apply on seven days’ notice.
(5) Exhibits retained until further order.

Catchwords: TORT – defamation – application for summary dismissal – proceedings for defamation for publication in a July 2015 student newspaper and a 2018 conversation with one person conveying imputations that he seriously sexually harassed women – first and sixth defendants bring applications for summary dismissal pursuant to rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis of a history of successive hopeless pleadings – first and sixth defendants additionally seek summary dismissal pursuant to UCPR r 12.7 and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), as an abuse of process, on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – plaintiff seeks further leave to replead – leave to replead refused – applications for dismissal granted
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60, 61 and 67
Limitation Act 1969 (NSW)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 12.7, 13.4, 14.28 and 28.2
Cases Cited: Armstrong v McIntosh [No 2] [2019] WASC 379
Bleyer v Google Inc (2014) 88 NSWLR 670
Boland v Dillon; Cush v Dillon [2015] NSWCA 183
Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB)
Cranbrook School v Stanley [2002] NSWCA 290
Cronau v Nelson [2018] NSWSC 1769
Cush v Dillon; Boland v Dillon (2011) 243 CLR 298
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Dillon v Cush; Dillon v Boland [2010] NSWCA 165
El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990
Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612
Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268
Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB)
Ford v Nagle [2004] NSWCA 33
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595
Jones v Sutton [2004] NSWCA 439
Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192
Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805
MacDonald v…

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 Massarani v Kriz

Details

AGLC: Massarani v Kriz [2020] NSWDC 26
Case: [2020] NSWDC 26
Decision Date: 26 February 2020

CaseChat Overview and Summary

The case of Massarani v Kriz involved the plaintiff, Massarani, who brought a defamation action against multiple defendants, including the first and sixth defendants. The plaintiff alleged that the defendants defamed him by publishing false statements in a student newspaper and through conversations in 2018 that he seriously sexually harassed women. The first and sixth defendants applied for the proceedings to be dismissed under several rules and sections of the Uniform Civil Procedure Rules 2005 (NSW) and the Civil Procedure Act 2005 (NSW). They argued that the plaintiff's pleadings had been hopeless and successive, and that the case was an abuse of process due to the disproportionate legal costs and court resources required to determine the claim.

The court had to decide whether the applications for summary dismissal should be granted. The key issues were whether the plaintiff's pleadings were hopeless and successive, and whether the proceedings constituted an abuse of process. The first and sixth defendants contended that the plaintiff's claims had no reasonable prospects of success and had been repeatedly amended without any improvement. They also argued that the proceedings were an abuse of process because the costs and resources required to determine the claim were out of proportion to the interest at stake.

In dismissing the claims, the court found that the plaintiff's pleadings were indeed hopeless and successive. It was determined that the plaintiff had failed to make any meaningful amendments to his pleadings, despite multiple opportunities to do so. The court also found that the proceedings were an abuse of process due to the disproportionate costs and resources required. The court refused the plaintiff leave to replead, concluding that there was no reasonable prospect of the plaintiff being able to plead a cause of action that would succeed. Consequently, the court granted the applications for summary dismissal.

Orders

Orders of the court

(1) Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the “Further Amended Statement of Claim” filed on 13 August 2019 are struck out and dismissed, with leave to replead refused.

(2) Summons filed on 19 January 2019 struck out and dismissed.

(3) Costs reserved.

(4) Liberty to apply on seven days’ notice.

(5) Exhibits retained until further order.

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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Citations

Massarani v Kriz [2020] NSWDC 26

Most Recent Citation

Massarani v Kriz [2022] FCA 80

Cases Citing This Decision

Massarani v Kriz [2022] FCA 80
Citation 1 (Para 2)

…A few months after the Ryan article was uploaded to the Chuffed website, the action in the District Court was summarily dismissed ( Massarani v Kriz [2020] NSWDC 26) and the Court of Appeal refused Mr Massarani leave to appeal ( Massarani v Kriz [2020] NSWCA 252).…
Massarani v Kriz [2020] NSWCA 252
Citation 2

…ublication 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…

See all citing cases →

Cases Cited

Armstrong v McIntosh (No 2) [2019] WASC 379
Citation 1 (Para 60)

…in Ghosh v NineMSN Pty Ltd , do not require repetition. A comprehensive list of all the relevant decisions is set out in Armstrong v McIntosh [No 2] [2019] WASC 379, as are the relevant principles. In Armstrong v McIntosh [No 2] , these principles were considered separately in relation to each of the matters comp…
Wollongong City Council v Papadopoulos [2019] NSWCA 178
Citation 2 (Para 17)

…written and oral submissions and the provision of this document to me was done without consent or leave ( Wollongong City Council v Papadopoulos [2019] NSWCA 178), I relisted the application on 5 December 2019 to inquire as to the position of the parties in relation to the new material.…
Cronau v Nelson [2018] NSWSC 1769
Citation 3 (Para 80)

…particulars of downloading in MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206; Sims v Jooste (No 2) [2016] WASCA 83; Cronau v Nelson [2018] NSWSC 1769; El-Mouelhy v Q-Society of Australia Inc (No 2) ).…
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Citation 4 (Para 3)

…a controversial remedy. It has yet to be approved at appellate level, apart from the obiter remarks of Basten JA in Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 at [5]. Even in the United Kingdom, the striking out of proceedings as an abuse of process for proportionality has been described as an “exceptional”…
Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334
Citation 5 (Para 2)

…nd sixth defendants submit that the inadequacies of pleading to date warrant the dismissal on the grounds identified in Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 at [44] per Macfarlan JA.…
Boland v Dillon; Cush v Dillon [2015] NSWCA 183
Citation 6 (Para 5)

…illon; Boland v Dillon (2011) 243 CLR 298). What is more, the Court of Appeal entertained further appeals (including Boland v Dillon; Cush v Dillon [2015] NSWCA 183), which sends a very clear message to defendants that the Court considers slanders to one person very seriously. The costs of the appeals and the three…
El-Mouelhy v Q-Society of Australia Inc (No 2) [2015] NSWSC 990
Citation 7 (Para 2)

…r will be granted an opportunity to replead, even where the pleading is hopeless in its current form: El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990 (failure to particularise “worldwide” publication”).…
Bleyer v Google Inc [2014] NSWSC 897
Citation 8 (Para 4)

…d 2015 article and a 2018 conversation to one person are disproportionate to the asserted damage to the plaintiff’s reputation: Bleyer v Google Inc (2014) 88 NSWLR 670.…
MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206
Citation 9 (Para 80)

…192 (see the application of this decision to the obligation to provide particulars of downloading in MacDonald v Australian Broadcasting Corporation [2014] NSWSC 206; Sims v Jooste (No 2) [2016] WASCA 83; Cronau v Nelson [2018] NSWSC 1769; El-Mouelhy v Q-Society of Australia Inc (No 2) ).…
Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268
Citation 10 (Para 2)

…eas. Any application for leave to serve the plaintiff overseas cannot be made to this court: Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268.…
Cush v Dillon [2011] HCA 30
Citation 11 (Para 5)

…nted by the High Court despite the slander being made only to one person and the damages awarded being only $5,000 ( Cush v Dillon; Boland v Dillon (2011) 243 CLR 298). What is more, the Court of Appeal entertained further appeals (including Boland v Dillon; Cush v Dillon [2015] NSWCA 183), which sends a very clear m…
Dillon v Cush; Dillon v Boland [2010] NSWCA 165
Citation 12 (Para 5)

…000 and $2,000 were considered unappellably correct) or where leave to appeal has been granted by the High Court. In Dillon v Cush; Dillon v Boland [2010] NSWCA 165 the Court of Appeal did not deal with the application for leave to appeal the triviality defence. The legal issues arising in this case of publication…
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Citation 13 (Para 52)

…Leave to replead would be appropriate, although there must come a time when repleading becomes onerous: Dennis v Australian Broadcasting Corporation [2008] NSWCA 37. It must be remembered that, in those proceedings, the defect complained of was a repeated repleading of imputations. The defects in this case are fa…
Trantum v McDowell [2007] NSWCA 138
Citation 14 (Para 42)

…ormer fourth defendant, who wrote the email referred to. While a publication between two defendants may still constitute a libel ( Trantum v McDowell [2007] NSWCA 138), the first defendant can still only be liable for what she actually said.…
Wen Yue He v Chinese Newspapers Pty Ltd [2005] NSWSC 253
Citation 15 (Para 34)

…Productions Pty Ltd & Ors (District Court of NSW, Walmsley SC DCJ, 28 May 2013) at [30]-[39]; cf Wen Yue He v Australian Chinese Publications Pty Ltd [2005] NSWSC 253 at [3] – [7]).…
Jones v Sutton [2004] NSWCA 439
Citation 16 (Para 3)

…wledged to be less than for written publications ( Umeyor v Ibe [2016] EWHC 862 (QB); uncapped damages of $5,000 for three slanders in Jones v Sutton [2004] NSWCA 439 were not challenged on appeal). The extent of publication here is limited to one person. The plaintiff has settled or discontinued his claim against…
Ford v Nagle [2004] NSWCA 33
Citation 17 (Para 58)

…New South Wales Court of Appeal in Cranbrook School v Stanley . I note the reluctance of the same court (otherwise constituted) in Ford v Nagle [2004] NSWCA 33.…
Cranbrook School v Stanley [2002] NSWCA 290
Citation 18 (Para 45)

…o UCPR r 28.2. While a party may assert that his opponent has a “weak” case and seek summary dismissal on that basis ( Cranbrook School v Stanley [2002] NSWCA 290), the facts would need to be exceptional.…
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69
Citation 19 (Para 2)

…is manifestly groundless or so obviously untenable that it cannot possibly succeed ( General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129). In particular, where there is an absence of particulars (such as particulars of downloading or of publication), the proceedings will not be st…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 12.7, 13.4, 14.28, 28.2, 6.2
6 mentions (from Para 1)
Civil Procedure Act 2005 (NSW) 60, 61, 67
4 mentions (from Para 2)
Limitation Act 1969 (NSW)
1 mention (from Para 58)

Medium Neutral Citation:	Massarani v Kriz [2020] NSWDC 26
Hearing dates:	21 November, 5 December 2019; 13 February 2020
Date of orders:	26 February 2020
Decision date:	26 February 2020
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second matter complained of) in the “Further Amended Statement of Claim” filed on 13 August 2019 are struck out and dismissed, with leave to replead refused. (2) Summons filed on 19 January 2019 struck out and dismissed. (3) Costs reserved. (4) Liberty to apply on seven days’ notice. (5) Exhibits retained until further order.
Catchwords:	TORT – defamation – application for summary dismissal – proceedings for defamation for publication in a July 2015 student newspaper and a 2018 conversation with one person conveying imputations that he seriously sexually harassed women – first and sixth defendants bring applications for summary dismissal pursuant to rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) on the basis of a history of successive hopeless pleadings – first and sixth defendants additionally seek summary dismissal pursuant to UCPR r 12.7 and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), as an abuse of process, on the grounds that the legal costs and court resources required to determine the claim will be out of all proportion to the interest at stake – plaintiff seeks further leave to replead – leave to replead refused – applications for dismissal granted
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60, 61 and 67 Limitation Act 1969 (NSW) Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 12.7, 13.4, 14.28 and 28.2
Cases Cited:	Armstrong v McIntosh [No 2] [2019] WASC 379 Bleyer v Google Inc (2014) 88 NSWLR 670 Boland v Dillon; Cush v Dillon [2015] NSWCA 183 Budu v The British Broadcasting Corporation [2010] EWHC 616 (QB) Cranbrook School v Stanley [2002] NSWCA 290 Cronau v Nelson [2018] NSWSC 1769 Cush v Dillon; Boland v Dillon (2011) 243 CLR 298 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Dillon v Cush; Dillon v Boland [2010] NSWCA 165 El-Mouelhy v Qsociety of Australia Inc (No 2) [2015] NSWSC 990 Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 Flo Rida (aka Tramar Dillard) v Mothership Music Pty Ltd [2013] NSWCA 268 Flood v Times Newspapers Ltd [2009] EWHC 2375 (QB) Ford v Nagle [2004] NSWCA 33 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Ghosh v NineMSN Pty Ltd (2015) 90 NSWLR 595 Jones v Sutton [2004] NSWCA 439 Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192 Loutchansky v The Times Newspapers Ltd [2001] EWCA Civ 1805 MacDonald v…