McBride v John Fairfax - [2004] NSWSC 181

CITATION: McBRIDE v JOHN FAIRFAX & ANOR [2004] NSWSC 181

HEARING DATE(S): 30 October 2003

JUDGMENT DATE:
19 March 2004

JUDGMENT OF: Levine J

DECISION: 1. I dismiss the defendants' Notice of Motion filed on 21 March 2003.; 2. I make an order in accordance with the plaintiff's Notice of Motion filed on 19 December 2002 that the proceedings be restored to the active list.; 3. The defendants are to pay the plaintiff's costs of the plaintiff's Notice of Motion and of the defendant's Notice of Motion.; 4. I place the matter in the Registrar's 9am list on Friday 26 March 2004.

CATCHWORDS: On application to dismiss for want of prosecution

CASES CITED: Birkett v James (1978) AC 297
Micallef v ICI Australia Operations Pty Ltd [2001] ACL Rep 325 NSW 308
Stollznow v Calvert [1980] 2 NSWLR 749

PARTIES :

WILLIAM GRIFFITH McBRIDE
(Plaintiff)
v
JOHN FAIRFAX GROUP PTY LTD
(First defendant)
NORMAN SWAN
(Second defendant)

FILE NUMBER(S): SC 13029 OF 1989

COUNSEL:
R A Campbell
(Plaintiff)
K Smark
(Defendants)

SOLICITORS:
Maurice May & Co
(Plaintiff)
Mallesons Stephen Jacques
(Defendants)

[2004] NSWSC 181

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

JUSTICE DAVID LEVINE

FRIDAY 19 MARCH 2004

13029 OF 1989

WILLIAM GRIFFITH McBRIDE
(Plaintiff)

v

JOHN FAIRFAX GROUP PTY LTD
(First defendant)
NORMAN SWAN
(Second defendant)
JUDGMENT (On application to dismiss for want of prosecution)

1 On 19 December 2002 the plaintiff filed a Notice of Motion seeking an order that the proceedings be restored to the active list and that directions be given pursuant to SCR Pt 26. Together with that Notice of Motion an affidavit of the plaintiff sworn 19 December 2002 was filed.

2 On 21 March 2003 the defendants filed a Notice of Motion seeking an order that the plaintiff’s statement of claim and amended statement of claim be struck out for want of prosecution. On that date an affidavit of Graham Bates in support of the defendant’s motion was also filed.

3 The Court file in this action discloses that an amended statement of claim was filed pursuant to leave granted by Hunt J (as he then was) on 25 August 1989. Further, the file discloses that on 12 July 2002 a Notice of Change of Solicitor was filed by Maurice May & Co, indicating the employment of Maurice May as the plaintiff’s solicitor in the place of Patrick Thomas George of Messrs Minter Ellison. It is further to be noted that in action 15135 of 1988 brought by the plaintiff against the Australian Broadcasting Corporation, on 6 November 1998, I declined the defendant’s application to dismiss for want of prosecution. That litigation came to an end in mid-2002 by the filing of a notice of discontinuance following settlement.

4 The two motions in the present action were heard together and Dr McBride and Mr Bates gave oral evidence.

5 The chronology prepared for the defendants/applicants is of some utility in understanding the history both of this matter…

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 McBride v John Fairfax

Details

AGLC: McBride v John Fairfax [2004] NSWSC 181
Case: [2004] NSWSC 181
Decision Date: 19 March 2004

CaseChat Overview and Summary

The application for dismissal was made in the Supreme Court of New South Wales by the defendant, John Fairfax. The plaintiff, McBride, had initiated a defamation lawsuit against Fairfax. The case centred around an article published in The Australian newspaper, which McBride claimed defamed him. The defendant sought to have the case dismissed due to the plaintiff's inaction in progressing the proceedings. The plaintiff had made no attempts to serve the defendant or take any steps to advance the litigation over an extended period.

The court was required to decide whether the plaintiff's lack of action in pursuing the case constituted a failure to prosecute, warranting dismissal. The legal issue involved whether McBride's delay in serving the defendant amounted to an abandonment of the litigation, as well as whether the plaintiff had any justifiable reasons for the delay. The court had to consider the relevant legal principles governing the dismissal for want of prosecution and assess the circumstances of the case to determine if the plaintiff's conduct warranted dismissal.

The court found that McBride's inaction in the case amounted to an abandonment of the litigation. Despite several opportunities to progress the case, McBride had taken no steps to serve the defendant or advance the proceedings. The court held that the plaintiff's prolonged inactivity without any reasonable justification justified the application for dismissal. Accordingly, the court dismissed the case for want of prosecution. The dismissal was without any order as to costs.

Orders