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Mehajer v Seven West Media

Mehajer v Seven West Media

Case [2021] NSWDC 379 5 August 2021

Civil Litigation & Procedure

Tort Law

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District Court

New South Wales

Amendment notes

Medium Neutral Citation: Mehajer v Seven West Media [2021] NSWDC 379
Hearing dates: 5 August 2021
Date of orders: 5 August 2021
Decision date: 05 August 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1) Plaintiff’s application for leave to file an amended statement of claim refused.
(2) Pursuant to UCPR r 12.7(1), these proceedings are struck out and dismissed.
(3) Plaintiff is to pay the defendant’s costs of the proceedings.

Catchwords:
TORT – defamation – plaintiff commences proceedings for three publications made in 2017, 2019 and 2020 – statement of claim fails to attach matters complained of or to comply with pleading rules – plaintiff repeatedly fails to amend the pleadings or to comply with self-executing order – “reluctant gladiator” – proceedings summarily dismissed

Legislation Cited:
Bankruptcy Act 1966 (Cth) s 60(4)
Civil Procedure Act 2005 (NSW) ss 56 – 62
Defamation Act 2005 (NSW) s 42
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 1.12, 14.30, 15.1, Pt 3, 36.11(2)

Cases Cited:
Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96
Bailey v Marinoff (1971) 125 CLR 529
Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994)
Barakat v Goritsas [2002] NSWCA 8
Bi v Mourad [2010] NSWSC 817
Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998, unreported)
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Douglas v John Fairfax & Sons Pty Ltd (1983) 3 NSWLR 126
Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268
Gill v Eatts [1999] NSWSC 1056; (1999) Aust Torts Rep 81-529
Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623
Harrigan v Jones [2000] NSWSC 814
Hoser v Hartcher [1999] NSWSC 527
Jenman v McIntyre [2013] NSWSC 1100
Jones v Dalungbara & Ngulungbara People of Kgari v Queensland and the Commonwealth [1998] QSC 108
Massarani v Kriz [2020] NSWCA 252
McCarey v Associated Newspapers Ltd (1965) 2 QB 86
Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of SalimMehajer [2020] FCA 924
Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
Porter v Australian Broadcasting Corporation [2021] FCA 863
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784
Turner v Bulletin Newspaper Co Pty Ltd (1974) 31 CLR 69

Texts Cited:
Law Reform Commission on Defamation Report 11 (1971)
Hansard, 27 February 1974, pp 848 –…

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 Mehajer v Seven West Media

Details

AGLC: Mehajer v Seven West Media [2021] NSWDC 379
Case: [2021] NSWDC 379
Decision Date: 05 August 2021

CaseChat Overview and Summary

The plaintiff, Mehajer, commenced proceedings against Seven West Media for defamation arising from three publications made in 2017, 2019, and 2020. The plaintiff's statement of claim failed to attach the matters complained of and did not comply with pleading rules. Despite repeated opportunities to amend the pleadings, the plaintiff did not comply with the self-executing order. The court referred to the plaintiff as a "reluctant gladiator" due to their persistent refusal to comply with court orders.

The primary legal issue before the court was whether the plaintiff's repeated failure to comply with court orders and pleading rules warranted the summary dismissal of the proceedings. The court considered the importance of adhering to procedural requirements and the need to ensure that proceedings are conducted fairly and efficiently.

The court held that the plaintiff's conduct warranted the summary dismissal of the proceedings. The plaintiff's failure to attach the complained-of publications and to comply with pleading rules, despite numerous opportunities to do so, demonstrated a disregard for the court's directions. The court exercised its discretion under UCPR r 12.7(1) to strike out and dismiss the proceedings, and ordered that the plaintiff pay the defendant's costs. The court noted that the dismissal was necessary to maintain the integrity of the court process and to deter similar conduct in the future.

The final orders of the court were to refuse the plaintiff's application for leave to file an amended statement of claim, to strike out and dismiss the proceedings pursuant to UCPR r 12.7(1), and to order the plaintiff to pay the defendant's costs of the proceedings.

Orders

Orders of the court

Order:

(1) Plaintiff’s application for leave to file an amended statement of claim refused.

(2) Pursuant to UCPR r 12.7(1), these proceedings are struck out and dismissed.

(3) Plaintiff is to pay the defendant’s costs of the proceedings.

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

Mehajer v Seven West Media [2021] NSWDC 379

Most Recent Citation

Mehajer v SC Lowy Primary Investments Pty Ltd [2022] NSWSC 689

Cases Citing This Decision

Mehajer v SC Lowy Primary Investments Pty Ltd [2022] NSWSC 689
Citation 1 (Para 8)

…ven West Media seeking damages for publication of certain materials, heard by Gibson DCJ, culminating in a judgment styled Mehajer v Seven West Media [2021] NSWDC 379, referred to in these reasons as “the Seven West Media Proceeding”;…

See all citing cases →

Cases Cited

Porter v Australian Broadcasting Corporation [2021] FCA 863
Citation 1 (Para 12)

…the court file, in terms of being the record of what was before the court, has recently been affirmed in Porter v Australian Broadcasting Corporation [2021] FCA 863. These principles are particularly relevant in proceedings such as the present, where the plaintiff has not only failed to comply with orders to file…
Ogbonna v CTI Logistics Ltd [2021] WASCA 25
Citation 2 (Para 27)

…addition, great caution must be exercised when the party whose proceedings are to be struck out is a litigant in person: Ogbonna v CTI Logistics Ltd [2021] WASCA 25. The result is that summary dismissal of proceedings is an order rarely made, particularly in defamation proceedings, although the potential for abus…
Massarani v Kriz [2020] NSWCA 252
Citation 3 (Para 26)

…The statutory provisions underpinning the court’s power to dismiss proceedings summarily were most recently discussed in Massarani v Kriz [2020] NSWCA 252 and I adopt and apply the explanation set out by McCallum JA therein.…
Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of Salim Mehajer [2020] FCA 924
Citation 4 (Para 7)

…bankrupt on 20 March 2018 and remains bankrupt to this day ( Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of Salim Mehajer [2020] FCA 924), but it is not necessary to refer to this, as the entitlement of a bankrupt to bring defamation proceedings by reason of s 60(4) of the Bankruptcy Act 1…
Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96
Citation 5 (Para 7)

…ex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 at [5]; Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476; Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994).…
Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784
Citation 6 (Para 7)

…n proceedings by reason of s 60(4) of the Bankruptcy Act 1966 (Cth) has long been recognised ( Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 at [109]; Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company…
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Citation 7 (Para 31)

…nues to be cited with approval in the courts in New South Wales (see for example Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 at [103]), approval of the principles enunciated by Simpson J is not unanimous. In the leading case on what constitutes a “reluctant gladiator” ( Bi v…
Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623
Citation 8 (Para 33)

…The approach taken by the majority in Bi v Mourad has been applied in other defamation judgments: Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623. This more objective analysis of the activity (as opposed to focussing upon periods of time and prejudice, the two pillars of Hoser v Hartcher ) was also taken…
Jenman v McIntyre [2013] NSWSC 1100
Citation 9 (Para 4)

…wnloading within the 12-month period prior to commencing proceedings were provided in relation to the asserted online publications: Jenman v McIntyre [2013] NSWSC 1100 at [3] per McCallum J, citing Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [25] to [28] and [44].…
Moss v Eaglestone [2011] NSWCA 404
Citation 10 (Para 7)

…rfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 at [5]; Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476; Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994).…
Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245
Citation 11 (Para 12)

…racy of which is paramount to the administration of justice (see UCPR Pt 3; Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245). The importance of the court file, in terms of being the record of what was before the court, has recently been affirmed in Porter v Australian Broa…
Jackgreen (International) Pty Ltd [2010] NSWSC 817
Citation 12 (Para 31)

…roval of the principles enunciated by Simpson J is not unanimous. In the leading case on what constitutes a “reluctant gladiator” ( Bi v Mourad [2010] NSWSC 817, Sackville AJA stated at [39] – [41]:…
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27
Citation 13

…us to the claimants: cf Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230; Aon Risk Services Pty Limited v Australia National University [2009] HCA 27, 239 CLR 175; Civil Procedure Act , ss 56–60. In any event, her Honour's statement of the relevant principles reveals no error.”…
Hans Pet Constructions Pty Ltd v Cassar [2009] NSWCA 230
Citation 14

…ent of Simpson J in Hoser v Hartcher [1999] NSWSC 527 may be somewhat too generous to the claimants: cf Hans Pet Constructions Pty Limited v Cassar [2009] NSWCA 230; Aon Risk Services Pty Limited v Australia National University [2009] HCA 27, 239 CLR 175; Civil Procedure Act , ss 56–60. In any event, her Honour's s…
Dennis v Australian Broadcasting Corporation [2008] NSWCA 37
Citation 15 (Para 27)

…ngle publication” rule would prevent abuse of process (Hansard, 27 February 1974, pp 848 – 850); Dennis v Australian Broadcasting Corporation [2008] NSWCA 37).…
Dow Jones & Co Inc v Gutnick [2002] HCA 56
Citation 16 (Para 4)

…n relation to the asserted online publications: Jenman v McIntyre [2013] NSWSC 1100 at [3] per McCallum J, citing Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 at [25] to [28] and [44].…
Buck v Jones [2002] NSWCA 8
Citation 17 (Para 19)

…nd the Commonwealth [1998] QSC 108), an interlocutory order of a peremptory or “self-executing” nature may be made. In Barakat v Goritsas [2002] NSWCA 8 at [30], Basten JA explained the nature of the power as follows:…
Harrigan v Jones [2000] NSWSC 814
Citation 18 (Para 8)

…he defendant’s failure to contact him but now puts this forward as a basis for claiming aggravated damages. This is impermissible: Harrigan v Jones [2000] NSWSC 814 at [59].…
Gill v Eatts [1999] NSWSC 1056
Citation 19 (Para 33)

…ctivity (as opposed to focussing upon periods of time and prejudice, the two pillars of Hoser v Hartcher ) was also taken by Levine J in Gill v Eatts [1999] NSWSC 1056, (1999) Aust Torts Rep 81-529 at [70] – [71]:…
Hoser v Hartcher [1999] NSWSC 527
Citation 20 (Para 28)

…The decision of Hoser v Hartcher [1999] NSWSC 527 at [19] – [30], upon which Ms Cowden relies, is a good example of this curial reluctance. Mr Hoser brought defamation proceedings against a Member of Parliament, for publication of a press release critical of the plaintiff. The plaintiff took no further steps in the…
Jones & Dalungbara Batchala & Ngulungbara People of Kgari v Queensland & Commonwealth [1998] QSC 108
Citation 21 (Para 19)

…“persistently dilatory” (to use the descriptions given in Jones v Dalungbara & Ngulungbara People of Kgari v Queensland and the Commonwealth [1998] QSC 108), an interlocutory order of a peremptory or “self-executing” nature may be made. In Barakat v Goritsas [2002] NSWCA 8 at [30], Basten JA explained the nature…
FAI General Insurance Co Ltd v Southern Cross Exploration NL [1988] HCA 13
Citation 22 (Para 18)

…t the court is not functus officio , if only because non-compliance must be established: FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268.…
Bailey v Marinoff [1971] HCA 49
Citation 23

…Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 Bailey v Marinoff (1971) 125 CLR 529 Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994) Barakat v Goritsas [2002] NSWCA 8 Bi v Mourad [2010] NSWSC 817 Campbell v Regional Publishers…
Public Curator of Queensland v Union Trustee Company of Australia Limited [1922] HCA 28
Citation 24 (Para 20)

…Barwick CJ expressed reservations about the practice of summary dismissal on following self-executing order in Turner v Bulletin Newspaper Co Pty Ltd (1974) 31 CLR 69 at [1] – [8], there can be no doubt that it is an effective order where all else has failed. The proof of its effectiveness in the present case is th…
(1965) 2 QB 86 (1965) 2 QB 86
Citation 25 (Para 36)

…plaintiff who does not take action promptly is one whose damages may be heavily discounted because of the delay: McCarey v Associated Newspapers Ltd (1965) 2 QB 86.…
McCarey v Associated Newspapers Ltd (1965) 1 WLR 805
Citation 26 (Para 36)

…at [25])). That is in part because a plaintiff who does not take action promptly is one whose damages may be heavily discounted because of the delay: McCarey v Associated Newspapers Ltd (1965) 2 QB 86.…

Legislation Cited

Uniform Civil Procedure Rules 2005 (NSW) 1.12, 14.30, 15.1, 36.11(2)
4 mentions (from Para 4)
Bankruptcy Act 1966 (Cth) 60(4)
2 mentions (from Para 7)
Civil Procedure Act 2005 (NSW) 56
2 mentions (from Para 31)
Defamation Act 2005 (TAS) 42
2 mentions (from Para 37)

Medium Neutral Citation:	Mehajer v Seven West Media [2021] NSWDC 379
Hearing dates:	5 August 2021
Date of orders:	5 August 2021
Decision date:	05 August 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) Plaintiff’s application for leave to file an amended statement of claim refused. (2) Pursuant to UCPR r 12.7(1), these proceedings are struck out and dismissed. (3) Plaintiff is to pay the defendant’s costs of the proceedings.
Catchwords:	TORT – defamation – plaintiff commences proceedings for three publications made in 2017, 2019 and 2020 – statement of claim fails to attach matters complained of or to comply with pleading rules – plaintiff repeatedly fails to amend the pleadings or to comply with self-executing order – “reluctant gladiator” – proceedings summarily dismissed
Legislation Cited:	Bankruptcy Act 1966 (Cth) s 60(4) Civil Procedure Act 2005 (NSW) ss 56 – 62 Defamation Act 2005 (NSW) s 42 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) rr 1.12, 14.30, 15.1, Pt 3, 36.11(2)
Cases Cited:	Alex v Fairfax Media Publications Pty Ltd; Alex v Whittaker; Alex v Goodsir; Alex v Fairfax Media Publications Pty Ltd; Alex v The Age Company Ltd; Alex v Australian Broadcasting Corporation [2016] NSWDC 96 Bailey v Marinoff (1971) 125 CLR 529 Baltinos v Johnson (Supreme Court of NSW, Levine J, 16 December 1994) Barakat v Goritsas [2002] NSWCA 8 Bi v Mourad [2010] NSWSC 817 Campbell v Regional Publishers Pty Ltd (Supreme Court of New South Wales, Levine J, 30 October 1998, unreported) Cyril Smith & Associates Pty Ltd v The Owners-Strata Plan No 64970 (No 2) [2011] NSWCA 245 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dennis v Australian Broadcasting Corporation [2008] NSWCA 37 Douglas v John Fairfax & Sons Pty Ltd (1983) 3 NSWLR 126 Dow Jones and Company Inc v Gutnick [2002] HCA 56; 210 CLR 575 FAI General Insurance Co Ltd v Southern Cross Exploration NL (1988) 165 CLR 268 Gill v Eatts [1999] NSWSC 1056; (1999) Aust Torts Rep 81-529 Hanshaw v Seven Network (Operations) Ltd [2014] NSWSC 623 Harrigan v Jones [2000] NSWSC 814 Hoser v Hartcher [1999] NSWSC 527 Jenman v McIntyre [2013] NSWSC 1100 Jones v Dalungbara & Ngulungbara People of Kgari v Queensland and the Commonwealth [1998] QSC 108 Massarani v Kriz [2020] NSWCA 252 McCarey v Associated Newspapers Ltd (1965) 2 QB 86 Mehajer v Weston in his capacity as Trustee of the Bankrupt Estate of SalimMehajer [2020] FCA 924 Moss v Eaglestone [2011] NSWCA 404; 83 NSWLR 476 Ogbonna v CTI Logistics Ltd [2021] WASCA 25 Porter v Australian Broadcasting Corporation [2021] FCA 863 Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32 Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784 Turner v Bulletin Newspaper Co Pty Ltd (1974) 31 CLR 69
Texts Cited:	Law Reform Commission on Defamation Report 11 (1971) Hansard, 27 February 1974, pp 848 –…