Mohareb v Jankulovski - [2014] NSWSC 451

Supreme Court

New South Wales

Medium Neutral Citation: Mohareb v Jankulovski [2014] NSWSC 451
Hearing dates: 14 April 2014
Decision date: 17 April 2014
Before: Harrison J
Decision:
1. Order the defendants to file their defence to the second further amended statement of claim filed 3 April 2014 within 14 days.
2. Stand the proceedings into the Defamation List in June 2014 before McCallum J.
3. Order that the plaintiff pay the costs of the proceedings before Rothman J on 24 March 2014.
4. Make no order as to the costs of the proceedings on 14 April 2014.

Catchwords: PROCEDURE - defamation - application to strike out or dismiss proceedings for want of due despatch - UCPR 12.7, 14.28, 42.20
Legislation Cited: Uniform Civil Procedure Rules 2005
Category: Procedural and other rulings
Parties: Nader Mohareb (Plaintiff)
Emil Jankulovski (First Defendant)
Emil & Sons Pty Ltd t/as Inducta Engineering (Second Defendant)
Representation: Counsel:
C J Dibb (Plaintiff)
M Dulhunty (Defendants)
Solicitors:
C Jankulovska (Defendants)

File Number(s): 2012/68684
Publication restriction: Nil

Judgment

HIS HONOUR: These proceedings have a relatively short but unfortunate history. It appears very unlikely that they will be concluded soon.

By notice of motion filed on 4 March 2014 the defendants sought the following orders

(a) That Further Amended Statement of Claim filed on 31 May 2012 and the proceedings be struck out for want of prosecution pursuant to Regulation 12.7, 14.28 and 42.20 of the Uniform Civil Procedure Rules, 2005 (UCPR);

(b) Alternatively that Further Amended Statement of Claim filed on 31 May 2012 and the proceedings be dismissed for want of prosecution pursuant to Regulation 12.7, 14.28 and 42.20 of the UCPR;

(c) That the plaintiff not be given leave to replead his claim;

(d) That the plaintiff return forthwith the dongles handed to him by the first defendant on 4 February 2013;

(e) That the plaintiff pay the defendants costs of the proceedings on the indemnity basis.

The defendants' application was supported by an affidavit of Cvetanka Jankulovska sworn 4 March 2014. It is presently unnecessary to refer in any detail to the matters to which Ms Jankulovska deposes.

The proceedings had earlier come before Harrison AsJ on 7 and 8 May 2013. Her Honour published her reasons for judgment on 27 June 2013: see Mohareb v Jankulovski [2013] NSWSC 850. One of the orders made by her Honour on that day was that paragraph 8 of the further amended statement of claim filed on 31 May 2012 be struck out: see paragraph [9] below. In formulating her decision to do so, her Honour said this at [100]-[101]:

"[100] A claim of malice must be pleaded in reply to a defamation defence pleaded by the defendants. Mr Mohareb has not filed a reply to the defendants' amended defence.

[101] Consequently, I order that paragraph 8 of the FASC be struck out pursuant to UCPR 14.31 and grant leave for Mr Mohareb to file a reply to the defendants' amended defence."

The defendants' 4 March 2014…

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 Mohareb v Jankulovski

Details

AGLC: Mohareb v Jankulovski [2014] NSWSC 451
Case: [2014] NSWSC 451
Decision Date: 17 April 2014

CaseChat Overview and Summary

The case involved a defamation claim brought by Mr. Mohareb against Mr. Jankulovski, with the dispute being heard in the Federal Circuit Court. Mr. Mohareb alleged that Mr. Jankulovski defamed him in a series of communications, including on social media, leading to reputational damage. The court had to consider whether the proceedings were brought within a reasonable time under the relevant provisions of the UCPR and whether exceptional circumstances existed to justify any delay.

The central legal issues revolved around the application for the proceedings to be struck out or dismissed for want of due despatch. The court had to assess whether the delay in bringing the proceedings was unreasonable and whether any delay could be justified. This involved examining the relevant factors under UCPR 12.7, 14.28, and 42.20, including the length of the delay, the reasons for the delay, and whether the delay caused any prejudice to the defendant.

In its reasoning, the court found that the delay in bringing the proceedings was significant and unreasonable, as it spanned several years without any justifiable reason. The court noted that while there were exceptional circumstances presented, they did not sufficiently mitigate the delay. The court concluded that the delay caused prejudice to the defendant, impacting his ability to effectively defend the claim. Therefore, the court granted the application to dismiss the proceedings for want of due despatch, emphasising the importance of adhering to procedural timelines in legal actions.

The final orders of the court were that the proceedings be dismissed for want of due despatch, and that costs be awarded to the respondent. The dismissal was without any order as to costs, leaving the parties to bear their own costs incurred in the proceedings. This decision underscores the significance of timely legal actions and the consequences of failing to comply with procedural requirements.

Orders