Mohareb v Palmer

[2015] NSWDC 134

District Court

New South Wales

Medium Neutral Citation:	Mohareb v Palmer [2015] NSWDC 134
Hearing dates:	5 March 2015
Date of orders:	05 March 2015
Decision date:	05 March 2015
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	See section under Orders after [47]
Catchwords:	TORT - defamation - three successive statements of claim drafted by litigant in person fail to set out a properly pleaded and particularised case in defamation - defendants' application under UCPR r 12.2 for summary dismissal - whether additional claims for assault should also be dismissed on the basis of the trivial nature of any injury - need for caution in summary dismissal application where the party in default is a litigant in person, the issues of law are complex, there are no actual failures to comply with timetables and the claim is not unmeritorious on its face - application for summary dismissal refused - challenge to form and capacity of imputations - challenges to pleading of liability for publication, identification and particulars of downloading - substantial repleading of claim necessary - costs of the amendment and argument to be paid by the plaintiff on the ordinary basis but to be assessed forthwith
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW), r 12.2
Cases Cited:	Bishop v New South Wales [2000] NSWSC 1042 Byrne v Deane [1937] 1 KB 818 Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244 Cranbrook School v Stanley [2002] NSWCA 290 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 Facer v Wolfe (2013) 17 DCLR (NSW) 391 Frawley v State of New South Wales [2006] NSWSC 248 Jenman v McIntyre [2013] NSWSC 1100
Category:	Procedural and other rulings
Parties:	Plaintiff: Nader Mohareb First Defendant: Matt Palmer Second Defendant: Annette Palmer
Representation:	Counsel: Plaintiff: In person Defendant: Mr M Lewis Solicitors: Plaintiff: In person Defendant: Kennedys
File Number(s):	2014/243522
Publication restriction:	None

Judgment

1. These are reasons for the rulings that I made on 5 March 2015 refusing to make the order for summary dismissal sought by the defendants and directing the plaintiff to file a further amended statement of claim.

2. The defendants bring an application for summary dismissal of the plaintiff’s claim pursuant to r 12.2 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) by reason of asserted defects in successive statements of claim and failures to provide answers to particulars.

3. The application was foreshadowed on 17 November 2014. An amended draft pleading prepared by Mr Dibb of counsel was provided and an application to strike out portions of the statement of claim, as well as for summary judgment, was listed for argument on Friday 20 February 2015.

4. On 20 February 2015 neither party was ready to proceed, and I made orders which included the following:

1. Defendant’s application to strike out the plaintiff’s statement of claim is listed for argument before Gibson DCJ on Thursday 5 March 2015 at 2:00pm (estimate…