District Court
New South Wales
- Amendment notes
Medium Neutral Citation: Mohareb v Palmer (No. 3) [2016] NSWDC 38 Hearing dates: 18 February 2016 Date of orders: 04 March 2016 Decision date: 04 March 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff’s Notice of Motion dismissed.
(2) Plaintiff pay defendant’s costs of the Notice of Motion and of this application on an indemnity basis.
(3) Defendant’s Notice of Motion dismissed with no order as to costs.Catchwords: PROCEDURE – application by plaintiff for leave to prosecute first defendant for perjury under s 338(1)(c) Crimes Act 1900 (NSW) – whether any false statement (an asserted omission from an affidavit prepared by the first defendant’s legal advisers) was made by the first defendant in connection with the proceedings and identified with sufficient precision – application dismissed Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60 and 73
Crimes Act 1900 (NSW), s 338
Evidence Act 1995 (NSW)Cases Cited: Brimaud v Honeysett Pty Ltd (1988) 217 ALR 44
Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575
Fairfax Digital Australia and New Zealand Pty Ltd v Ibrahim & Ors (2012) 293 ALR 384
Hickinbotham v Leach (1842) 152 ER 510
Michail v Mount Druitt and Area Community Legal Centre Inc [2015] NSWCA 396
Mohareb v Palmer [2015] NSWDC 134
Mohareb v Palmer (No. 2) [2015] NSWDC 141
Moss v McIlveen [2011] NSWCA 77
Sims v Wran [1984] 1 NSWLR 317Texts Cited: George, P; Allen, M; Benson, S; Collins, J; Mattson, J; Munsie, J; Rubagotti, G; Stuart, G, 2014, “Social Media and the Law” (LexisNexis Butterworth, 2014) Category: Procedural and other rulings Parties: Plaintiff: Nader Mohareb
First Defendant: Matt Palmer
Second Defendant: Annette PalmerRepresentation: Counsel:
Solicitors:
Plaintiff: Mr C J Dibb
Defendant: Mr B Gelonesi (solicitor)
Plaintiff: Mr N Mohareb (in person)
Defendant: GP Legal
File Number(s): 2014/243522 Publication restriction: None
Judgment
The parties’ applications.
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The plaintiff, Mr Mohareb, brought proceedings for defamation which are now concluded.
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The plaintiff and first defendant now come before the court seeking relief of an unusual nature, so I propose to set out the contents of their Notices of Motion in full.
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The plaintiff’s Notice of Motion on 15 December 2015 seeks orders as follows:
Leave pursuant to s 338(1)(c) Crimes Act 1900 to prosecute the Defendant/Respondent for the offence of perjury in his affidavit of 23 April 2015 (the Affidavit) as particularised below:
Particulars
The Affidavit was on oath.
On 23 April 2015, the Affidavit was read in the District Court of New South Wales judicial proceedings 2014/243522 as part of an application for an order pursuant to s73 Civil Procedure Act 2005 declaring that those proceedings had been settled.
The Affidavit was material to those proceedings in that it was relied upon for the purpose of showing why an apology - the publication of which on the Facebook page of the Scotland Island Community (the Page) was the basis of an agreement to settle those proceedings - was not visible on…
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- Case
- [2016] NSWDC 38
- Decision Date
CaseChat Overview and Summary
The court examined the criteria for granting leave to prosecute under the relevant section of the Crimes Act. It assessed whether the plaintiff had provided a clear and specific identification of the alleged false statement and whether the statement was made in connection with the proceedings. The court held that the plaintiff had not met the required standard of precision in identifying the false statement, and therefore, the application for leave to prosecute was dismissed.
The court further found that the plaintiff’s application was not sufficiently detailed to warrant the granting of leave. The plaintiff had not demonstrated that the alleged omission from the affidavit was a clear and specific false statement made in connection with the proceedings. Consequently, the court dismissed the plaintiff’s Notice of Motion and ordered the plaintiff to pay the first defendant’s costs on an indemnity basis. Additionally, the court dismissed the first defendant’s Notice of Motion with no order as to costs.
Orders
Orders of the court
(1) Plaintiff’s Notice of Motion dismissed.
(2) Plaintiff pay defendant’s costs of the Notice of Motion and of this application on an indemnity basis.
(3) Defendant’s Notice of Motion dismissed with no order as to costs.
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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