O'Shanassy v Turland (No 2)

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District Court


New South Wales

Medium Neutral Citation: O'Shanassy v Turland (No 2) [2025] NSWDC 23
Hearing dates: 13 February 2025
Date of orders: 13 February 2025
Decision date: 13 February 2025
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1)   Plaintiff’s application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs.

(2) Plaintiff’s application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge.

(3)   General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024.

(4)   Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument.

Catchwords:

TORT – defamation – jury trial fixed to commence on 7 March 2025 – application by plaintiff to challenge the contextual imputations on the basis that they did not differ in substance and, if separately conveyed, were incapable of “swamping” the plaintiff’s imputations – whether application should be determined now or stood over to the trial – application stood over to the trial

Legislation Cited:

Civil Procedure Act 2005 (NSW), s 98

Defamation Act 2005 (NSW), s 26(1)(a) and (b)

Environment Planning and Assessment Act 1979 (NSW), s 125(1)

Uniform Civil Procedure Rules 2005 (NSW), rr 14.28, 42.20

Cases Cited:

Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175

Duma v Fairfax Media Publications Pty Limited (No 2) [2021] FCA 1299

Fairfax Media Publications Pty Ltd v Kermode (2011) 81 NSWLR 157; [2011] NSWCA 174

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; [1964] HCA 69

Greiss v Seven Network (Operations) Limited (No 2) [2024] FCA 98

McGrane v BTQ Channel 7 [2011] QSC 290

McGrane v Channel Seven Brisbane Pty Ltd [2012] QSC 133

Mohammed v Nationwide News Pty Ltd (No 2) [2016] NSWSC 1365

Pettiona v Nationwide News Pty Ltd [2019] FCA 1690

Plato Films Ltd v Speidel [1961] AC 1090

Seven Network (Operations) Limited v Greiss [2024] FCAFC 162

Woolf v Brandt [2023] NSWCA 290

Texts Cited:

D K Rolph, Rolph on Defamation (2nd ed., 2024, Thomson Reuters) at 313

NSW Law Reform Commission, Defamation [1971] LRC 11

NSW Legislative Assembly, Defamation Bill Second Reading (Hansard), 27 February 1974 at 817, 819, 854

Category:Procedural rulings
Parties: Paul O’Shanassy (Plaintiff)
Gary Turland (Defendant)
Representation:

Counsel:
Mr White SC with Mr A Flick (Plaintiff)
Mr Sibtain SC with Mr T Senior (Defendant)

Solicitors:
Agility Legal (Plaintiff)
RGSLAW (Defendant)
File Number(s): 2017/00384953
Publication restriction: Nil

Judgment

The applications before the court

  1. This defamation action is fixed for hearing as a 10-day jury trial commencing on Monday 3 March 2025 before Wass SC DCJ.

  2. The claim arises from two slanders made in two council meetings by the defendant, a councillor at the Wingecarribee Shire Council,…

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Details
Case
[2025] NSWDC 23
Decision Date

CaseChat Overview and Summary

In the matter of O'Shanassy v Turland, the plaintiff sought to challenge certain imputations in the context of a defamation case. The case is set for a jury trial on 7 March 2025. The plaintiff argued that the contextual imputations in question did not differ in substance from the imputations he sought to rely on, and that if these contextual imputations were conveyed separately, they could not overwhelm the plaintiff's imputations. The plaintiff asked for a determination of these issues prior to the trial.

The court was required to decide whether the application should be determined at that time or if it should be deferred until the trial. The plaintiff requested rulings on specific sections of the Defamation Act 2005 (NSW), particularly in relation to the plaintiff's imputations and the contextual imputations. The court needed to weigh the appropriateness of resolving these issues prior to the trial against the potential impact on the proceedings.

The court determined that the application should be deferred until the trial. The plaintiff's application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson was refused with costs. Additionally, the plaintiff's application for rulings pursuant to UCPR r 14.28 concerning the sections of the Defamation Act 2005 (NSW) was stood over to the trial judge. The court also granted general access to the documents produced by Westpac in response to the subpoena issued on 18 December 2024. The judge was instructed to provide reasons for her decision and, in the case of the subpoena argument, to provide a timetable for the costs argument.

Orders

Orders of the court

(1) Plaintiff’s application for his Notice of Motion filed on 18 December 2024 to be determined by Judge Gibson is refused with costs.

(2) Plaintiff’s application for rulings pursuant to UCPR r 14.28 concerning s 26(1)(a) and (b) of the Defamation Act 2005 (NSW), as set out in the Notice of Motion filed on 18 December 2024, is stood over to the trial judge.

(3) General access to packet S-19, being the documents produced by Westpac to subpoena issued on 18 December 2024.

(4) Her Honour to provide reasons for decision and in the case of the subpoena argument, a timetable for the costs argument.

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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