Otto v Nine Network Australia Pty Ltd

District Court

New South Wales

Medium Neutral Citation:	Otto v Nine Network Australia Pty Ltd [2016] NSWDC 308
Hearing dates:	17 November 2016
Date of orders:	17 November 2016
Decision date:	17 November 2016
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Upon the undertaking of the solicitor for the plaintiff to file the Notice of Motion dated 11 November 2016 in the registry in 7 days, grant leave to the plaintiff to move upon the notice of motion for leave to continue the proceedings commenced by statement of claim filed on 22 July 2016. (2) Notice of motion granted. (3) Plaintiff pay defendant’s costs of 20 October 2016 and of 17 November 2016.
Catchwords:	TORT – defamation – plaintiff commences but discontinues proceedings against the defendant in the Supreme Court of Queensland – plaintiff commences fresh proceedings for the same publication by the same defendant in the District Court of New South Wales – application by plaintiff under s 23 Defamation Act 2005 (NSW) for leave nunc pro tunc to continue the proceedings commenced in the District Court – turns on own facts – no issue of principle
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 56 – 62 Defamation Act 2005 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), r 28.2
Cases Cited:	Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998) Carey v Australian Broadcasting Corporation (2010) 77 NSWLR 136 Carey v Australian Broadcasting Corporation (2012) 200 ALR 348 Ghosh v Miller [2016] NSWSC 1574 Sullivan v Griffin [2012] NSWSC 687
Category:	Procedural and other rulings
Parties:	Plaintiff: David Otto Defendant: Nine Network Australia Pty Ltd (ACN 008 685 407)
Representation:	Counsel: Plaintiff: Mr I Kirgiz Defendant: Ms L Barnett   Solicitors: Plaintiff: Carters Law Firm Defendant: Macpherson Kelley
File Number(s):	2016/221796
Publication restriction:	None

JudgmenT

The application before the court

1. The plaintiff, by Notice of Motion dated 11 November 2011, seeks leave nunc pro tunc pursuant to s 23 Defamation Act 2005 (NSW) to continue the proceedings commenced by the statement of claim filed on 22 July 2016. The plaintiff relies upon the affidavit of David Otto (a.k.a. David Ashworth) affirmed on 11 November 2016.

2. The defendant neither consents to, nor opposes, the relief sought.

3. The previous proceedings which trigger the s 23 application are proceedings commenced by the plaintiff in the Supreme Court of Queensland, under the name “David Ashworth” (the plaintiff’s stage name), and filed in that court’s registry on 27 July 2015, the contents of which are described in more detail below.

The defendant’s broadcast and the plaintiff’s response

4. The circumstances leading to this application are as follows. On 24 July 2015 “A Current Affair” broadcast a program in which the plaintiff was referred to, amongst other epithets, as “David Otto, also known as David Ashworth, loves a business scam and also loves the highlife”. The broadcast went on to describe those business activities and concluded with the warning:

“He’s got plenty of tricks doesn’t he, and if you’ve been…