Paramasivam v Sabanathan

[2013] NSWCA 362

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Paramasivam v Sabanathan [2013] NSWCA 362

Hearing dates:

On the papers

Decision date:

29 October 2013

Before:

Gleeson JA;
Leeming JA

Decision:

Leave to appeal refused, with costs.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Catchwords:

APPEAL - when appeal lies - from interlocutory decision - leave to appeal from summary dismissal - proposed appeal devoid of merit - leave refused

Legislation Cited:

Vexatious Proceedings Act 2008

Cases Cited:

Jaycar Pty Ltd v Lombardo [2011] NSWCA 284
McMahon v Permanent Custodians Ltd [2013] NSWCA 275
Sharpe v Heywood [2013] NSWCA 192

Category:

Principal judgment

Parties:

Gajalakshmi Paramasivam (applicant)
Saraswathy Sabanathan (first respondent)
Tharmaratnam Sabanathan (second respondent)
Sabanathan Yohananda (third respondent)
Mahadevan Srithanan (fourth respondent)
Paramanathan Sethilnathan (fifth respondent)
Sakthidevy Mahadevan (sixth respondent)
Sellathurai Mahadevan (seventh respondent)
Subramaniam Tharmalingam (eighth respondent)

Representation:

Counsel:
Applicant (in person)
PA Maddigan (respondents)
Solicitors:
Bosscher Lawyers (NSW)

File Number(s):

2013/244449

 Decision under appeal 

Jurisdiction:

9111

Citation:

[2013] NSWSC 1033

Date of Decision:

2013-08-05 00:00:00

Before:

McCallum J

File Number(s):

2012/80864

Judgment

1. THE COURT: By a judgment delivered on 5 August 2013, the primary judge (a) gave reasons for setting aside certain subpoenas issued by the applicant, (b) dismissed the proceeding summarily on the defendants' application, but (c) declined to make orders under the Vexatious Proceedings Act 2008: [2013] NSWSC 1033. The applicant seeks leave to appeal from the dismissal of the proceedings (leave is required because her Honour's order was interlocutory). There is no challenge to the setting aside of the subpoenas, nor a cross-appeal in relation to the Vexatious Proceedings Act.

1. Only if the decision is attended with sufficient doubt to warrant its reconsideration on appeal will leave be granted: Sharpe v Heywood [2013] NSWCA 192 at [34]; McMahon v Permanent Custodians Ltd [2013] NSWCA 275 at [57]. Further, ordinarily, it is only appropriate to grant leave where there is an issue of principle, a question of general importance, or an injustice which is reasonably clear, in the sense of going beyond what is merely arguable: Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]. It is well established that it is not sufficient merely to show that the trial judge was arguably wrong: see Be Financial Pty Ltd as Trustee for Be Financial Operations Trust v Das [2012] NSWCA 164 at [32].

1. Here there is clearly no issue of principle or question of general importance. Her Honour formed the view the pleading disclosed no reasonable cause of action, and further considered that there was no point granting leave to replead. The plaintiff sued principally in defamation, although there was also an allegation of nuisance. The alleged facts principally concern statements made in court in Sri Lanka by the lawyer acting for some of the defendants in connection with the intestate estate of a relative. It is perfectly plain from a consideration of the pleading that it is very seriously defective and discloses no cause of action on its face. Essential elements of the torts of defamation and negligence are absent.

1. In our view, no appellable error is disclosed by her Honour's refusal to allow leave to replead. The applicant has identified eight questions in her summary of argument which are said to arise if leave were granted, of which three are directed to the use of evidence (but her Honour did not rely on evidence in order to strike out the pleading), three are directed to alleged breaches of natural justice (but there is no basis for this, and a review of the transcript makes it plain that the application was heard in a fair and even-handed manner) and the remaining two are, doing the best we can, unintelligible and in any event give rise to no reasonable basis for the grant of leave. Likewise, much of the argument contained in the applicant's summary is difficult to understand. Its flavour may be appreciated from its opening:

"It is submitted that '1. Fact is truth / Belief bound by the physical environment in which it is born. 2. The environment in which a fact is born is made up of the time and place of birth. 3. In terms of intellectual property - place is the minds of all observers present at that place at that time.' Hence the oath or affirmation in giving evidence, including through Affidavits. On this basis information provided to Court through these avenues are taken as 'facts' until proven otherwise/negated."

1. On settled principles governing the grant of leave, leave should be refused. There is no reason to displace the ordinary rule that costs follow the event.

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