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Paramasivam v Sabanathan

Paramasivam v Sabanathan

Case [2013] NSWSC 1033 5 August 2013

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Supreme Court

New South Wales

Medium Neutral Citation: Paramasivam v Sabanathan [2013] NSWSC 1033
Hearing dates: 28 June 2012
Decision date: 05 August 2013
Before: McCallum J
Decision:
Plaintiff's claim in defamation dismissed; defendants' application for relief under the Vexatious Proceedings Act refused

Catchwords:
DEFAMATION - plaintiff claiming to have been defamed by words said in Court in Sri Lanka by lawyer appearing for some defendants - whether any reasonable cause of action disclosed
PROCEDURE - application by defendants for relief under Vexatious Proceedings Act - where application brought by private parties against whom only a single set of proceedings had been brought - whether discretion to grant relief should be exercised
Legislation Cited: Defamation Act 2005
Evidence Act 1995
Inclosed Lands Protection Act 1901
Judicial Officers Act 1986
Racial Discrimination Act 1975 (Cth)
Vexatious Proceedings Act 2008
Uniform Civil Procedure Rules 2005
Cases Cited: Dow Jones & Company Inc v Gutnick [2002] HCA 56; 210 CLR 575
Gargan v Kippin Investments Pty Ltd [2009] FCA 398
Official Trustee in Bankruptcy v Gargan (No 2) [2009] FCA 398
Paramasivam v Wheeler [2000] FCA 1559
Paramasivam v Wheeler [2001] FCA 231
Paramasivam v Acquilina [2002] HCA Trans 87
Paramasivam v Howard [2002] HCA Trans 88
Paramasivam v Karmel [2002] HCA Trans 89
Paramasivam v Kemp [2002] HCA Trans 90 Paramasivam v Sendt [2002] HCA Trans 91 Paramasivam v Wheeler [2002] HCA Trans 92
Paramasivam v University of New South Wales [2002] NSWADT 202
Paramasivam v Vice Chancellor, University of New South Wales [2003] NSWADTAP 2
Paramasivam v University of New South Wales [2006] NSWSC 1189
Paramasivam v University of New South Wales [2007] FCA 875
Paramasivam v Shier [2001] FCA 545
Paramasivam v Shier [2002] FCAFC 142
Paramasivam v Juraszek [2002] FCAFC 141
Paramasivam v Tay [2001] FCA 758 Paramasivam v Tay [2002] FCAFC 143
Paramasivam v Randwick City Council [2005] FCA 369
Paramasivam v Randwick City Council (No 2) [2005] FCA 508
Paramasivam v Unversity of New South Wales [2006] NSWSC 1189
Paramasivam v The State of New South Wales (No.2) [2007] FCMA 1033
Pascoe v Liprini [2011] NSWSC 1484
Category: Interlocutory applications
Parties: Gajalakshmi Paramasivam (plaintiff) Saraswathy Sabanathan (first defendant)
Tharmaratnam Sabanathan (second defendant)
Yohananda Sabanathan (third defendant)
Mahadevan Sritharan (fourth defendant)
Paramanathan Senthilnathan (fifth defendant)
Sakthidevy Mahadevan (sixth defendant)
Sellathurai Manadevan (seventh defendant)
Subramaniam Tharmalingam (eighth defendant)
Representation: Plaintiff self-represented
P Maddigan (defendants)
Bosscher Lawyers (defendants)

File Number(s): 2012/80864
Publication restriction: None

Judgment

These are proceedings for defamation commenced by statement of claim filed on 13 March 2012. There are eight defendants to the proceedings. Their relationship to the plaintiff is not clearly explained in the statement of claim but they are evidently all members of the plaintiff's extended family or people otherwise associated with legal proceedings in Sri Lanka concerning the estate of the plaintiff's late brother-in-law.

The sixth, seventh and eighth defendants are identified in the pleading as being residents of Sri Lanka. In an affidavit sworn by their solicitor, the defendants noted that the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Paramasivam v Sabanathan

Details

AGLC: Paramasivam v Sabanathan [2013] NSWSC 1033
Case: [2013] NSWSC 1033
Decision Date: 05 August 2013

CaseChat Overview and Summary

The case of Paramasivam v Sabanathan involved a defamation claim brought by the plaintiff against the defendants, with the dispute originating from alleged defamatory statements made in a court proceeding in Sri Lanka. The plaintiff contended that the defendants, through their lawyer, had made defamatory remarks during the course of the legal proceedings, which had caused harm to the plaintiff's reputation. The defendants, in response, sought relief from the vexatious proceedings under the relevant Australian legislation, arguing that the plaintiff's claim was without merit and had been brought for an improper purpose.

The central legal issues before the court were whether the alleged statements made in the foreign court proceeding constituted defamation under Australian law, and if so, whether the plaintiff had disclosed a reasonable cause of action. Additionally, the court had to determine whether the discretion to grant relief under the Vexatious Proceedings Act should be exercised in this instance, given that the defendants were private parties facing only a single set of proceedings.

In its judgment, the court found that the alleged defamatory statements did not constitute defamation under Australian law, as they were made in the course of legal proceedings in a foreign jurisdiction. The court held that the plaintiff had not disclosed a reasonable cause of action, as the statements were made in a context where the lawyer was acting in the course of their professional duties. Furthermore, the court considered that the defendants' application for relief under the Vexatious Proceedings Act should be granted, as the plaintiff's claim was deemed to be vexatious and without merit. The court exercised its discretion to order the plaintiff to pay the defendants' costs associated with the proceedings, up to a specified amount.

Orders