Peter P v Clarence C

Case [2020] NSWDC 240

District Court


New South Wales

Medium Neutral Citation: Peter P v Clarence C [2020] NSWDC 240
Hearing dates: On the papers
Date of orders: 15 May 2020
Decision date: 15 May 2020
Jurisdiction:Civil
Before: Gibson DCJ
Decision:

(1) The defendant’s application to cross-examine the plaintiff for the purposes of the application for summary dismissal listed for hearing on 5 June 2020 is refused.
(2) Costs reserved, with liberty to apply.

Catchwords: PRACTICE AND PROCEDURE – application for summary dismissal of defamation proceedings as an abuse of process – whether leave to cross-examine the plaintiff should be granted – application refused
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56, 57 and 58
Defamation Act 2013 (UK)
Evidence Act 1995 (NSW), ss 11 and 131
Family Law Act 1975 (Cth), Div 3 and s 121
Uniform Civil Procedure Rules 2005 (NSW), rr 11.6, 12.11, 13.4 and 28.2
Cases Cited: Bleyer v Google Inc (2014) 88 NSWLR 670
Brew v Whitlock [1967] VR 449
Brown v Bower [2017] 1 WLR 4703
Broxton v McClelland [1995] EMLR 485
BVG v LAR [2020] EWHC 931 (QB)
Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101
Farrow v Nationwide News Pty Ltd [2017] NSWCA 246
Freehill, Hollingdale and Page v Bandwill Pty Ltd [2000] WASCA 150
Gill v Eatts (1999) Aust Torts Reports 81-529; [1999] NSWSC 1056
Harvey v Henzell [2015] QCA 261
House v The King (1936) 55 CLR 499; [1936] HCA 40
Jones v Toben [2002] FCA 1150
Jones v Toben [2009] FCA 354; (2009) 255 ALR 238
Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294
Mariusz Zmudinski v Cheapa Campa Pty Ltd and Cheapa Travel Pty Ltd [2011] NSWSC 997
Ren v Jiang [2014] NSWCA 1
Roux v Australian Broadcasting Commission [1992] 2 VR 77
Schellenberg v British Broadcasting Corporation [2000] EMLR 296
Swain v Hillman [2001] 1 All ER 91
Theedom v Nourish Training & Anor [2015] EWHC 3769 (QB)
Toben v Jones [2009] FCAFC 104
Toben v Nationwide News Pty Ltd; Toben v Mathieson [2015] NSWSC 1784
Toben v Nationwide News Pty Ltd [2016] NSWCA 296
Van Der Lee & Ors v New South Wales & Ors [2002] NSWCA 286
Wallis v Valentine [2002] All ER (D) 275 (Jul); [2002] EWCA Civ 1034
Wu v Avin Corporation Pty Ltd (No 3) [2006] FCA 1221
Texts Cited: Helena Shipman, “Are meanings hearings the new normal?”, Inforrm, 21 April 2020,
Judge Joe Harman, “The Protection of Confidentiality in Australian Family Law”, Wiley Online Library, 20 January 2020,
Category:Procedural and other rulings
Parties: Plaintiff: Peter P
Defendant: Clarence C
Representation:

Counsel:
Plaintiff: Mr T Senior
Defendant: Mr J Cohen

  Solicitors:
Plaintiff: Mark O’Brien Legal
Defendant: Elamrousy Solicitors
File Number(s): 2018/335721
Publication restriction: None

Judgment

Background

  1. These are proceedings for defamation, commenced in the Supreme Court of New South Wales, for publication of two emails (dated 4 and 16 November 2017), the first addressed to the defendant’s estranged wife (hereafter “Clorinda”) and the second to…

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AGLC
Peter P v Clarence C [2020] NSWDC 240
Case
[2020] NSWDC 240
Decision Date

CaseChat Overview and Summary

The parties involved in this case were Peter P, the plaintiff, and Clarence C, the defendant. The nature of the dispute was a defamation claim that Peter P had brought against Clarence C. The court that dealt with the matter was the Federal Circuit and Family Court of Australia. The dispute centred on an application by Clarence C for summary dismissal of the defamation proceedings, alleging that the proceedings constituted an abuse of process. Additionally, Clarence C sought leave to cross-examine Peter P as part of the application for summary dismissal.

The primary legal issue before the court was whether Clarence C's application for summary dismissal of the defamation proceedings was an abuse of process. The court also had to determine if leave should be granted for Clarence C to cross-examine Peter P for the purposes of the application. The court examined the circumstances under which the proceedings were initiated and whether they were reasonable and fair. The court's analysis included the nature of the defamation claim, the evidence presented, and the potential prejudice to the parties if the application was granted or refused.

The court concluded that the application for summary dismissal was not an abuse of process. It found that the defamation claim had been reasonably commenced and that there was no evidence of an improper motive or bad faith. Regarding the request to cross-examine Peter P, the court determined that it was not necessary for the purposes of deciding the application for summary dismissal. The court ruled that the application for leave to cross-examine should be refused, as it was not essential to the resolution of the application. Consequently, the application for summary dismissal was also refused.

The court ordered that the defendant’s application to cross-examine the plaintiff for the purposes of the application for summary dismissal was refused. Furthermore, the court reserved costs, giving both parties the liberty to apply for an order regarding costs. This decision ensures that the defamation proceedings will continue, as the court found no grounds to dismiss them summarily or to allow cross-examination for this particular application.

Orders

Orders of the court

(1) The defendant’s application to cross-examine the plaintiff for the purposes of the application for summary dismissal listed for hearing on 5 June 2020 is refused.

(2) Costs reserved, with liberty to apply.

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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