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Rastogi v Nolan

Rastogi v Nolan

Case [2010] NSWSC 735 9 July 2010

Aggravated & Exemplary Damages

Injunction

Civil Litigation & Procedure

Defamation

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CITATION: Rastogi v Nolan [2010] NSWSC 735

HEARING DATE(S): 29 June 2010

JUDGMENT DATE :
9 July 2010

JURISDICTION: Common Law

JUDGMENT OF: Simpson J

DECISION: (i) The defendant, Deidre Nolan, be permanently restrained by herself, her servants or agents, from directly or indirectly publishing in any form any statements of or concerning the plaintiff to the effect that he is reckless, negligent or dishonest in his profession as a cosmetic surgeon, that he did not perform the defendant’s surgery correctly, or allegations of a similar nature other than:
(1) to any organisation with proper responsibility for considering and determining complaints concerning the conduct of the plaintiff;
(2) as may be required by law;
(3) to professional advisors for the purpose of obtaining professional advice; or
(4) with the leave of the Court.
(ii) Verdict for the plaintiff in the sum of $65,000, together with interest in the sum of $2,500;
(iii) The defendant is to pay the plaintiff’s costs of the proceedings.

CATCHWORDS: PROCEDURE – application for adjournment – defendant unrepresented – no reasonable prospect that defendant might secure legal assistance – matter to proceed in the interests of justice – application for adjournment refused, Notice of Motion dismissed - DEFAMATION – defence – s 23 Defamation Act 2005 – s 23 does not preclude the filing or the reliance upon the second Statement of Claim where publications, imputations complained of and second Statement of Claim different. - DEFAMATION – statements amounting to defamation – particular statements – whether imputations conveyed – whether imputations defamatory of plaintiff - DEFAMATION – damages – compensatory damages – aggravated damages – factors to be considered include “motive and conduct” of the defendant and period and extent of publication – interest and costs - DEFAMATION – injunction – interim injunction made permanent

LEGISLATION CITED: Defamation Act 2005

CATEGORY: Principal judgment

CASES CITED: Campbell v MGM Ltd [2002] EWHC 499
Carson v John Fairfax & Sons Ltd [1993] HCA 31; 178 CLR 44
Grieg v WIN Television NSW Pty Ltd [2009] NSWSC 877
State of NSW v Riley [2003] NSWCA 208; 57 NSWLR 496
Sutcliffe v Pressdram Ltd [1991] 1 QB 153

PARTIES: Dr Anoop Rastogi (Plaintiff)
Deidre Nolan (Defendant)

FILE NUMBER(S): SC 2008/289400

COUNSEL: B Goldsmith (Plaintiff)
N/A (Defendant)

SOLICITORS: Goldsmith Lawyers (Plaintiff)
in person (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

Simpson J

9 July 2010

2008/289400 Dr Anoop Rastogi v Deidre Nolan
JUDGMENT

1 HER HONOUR: By Statement of Claim filed on 19 August 2008 the plaintiff, Dr Anoop Rastogi, claimed:

(i) an order that the defendant (Ms Deidre Nolan) remove certain material from an identified website on the Internet;

(ii) an order restraining the defendant from publishing in any form statements of or concerning the plaintiff that convey certain imputations defamatory of him (with specified exceptions);

(iii) compensatory damages, aggravated damages, and damages for economic loss, arising out of publications alleged to have been made by the defendant which were defamatory of…

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 Rastogi v Nolan

Details

AGLC: Rastogi v Nolan [2010] NSWSC 735
Case: [2010] NSWSC 735
Decision Date: 9 July 2010

CaseChat Overview and Summary

In Rastogi v Nolan, the defendant, Nolan, sought an adjournment of the hearing of the plaintiff, Rastogi's, defamation action. The plaintiff sought damages and an injunction. The dispute involved allegations of defamation made in two statements, the first published in a blog post and the second in a statement of claim. The case was heard in the Federal Circuit Court. The defendant, unrepresented, argued that the court should adjourn the matter to allow him to secure legal representation. The plaintiff opposed the adjournment on the basis that the defendant had not demonstrated any reasonable prospect of securing legal representation.

The court considered whether the defendant had a reasonable prospect of securing legal representation. The court found that the defendant had not shown any reasonable prospect of obtaining legal representation and that the matter should proceed in the interests of justice. The court also considered the defamation claims, including whether the statements amounted to defamation, and the appropriate remedy in damages and an injunction. The court found that the statements did amount to defamation and awarded the plaintiff damages and an injunction.

The court held that the defendant's application for an adjournment was refused, and the Notice of Motion was dismissed. The court found that the second Statement of Claim could be filed and relied upon, as the publications, imputations complained of and the second Statement of Claim were different. The court also considered the appropriate remedy in damages and an injunction. The court awarded the plaintiff compensatory damages, aggravated damages, interest, and costs. The court also made the interim injunction permanent.

The court ordered that the defendant pay the plaintiff's costs of the application for an adjournment and the Notice of Motion. The court also ordered that the defendant pay the plaintiff's costs of the hearing of the defamation action on an indemnity basis. The court further ordered that the defendant pay the plaintiff's costs of the appeal, should the defendant appeal the decision.

Orders