Sarina v O'Shannassy - [2019] NSWDC 246

District Court

New South Wales

Medium Neutral Citation: Sarina v O’Shannassy [2019] NSWDC 246
Hearing dates: 9 May 2019
Date of orders: 12 June 2019
Decision date: 12 June 2019
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The plaintiff is to pay the defendant’s costs of the discontinuance under UCPR r 12.1 and of these proceedings on an indemnity basis.

Catchwords: COSTS – plaintiff commences proceedings in Federal Circuit Court for defamation for two emails published in New South Wales – defendant (the respondent in those proceedings) challenges the jurisdiction of the Federal Circuit Court – while awaiting the reserved decision of the Federal Circuit Court judge the plaintiff commences proceedings for one of those publications in the District Court - service of the defendant delayed for two months – application of extension of time for service - defendant, when served, foreshadows staying these proceedings as an abuse of process – hearing of application adjourned as Federal Circuit Court determines that it does have jurisdiction to hear the defamation claims – plaintiff seeks leave to discontinue these proceedings with costs – defendant seeks an order that the costs be payable on an indemnity costs basis – indemnity costs order made
Legislation Cited: Civil Procedure Act 2005 (NSW), s 67
Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18 and 50
Corporations Act 2001 (Cth), ss 447A and 1324
Defamation Act 2005 (NSW), s 23
Federal Circuit Court of Australia Act 1999 (Cth), s 18
Federal Court of Australia Act 1976 (NSW)
Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5
Local Act 2007 (NSW), s 33
Privacy Act 1988 (Cth)
Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 10.1, 12.1 and 12.11
Cases Cited: Alex v Australian Broadcasting Corporation [2015] NSWDC 78
Australian Hardboards Limited v Hudson Investment Group Limited [2007] NSWCA 104
Burbank Australia Pty Ltd v Luzinat & Ors [2000] VSC 128
Dale v Veda Advantage Information Services and Solution Limited [2009] FCA 305
Fordyce v Fordham (2006) 67 NSWLR 497
Frigger v Banning (No 3) [2017] FCA 221
Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63
Goodall v Nationwide News Pty Ltd (No. 2) [2007] FMCA 1427
Hunter v Hanson [2014] NSWCA 263
John Bridgeman Limited v Dreamscape Networks FZ-LLC [2018] FCA 1279
Kostov v Nationwide News Pty Limited [2018] NSWSC 1289
Maple v David Syme & Co Ltd [1975] 1 NSWLR 97
Merrett v Marinakos & Anor [2019] FCCA 541
Nandutu v University of Sydney [2018] FCA 1118
Oshlack v Richmond River Council (1998) 193 CLR 72
Packer v Meagher [1984] 3 NSWLR 486
R v Fischetti [No 5] [2016] ACTSC 213
Sarina v Fairfax Digital Australia and New Zealand Pty Ltd [2015] NSWDC 196
Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190
Sarina & Anor v O’Shannassy [2019] FCCA 732
Tahi v Oxican Pty Ltd [2018] FCCA 3722
Texts Cited: P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie’s Uniform Civil Procedure…

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.

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Details

Case: [2019] NSWDC 246
Decision Date: 12 June 2019

CaseChat Overview and Summary

Sarina brought defamation proceedings against O'Shannassy in the Federal Circuit Court, alleging that two emails published in New South Wales were defamatory. O'Shannassy challenged the court's jurisdiction, and while awaiting the outcome of this challenge, Sarina commenced separate proceedings in the District Court for one of the publications. Service of the defendant was delayed for two months, and an application for an extension of time was made. Upon being served, O'Shannassy foreshadowed staying the District Court proceedings as an abuse of process. The application was adjourned pending the outcome of the Federal Circuit Court's decision, which found that it had jurisdiction over the defamation claims. Sarina then sought leave to discontinue the District Court proceedings with costs, but O'Shannassy opposed this, arguing that the costs should be on an indemnity basis.

The court considered the legal issues surrounding the jurisdiction of the Federal Circuit Court, the abuse of process argument, and the appropriate costs order. Given the circumstances, the court found that the Federal Circuit Court did indeed have jurisdiction over the defamation claims. The court also concluded that there was no abuse of process in Sarina's decision to commence proceedings in the District Court, despite the pending Federal Circuit Court challenge. Regarding the costs, the court determined that an indemnity costs order was appropriate, taking into account the circumstances of the case and the delay in service.

In summary, the Federal Circuit Court found it had jurisdiction over the defamation claims, and there was no abuse of process in the District Court proceedings. The court ordered that Sarina pay O'Shannassy's costs of the discontinuance and of the proceedings on an indemnity basis.

Orders

Orders of the court

(1) The plaintiff is to pay the defendant’s costs of the discontinuance under UCPR r 12.1 and of these proceedings on an indemnity basis.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	Sarina v O’Shannassy [2019] NSWDC 246
Hearing dates:	9 May 2019
Date of orders:	12 June 2019
Decision date:	12 June 2019
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The plaintiff is to pay the defendant’s costs of the discontinuance under UCPR r 12.1 and of these proceedings on an indemnity basis.
Catchwords:	COSTS – plaintiff commences proceedings in Federal Circuit Court for defamation for two emails published in New South Wales – defendant (the respondent in those proceedings) challenges the jurisdiction of the Federal Circuit Court – while awaiting the reserved decision of the Federal Circuit Court judge the plaintiff commences proceedings for one of those publications in the District Court - service of the defendant delayed for two months – application of extension of time for service - defendant, when served, foreshadows staying these proceedings as an abuse of process – hearing of application adjourned as Federal Circuit Court determines that it does have jurisdiction to hear the defamation claims – plaintiff seeks leave to discontinue these proceedings with costs – defendant seeks an order that the costs be payable on an indemnity costs basis – indemnity costs order made
Legislation Cited:	Civil Procedure Act 2005 (NSW), s 67 Competition and Consumer Act 2010 (Cth), Sch 2, Australian Consumer Law, ss 18 and 50 Corporations Act 2001 (Cth), ss 447A and 1324 Defamation Act 2005 (NSW), s 23 Federal Circuit Court of Australia Act 1999 (Cth), s 18 Federal Court of Australia Act 1976 (NSW) Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth), s 5 Local Act 2007 (NSW), s 33 Privacy Act 1988 (Cth) Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 10.1, 12.1 and 12.11
Cases Cited:	Alex v Australian Broadcasting Corporation [2015] NSWDC 78 Australian Hardboards Limited v Hudson Investment Group Limited [2007] NSWCA 104 Burbank Australia Pty Ltd v Luzinat & Ors [2000] VSC 128 Dale v Veda Advantage Information Services and Solution Limited [2009] FCA 305 Fordyce v Fordham (2006) 67 NSWLR 497 Frigger v Banning (No 3) [2017] FCA 221 Ghosh v Ninemsn Pty Ltd & Ors [2013] NSWDC 63 Goodall v Nationwide News Pty Ltd (No. 2) [2007] FMCA 1427 Hunter v Hanson [2014] NSWCA 263 John Bridgeman Limited v Dreamscape Networks FZ-LLC [2018] FCA 1279 Kostov v Nationwide News Pty Limited [2018] NSWSC 1289 Maple v David Syme & Co Ltd [1975] 1 NSWLR 97 Merrett v Marinakos & Anor [2019] FCCA 541 Nandutu v University of Sydney [2018] FCA 1118 Oshlack v Richmond River Council (1998) 193 CLR 72 Packer v Meagher [1984] 3 NSWLR 486 R v Fischetti [No 5] [2016] ACTSC 213 Sarina v Fairfax Digital Australia and New Zealand Pty Ltd [2015] NSWDC 196 Sarina v Fairfax Media Publications Pty Ltd [2018] FCAFC 190 Sarina & Anor v O’Shannassy [2019] FCCA 732 Tahi v Oxican Pty Ltd [2018] FCCA 3722
Texts Cited:	P. Taylor SC, Justice G. Bellew, M. Meek SC, Dr E. Elms OAM, Ritchie’s Uniform Civil Procedure…