Sarina v O'Shannassy (No.4) - [2020] FCCA 989

FEDERAL CIRCUIT COURT OF AUSTRALIA

SARINA & ANOR v O’SHANNASSY (No.4)

[2020] FCCA 989

Catchwords:

PRACTICE AND PROCEDURE – Application for an adjournment of hearing – whether adequate reasons given for inability to proceed with hearing – whether there would be any utility in granting an adjournment – application for adjournment refused.

Legislation:

Defamation Act 2005 (NSW), ss.33, 38

Cases cited:

Associated Dominions Assurance Society Proprietary Limited v John Fairfax & Sons Pty Ltd (1955) 72 NSW (WN) 250

Faruqi v Latham [2018] FCA 1328

Rush v Nationwide News Proprietary Limited [2018] FCA 357

Sarina & Anor v O’Shannassy [2019] FCCA 732
Sarina & Anor v O’Shannassy (No.2) [2019] FCCA 2802
Sarina v O'Shannassy [2019] NSWDC 246

First Applicant:

CLINTON SARINA

Second Applicant:

MARTIN GREEN

Respondent:

JOHN O’SHANNASSY

File Number:

SYG 1339 of 2018

Judgment of:

Judge Manousaridis

Hearing date:

16 April 2020

Date of Last Submission:

16 April 2020

Delivered at:

Sydney

Delivered on:

16 April 2020

REPRESENTATION

Counsel for the Applicants:

Mr R Rasmussen

Solicitors for the Applicant:

Kalantzis Lawyers

Counsel for the Respondent:

Mr T Crispin

Solicitors for the Respondent:

Lloyd & Lloyd Solicitors

ORDERS

The respondent's application for an adjournment is dismissed.

FEDERAL CIRCUIT COURT
OF AUSTRALIA
AT SYDNEY

SYG 1339 of 2018

CLINTON SARINA

First Applicant

MARTIN GREEN

Second Applicant

And

JOHN O’SHANNASSY

Respondent

REASONS FOR JUDGMENT

(Revised from Transcript)

Introduction

On 15 April 2020 there came for hearing before me claims the applicants, Mr Sarina and Mr Green, have brought against the respondent, Mr O’Shannassy, in defamation.
At the commencement of the hearing it became apparent that counsel for the respondent was seeking an order that the hearing be vacated. Counsel for the respondent informed me that the respondent had recently become aware of matters that ought to have been disclosed by the applicants when giving discovery, and that, having become aware of those matters, the respondent requires time to pursue lines of enquiry with a view to determining whether the defence should be amended.
Counsel for the applicants opposes the application. He submitted that the information of which the respondent says he had recently become aware was not material the applicants were required to discover because the material did not relate to any matter in question as defined in the pleadings and limited by the particulars that had been sought and provided on the defence.
Given that the scope of the contentions that were being made were made without affidavit evidence, I made the following orders:
1. The hearing is adjourned to 10:00 am on 16 April 2020.
2.By 5:00 pm on 15 April 2020 the respondent provide by email to the associate of Judge Manousaridis and to the legal representatives of the applicants:
(a)an affidavit or affidavits on which the respondent relies for adjourning the hearing;
(b)any draft amended defence the respondent will seek at some stage leave to file; and
(c)written submissions in support of the respondent’s application for the adjournment of the hearing.
3.The applicants are at liberty to send…

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: [2020] FCCA 989
Decision Date: 16 April 2020

CaseChat Overview and Summary

The proceeding involved an application by the defendant, Mr O'Shannassy, for an adjournment of a hearing before Judge Manousaridis in the Supreme Court of Victoria. The plaintiff, Ms Sarina, opposed the application. The dispute concerned the adequacy of the reasons provided by the defendant for his inability to proceed with the hearing and the potential utility of granting such an adjournment.

The central legal issue before the Court was whether the defendant had presented sufficient grounds to warrant an adjournment of the hearing. This required the Court to assess the reasons proffered for the defendant's non-attendance or inability to participate in the proceedings, and to consider whether granting an adjournment would serve any practical purpose in advancing the resolution of the dispute.

Judge Manousaridis refused the application for adjournment. The Court found that the reasons provided by the defendant were not adequate to justify delaying the hearing. Furthermore, the Court determined that there would be no utility in granting an adjournment, implying that the defendant's proposed course of action or the circumstances presented did not support the need for further delay. The Court proceeded with the hearing on the basis that the adjournment was not warranted.

Orders