Sawires v Price - [2022] NSWDC 390

District Court

New South Wales

Medium Neutral Citation: Sawires v Price [2022] NSWDC 390
Hearing dates: 1 September 2022
Date of orders: 1 September 2022
Decision date: 01 September 2022
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Orders:
(1)   Noting that Mr Sawires, the plaintiff, has not contacted the court as at 9:55am; the plaintiff’s telephone number [redacted] was called at 9:57am and the call failed.
(2)   Noting the Plaintiff was called a second time at 11am and the call failed for a second time.
(3) Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are permanently stayed.
(4)   The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis as agreed or assessed.

Catchwords:
TORT - defamation - plaintiff commences proceedings for publications arising from material obtained under subpoena in Local Court proceedings - plaintiff’s application to be released from his implied undertaking refused by the magistrate - application by defendant for proceedings to be struck out as an abuse of process - plaintiff fails to attend court - application granted

Legislation Cited:
Civil Procedure Act 2005 (NSW) s 67
Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 29.7

Cases Cited:
Ainsworth v Hanrahan (1991) 25 NSWLR 155
Attorney-General for Victoria v Bahonko [2011] VSC 352
Bahonko v Sterjov (2007) IR 43; [2007] FCA 1244
Bahonko v Sterjov (2008) 166 FCR 415
Hearne v Street (2008) 235 CLR 125; HCA 36
Lamb v Sherman [2021] QCA 290
Miller v RL Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported)
Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688
Riddick v Thames Board Mills Ltd [1977] 1 QB 881
Shiels v Manny; Manny v Shiels [2012] ACTCA 22
Victoria International Container Terminal v Lunt (2021) 271 CLR 132
Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 175

Category: Principal judgment
Parties: Plaintiff: Mr Emad Sawires
Defendant: Ms Christie Price
Representation:
Counsel:
Defendant: Ms S Jeliba
Solicitors:
Defendant: Mills Oakley Lawyers

File Number(s): 2020/00209460

Judgment

The application before the court

The plaintiff, by statement of claim filed on 16 July 2020, commenced proceedings for defamation against the defendant for two statements that she made, on 16 and 17 July 19, 2019 to an insurance company concerning proceedings the plaintiff had commenced against her in the Local Court for motor vehicle property damage. The information the plaintiff had gained about these conversations came from documents produced under subpoena in those proceedings.
The defendant brings an application for the following orders:

An order pursuant to s 67 of the Civil Procedure Act 2005 (NSW) that these proceedings be permanently stayed.

An order that the plaintiff pay the defendant’s costs of the defamation proceedings on an indemnity basis, as agreed a recess.

Such other order as this honourable Court deems fit.

The basis for the application is that, in order to bring proceedings for defamation reliant upon documents obtained in such a fashion, the court in…

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 Sawires v Price

Details

AGLC: Sawires v Price [2022] NSWDC 390
Case: [2022] NSWDC 390
Decision Date: 01 September 2022

CaseChat Overview and Summary

In the case of Sawires v Price, the plaintiff, Mr Sawires, initiated legal action against the defendant, Mr Price, for defamation. The dispute arose from publications that were based on material obtained by Mr Sawires under subpoena in proceedings before the Local Court. The case was heard in the Supreme Court of New South Wales. Mr Price applied for the proceedings to be struck out on the grounds that they constituted an abuse of process, as Mr Sawires had not complied with an implied undertaking not to rely on the subpoenaed material without first obtaining leave from the court. This application was made after Mr Sawires’ application to be released from his implied undertaking was refused by a magistrate. The court found that Mr Sawires' failure to attend court proceedings, despite multiple attempts to contact him, warranted the granting of Mr Price's application. Consequently, the court permanently stayed the proceedings under section 67 of the Civil Procedure Act 2005 (NSW) and ordered that Mr Sawires pay Mr Price's costs on an indemnity basis.

Orders

Orders of the court

Orders:

(1) Noting that Mr Sawires, the plaintiff, has not contacted the court as at 9:55am; the plaintiff’s telephone number [redacted] was called at 9:57am and the call failed.

(2) Noting the Plaintiff was called a second time at 11am and the call failed for a second time.

(3) Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are permanently stayed.

(4) The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis as agreed or assessed.

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:	Sawires v Price [2022] NSWDC 390
Hearing dates:	1 September 2022
Date of orders:	1 September 2022
Decision date:	01 September 2022
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Orders: (1) Noting that Mr Sawires, the plaintiff, has not contacted the court as at 9:55am; the plaintiff’s telephone number [redacted] was called at 9:57am and the call failed. (2) Noting the Plaintiff was called a second time at 11am and the call failed for a second time. (3) Pursuant to s 67 of the Civil Procedure Act 2005 (NSW), these proceedings are permanently stayed. (4) The plaintiff is to pay the defendant’s costs of the proceedings on an indemnity basis as agreed or assessed.
Catchwords:	TORT - defamation - plaintiff commences proceedings for publications arising from material obtained under subpoena in Local Court proceedings - plaintiff’s application to be released from his implied undertaking refused by the magistrate - application by defendant for proceedings to be struck out as an abuse of process - plaintiff fails to attend court - application granted
Legislation Cited:	Civil Procedure Act 2005 (NSW) s 67 Uniform Civil Procedure Rules 2005 (NSW) (“UCPR”) r 29.7
Cases Cited:	Ainsworth v Hanrahan (1991) 25 NSWLR 155 Attorney-General for Victoria v Bahonko [2011] VSC 352 Bahonko v Sterjov (2007) IR 43; [2007] FCA 1244 Bahonko v Sterjov (2008) 166 FCR 415 Hearne v Street (2008) 235 CLR 125; HCA 36 Lamb v Sherman [2021] QCA 290 Miller v RL Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported) Registrar, Supreme Court v McPherson [1980] 1 NSWLR 688 Riddick v Thames Board Mills Ltd [1977] 1 QB 881 Shiels v Manny; Manny v Shiels [2012] ACTCA 22 Victoria International Container Terminal v Lunt (2021) 271 CLR 132 Wallis v Valentine [2002] EWCA Civ 1034; [2003] EMLR 175
Category:	Principal judgment
Parties:	Plaintiff: Mr Emad Sawires Defendant: Ms Christie Price
Representation:	Counsel: Defendant: Ms S Jeliba Solicitors: Defendant: Mills Oakley Lawyers
File Number(s):	2020/00209460