Shaloub v Buchanan
[2003] NSWSC 682
•30 July 2003
CITATION: SHALOUB & ANOR v BUCHANAN [2003] NSWSC 682 HEARING DATE(S): 7 November 2002 JUDGMENT DATE:
30 July 2003JUDGMENT OF: Levine J DECISION: 1 I dismiss the plaintiffs' notice of motion. The plaintiffs are to pay the defendant's costs. ; 2 This action is to be placed for general management in the Common Law Division. CATCHWORDS: Procedure - SCR Pt 20 r 4 - abandoned cause of action - injurious falsehood CASES CITED: Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388
Roberts v Bass (2002) 194 ALR 161
Shaloub & Anor v Buchanan [2002] NSWSC 622PARTIES :
NEVILLE JOHN SHALOUB
(First plaintiff)LORNA ROSE SHALOUB
(Second plaintiff)v
JOHN BUCHANAN
(Defendant)
FILE NUMBER(S): SC 20145 OF 2002 COUNSEL: T Hale SC / E White
JS Wheelhouse
(Plaintiffs)
(Defendant)SOLICITORS: Ormsby Flower
Harrington Maguire & O'Brien
(Plaintiffs)
(Defendant)
[2003] NSWSC 682
IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONJUSTICE DAVID LEVINE
WEDNESDAY JULY 30 2003
20145 OF 2002
NEVILLE JOHN SHALOUB
(First plaintiff)LORNA ROSE SHALOUB
(Second plaintiff)JOHN BUCHANANv
(Defendant)
JUDGMENT (Procedure – SCR Pt 20 r 4 – abandoned cause of action – injurious falsehood)
1 In this action, by notice of motion filed on 30 October 2002, the plaintiffs seek an order pursuant to SCR Pt 20 r 4 that leave be granted to amend the third further amended statement of claim filed on 29 July 2002 to add injurious falsehood as an alternative cause of action.
2 In reality the plaintiffs are seeking to replead a cause of action in injurious falsehood. The defendant opposes the application on the basis that that cause of action, as originally pleaded, has been expressly abandoned.
3 This action bears an unfortunate connection with matter number 19213 of 1993.
4 In the statement of claim initiating the 1993 proceedings, paragraph 15 is on the following terms:
- 15 On or about 21 September 1991 the defendant published in trade or commerce and concerning the plaintiff’s land the following words (“the third matter complained of”):
- We might be rescinding the approval… we might if we can prove that it was approved without the proper procedures…The Development Consent is going to be rescinded…
And, under the heading “injurious falsehood” paragraphs 35 – 39 are as follows:
- 35 The third matter complained of conveyed the imputation that the Development Consent in respect of the plaintiff’s land was liable to be rescinded.
- 36 The imputation pleaded in paragraph 37 [sic] was untrue.
- 37 The defendant published the third matter complained of:
- (a) knowing it to be untrue;
- (b) knowing there to be no reasonable basis for making it;
- (c) intending to injure the plaintiffs.
- 38 By reason of the third matter complained of, purchasers did not proceed with the purchase of the plaintiff’s property.
- 39 As a result, the plaintiff has suffered loss and damage.
5 The plaintiffs seek to plead again this cause of action (otherwise clearly statute barred) in a statement of claim in these proceedings to add it to the causes of action hitherto pleaded consequent upon the judgment of Simpson J of 12 July 2002 (Shaloub & Anor v Buchanan [2002] NSWSC 622).
6 The bifurcation of the proceedings into a still maintained defamation proceedings (the 1993 action) and the 2002 proceedings in respect of other (non-jury) causes of action pleaded, occurred consequent upon an order made by Simpson J on 2 November 2001.
7 As at 29 July 2002 a third further amended statement of claim in the action had been filed pursuant to leave granted by Simpson J on 12 July of that year to which a defence was filed on 9 October 2002. It goes without saying that the last mentioned plaintiffs’ pleading contains no cause of action in injurious falsehood.
8 It is clear that the cause of action in injurious falsehood “disappeared” between 10 June 1998 when an amended statement of claim in the 1993 action included it and 5 November 1998 when a further amended statement of claim in that action did not.
9 Each party has provided outlines of submissions in support of its stand vis-à-vis this notice of motion in this action.
10 The most useful document was the chronology of events to 7 November 2002 (commencing in January 1990) provided by the defendant. It can safely be said that not only have the plaintiffs had the misfortune of being obliged, for whatever reason, frequently to change their legal representatives, the actions (being both the 1993 action and the 2002 action) have been characterised by the most extraordinary interlocutory history. One thing however is clear, that absent any reasonable explanation, it is patent that the cause of action now sought to be repleaded was expressly abandoned in the time frame to which I have referred.
11 It is a cause of action that relates to apparently the making of two statements at an auction in 1991. It is a cause of action that at the end of 2002, two years after its apparent abandonment, the plaintiffs now seek to revive. It is a cause of action in my view on the information available, of little merit and it is insufficient for the Court to be informed that whilst it is the case that the cause of action “disappeared” everything is in order and the plaintiffs now wish to replead it. Whether that decision taken towards the end of 2002 was influenced by either the decision of the High Court in Roberts v Bass (2002) 194 ALR 161 and the important observations on “malice” in the joint judgment, or the earlier decision of that Court in Palmer Bruyn & Parker Pty Ltd v Parsons (2001) 208 CLR 388, is unknown.
12 I add that there is some further amplification of the factual background referred to in the judgment of Simpson J of 12 July 2002 in the pleading with which her Honour was concerned.
13 Further, in the 1993 action I delivered a judgment on 19 October 1998 on an adjournment application. In that judgment I reviewed the chronology as I saw it as at that time and at page 8 I said, “to use an expression that arose in the course of submissions I do propose to give the plaintiffs one last chance to plead their case”. Whether that chance can be said to have been availed of in the 2002 action or the 1993 action, it is quite clear that any such chance was exploited but to the exclusion of the pleading of a cause of action in injurious falsehood.
14 Since late 1998 the defendant has been faced with two sets of litigation neither of which included the cause of action now sought to be “reinstated”.
15 Whilst, as the plaintiffs submit, there is an arguable coincidence in terms of common factual background, and whilst the plaintiffs would be prepared to have me make an order allowing the repleading but not to the prejudice of any defence the defendant may raise on the issue of the expiry of the limitation period, in the end being persuaded that there was no other explanation for the abandonment of the cause of action other than an express decision, to take even the plaintiffs’ suggested step would be futile.
16 These plaintiffs have had alleged causes of action since 1990 and 1991. Those causes of action became crystallised in 1998 and 2002. It is those causes of action that the defendant has been striving to defend for four years (if not longer) and the time has come for the plaintiffs to run their cases. The repleading of a cause of action in injurious falsehood would expand the issues, further delay the fixing of any case the plaintiffs wish to have heard, further prejudice the defendant after such an extraordinary length of time since the events complained of and, though not determinative of the exercise of my discretion, will at the least play havoc with the lists of cases in this division which concern other more dedicated litigants.
17 I dismiss the plaintiffs’ notice of motion. The plaintiffs are to pay the defendant’s costs.
18 This action is to be placed for general management in the Common Law Division.
Last Modified: 08/28/2003
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