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Sleeman v Tuloch Pty Ltd

Sleeman v Tuloch Pty Ltd

Case [2013] NSWDC 43 12 April 2013

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Contempt of Court

Abuse of Process

Civil Litigation & Procedure

Tort Law

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District Court

New South Wales

Medium Neutral Citation: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43
Hearing dates: 12 April 2013
Decision date: 12 April 2013
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) The proceedings as against the fourth and fifth defendants are, by consent, dismissed.
(2) The first to fifth defendants' application for summary judgment is dismissed.
(3) The plaintiff is to file and serve a further amended statement of claim deleting all references to the fourth and fifth defendants by 4:00pm Monday 15 April 2013.
(4) The plaintiff is to pay the defendants' cost occasioned by this further amendment to the statement of claim.
(5) The plaintiff to serve a verified List of Documents on or before 4:00pm 16 April 2013.
(6) Time for the plaintiff to administer interrogatories is extended to today.
(7) The plaintiff is to serve verified answers to interrogatories on or before 4:00pm 16 April 2013.
(8) Orders (3), (5) and (7) are self-executing in nature and the proceedings may be dismissed for failure to comply.
(9) The plaintiff pay the defendants' costs of today including the costs of the applications listed for hearing today, and including the application for summary disposal of the proceedings.
(10) The plaintiff pay the costs of the fourth and fifth defendant's costs of the proceedings against them.
(11) Direct the parties to take steps immediately to attend mediation with a private mediator, as no court mediation dates are available prior to the hearing.

Catchwords: TORT - defamation - defamation claim set down for hearing - repeated failure by plaintiff to comply with case management orders prior to trial - application to strike out proceedings for want of prosecution
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 60 and 61
Uniform Civil Procedure Rules 2005 (NSW), rr 42.19 and 42.20
Cases Cited: Fairey v Fairey (No 2) [2000] NSWCA 173
Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238
Fleet v State of New South Wales [2009] NSWSC 75
Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727
Hoser v Hartcher [1999] NSWSC 527
Kim v Lee [2012] NZCA 19
Kim v Lee [2012] NZCA 248
Kim v Lee [2012] NZCA 256
Kim v Lee [2012] NZCA 600
Kim v New Korea Herald HC [2011] NZHC 1491
McNamara v Bao San [2010] NSWSC 809
Obeid v Australian Broadcasting Corporation & Ors (Supreme Court of NSW, Levine J, 10 July 1998)
Pacanowski v Wakerman [2009] NSWCA 402
Packer v Meagher [1984] 3 NSWLR 486
Rivera v State of New South Wales & Anor [2012] NSWSC 1360
Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337
Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433
Texts Cited: -
Category: Interlocutory applications
Parties: Plaintiff: Richard Sleeman
First Defendant: Tuloch Pty Ltd (ACN 086 654 140) t/as Palms on Oxford
Second Defendant: Peter Inwood
Third Defendant: Rodney Innes
Fourth Defendant: Clint James Unwin
Fifth Defendant: ADCAS Pty Ltd (ACN…

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 Sleeman v Tuloch Pty Ltd

Details

AGLC: Sleeman v Tuloch Pty Ltd [2013] NSWDC 43
Case: [2013] NSWDC 43
Decision Date: 12 April 2013

CaseChat Overview and Summary

The plaintiff, Sleeman, brought a defamation claim against Tuloch Pty Ltd and other defendants. The matter was set down for hearing, but the plaintiff had repeatedly failed to comply with case management orders prior to the trial. The defendants applied to strike out the proceedings for want of prosecution. The court was required to decide whether the plaintiff's repeated failure to comply with case management orders justified striking out the proceedings and, if so, whether it was appropriate to grant summary judgment to the defendants.

The court found that the plaintiff had made little to no progress in complying with the directions of the court or in preparing for the hearing. The court noted that the plaintiff had been warned about the consequences of non-compliance, yet had failed to take any steps to remedy the situation. The court held that the plaintiff's conduct amounted to an abuse of the court's process and that striking out the proceedings was an appropriate remedy. The court also dismissed the defendants' application for summary judgment, finding that there were genuine issues for trial. The court ordered the plaintiff to file and serve a further amended statement of claim, serve a verified List of Documents, and serve verified answers to interrogatories. The court also ordered the parties to attend mediation with a private mediator. The plaintiff was ordered to pay the defendants' costs of the applications and of the proceedings against them.

The court ordered the plaintiff to file and serve a further amended statement of claim, serve a verified List of Documents, and serve verified answers to interrogatories. The court also ordered the parties to attend mediation with a private mediator. The plaintiff was ordered to pay the defendants' costs of the applications and of the proceedings against them. The proceedings as against the fourth and fifth defendants were dismissed by consent.

Orders

Orders of the court

(1) The proceedings as against the fourth and fifth defendants are, by consent, dismissed.

(2) The first to fifth defendants' application for summary judgment is dismissed.

(3) The plaintiff is to file and serve a further amended statement of claim deleting all references to the fourth and fifth defendants by 4:00pm Monday 15 April 2013.

(4) The plaintiff is to pay the defendants' cost occasioned by this further amendment to the statement of claim.

(5) The plaintiff to serve a verified List of Documents on or before 4:00pm 16 April 2013.

(6) Time for the plaintiff to administer interrogatories is extended to today.

(7) The plaintiff is to serve verified answers to interrogatories on or before 4:00pm 16 April 2013.

(8) Orders (3), (5) and (7) are self-executing in nature and the proceedings may be dismissed for failure to comply.

(9) The plaintiff pay the defendants' costs of today including the costs of the applications listed for hearing today, and including the application for summary disposal of the proceedings.

(10) The plaintiff pay the costs of the fourth and fifth defendant's costs of the proceedings against them.

(11) Direct the parties to take steps immediately to attend mediation with a private mediator, as no court mediation dates are available prior to the hearing.

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

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Citations

AGLC Citation

Sleeman v Tuloch Pty Ltd [2013] NSWDC 43

Most Recent Citation

Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3) [2013] NSWDC 92

Cases citing this decision · 5 of 5 shown

Alex v Australian Broadcasting Corporation
[2015] NSWDC 78 Para 56

…arks [2015] NSWDC 53. Sometimes the failure to serve a party is not picked up until the matter is set down for hearing; in Sleeman v Tuloch Pty Ltd [2013] NSWDC 43 two of the five defendants were unaware of the proceedings having even been commenced, let alone that the hearing date was imminent, and in Flanagan v…
Foley v Rosier
[2014] NSWDC 92 Para 1

…mplex causes of action such as defamation and injurious falsehood (see Flanagan v Urban Publishing Pty Ltd [2012] NSWDC 238; Sleeman v Tuloch Pty Ltd [2013] NSWDC 43; Crux - Southern Cross University Post Graduate Association Inc v Watts & Ors [2013] NSWDC 254; Munn v Tunks [2013] NSWSC 1263) should not be encoura…
Crux - Southern Cross University Post Graduate Association Inc v Watts
[2013] NSWDC 254

…Ltd [2012] NSWDC 238 Flo Rida v Mothership Music Pty Ltd [2013] NSWCA 268 Ghosh v Google Australia Pty Ltd [2013] NSWDC 146 Sleeman v Tuloch Pty Ltd [2013] NSWDC 43 Urbanchich v Drummoyne Municipal Council (1988) A Def R 50-035 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 Weston (in Capacity…
Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 4)
[2013] NSWDC 111 Para 1

…Dezarnaulds. This was expressed to follow from their complaints of his incompetent conduct of these proceedings (some details of which are set out at [2013] NSWDC 43), the hopelessness of the case, and an asserted admission from Mr Dezarnaulds that the plaintiff was impecunious. This costs application was given a…
Sleeman v Tuloch Pty Ltd t/as Palms on Oxford (No 3)
[2013] NSWDC 92 Para 1

…against them were then discontinued as part of a series of case management rulings prior to the trial: Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43. The second problem was that the claim against the defendants continued to be pleaded on vicarious liability principles applicable to other tortious…

View all 5 citing cases →

Cases cited in this decision · 15 of 15 shown

Kim v Lee
[2012] NZCA 600

…Gourmet AG [2002] NSWSC 727 Hoser v Hartcher [1999] NSWSC 527 Kim v Lee [2012] NZCA 19 Kim v Lee [2012] NZCA 248 Kim v Lee [2012] NZCA 256 Kim v Lee [2012] NZCA 600 Kim v New Korea Herald HC [2011] NZHC 1491 McNamara v Bao San [2010] NSWSC 809 Obeid v Australian Broadcasting Corporation & Ors (Supreme Court of NS…
Rivera v State of New South Wales
[2012] NSWSC 1360 Para 1

…these provisions with the entitlement of the parties to a fair trial process which Johnson J has set out in Rivera v State of New South Wales & Anor [2012] NSWSC 1360 at [82]-[86].…
Flanagan v Urban Publishing Pty Ltd
[2012] NSWDC 238 Para 1

…fendant was unrepresented was not discovered until after a trial where damages of $250,000 were awarded. In Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238 the fact that the sole defendant had not been served was not discovered until after the proceedings had been listed for trial. In the present case, t…
Berachan Investments Ltd v Body Corporate 164205
[2012] NZCA 256

…ia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727 Hoser v Hartcher [1999] NSWSC 527 Kim v Lee [2012] NZCA 19 Kim v Lee [2012] NZCA 248 Kim v Lee [2012] NZCA 256 Kim v Lee [2012] NZCA 600 Kim v New Korea Herald HC [2011] NZHC 1491 McNamara v Bao San [2010] NSWSC 809 Obeid v Australian Broadcasting Corporation…
Kim v Lee
[2012] NZCA 248

…SC 75 Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727 Hoser v Hartcher [1999] NSWSC 527 Kim v Lee [2012] NZCA 19 Kim v Lee [2012] NZCA 248 Kim v Lee [2012] NZCA 256 Kim v Lee [2012] NZCA 600 Kim v New Korea Herald HC [2011] NZHC 1491 McNamara v Bao San [2010] NSWSC 809 Obeid v Australian…
Kim v Lee
[2012] NZCA 19 Para 1

…ent examples of the problems this kind of conduct causes for both the parties and the court. In Kim v New Korea Herald HC [2011] NZHC 1491; Kim v Lee [2012] NZCA 19, 248, 256 and 600 the fact that one defendant was unrepresented was not discovered until after a trial where damages of $250,000 were awarded. In Fla…
Lee v New Korea Herald Ltd HC Auckland CIV 2008-404-5072
[2011] NZHC 1491 Para 1

…There have been several recent examples of the problems this kind of conduct causes for both the parties and the court. In Kim v New Korea Herald HC [2011] NZHC 1491; Kim v Lee [2012] NZCA 19, 248, 256 and 600 the fact that one defendant was unrepresented was not discovered until after a trial where damages of $25…
Weston v Publishing and Broadcasting Ltd
[2011] NSWSC 433 Para 1

…for the plaintiff to obtain an extension: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433 at [183]. However, the defendants, conscious of their obligations to conduct the matter efficiently ( Hoser v Hartcher [1999] NSWSC 527), indicated t…
McNamara v San
[2010] NSWSC 809 Para 1

…As Hallen AsJ explains in McNamara v Bao San [2010] NSWSC 809 at [12], UCPR r 42.20 does not give rise to a presumption that costs will be ordered against a plaintiff where proceedings are dismissed, but creates a starting point by requiring this outcome to be displaced by a discretionary decision. The plaintiff sh…
Pacanowski & Anor v Wakerman & Ors
[2009] NSWCA 402 Para 1

…the discretion to dismiss proceedings for want of prosecution as being wider under this legislation than under the common law ( Pacanowski v Wakerman [2009] NSWCA 402 at [26]-[28]), the principles enunciated by Simpson J in Hoser v Hartcher [1999] NSWSC 527, which predate the Civil Procedure Act , continue to be ci…
Fleet v State of New South Wales
[2009] NSWSC 75 Para 1

…will not stand by and permit endless opportunities to a litigant to flout court orders, as Johnson J pointed out in Fleet v State of New South Wales [2009] NSWSC 75 at [12]-[15].…
Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG
[2002] NSWSC 727 Para 1

…he present case, the defendants were not avoiding service, or watching from the sidelines ( Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727).…
Fairey v Fairey (No 2)
[2000] NSWCA 173 Para 1

…In Fairey v Fairey (No 2) [2000] NSWCA 173 at [51]-[58] the Court warned that dismissal of proceedings was an exceptional order, and a power not lightly to be exercised. Decisions of this kind must now be made against the framework of the Civil Procedure Act , and courts will not stand by and permit endless opportu…
Hoser v Hartcher
[1999] NSWSC 527 Para 1

…adcasting Ltd [2011] NSWSC 433 at [183]. However, the defendants, conscious of their obligations to conduct the matter efficiently ( Hoser v Hartcher [1999] NSWSC 527), indicated that they would not take this point if some kind of explanation for delay was available.…
Van Leer Australia Pty Ltd v Palace Shipping KK
[1981] HCA 11 Para 1

…It would not have been easy for the plaintiff to obtain an extension: Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337; Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433 at [183]. However, the defendants, conscious of their obligations to conduct the matter efficiently ( Hoser v Hartcher [1999…

Legislation cited in this decision · 3

Civil Procedure Act 2005 (NSW)
60, 61 3 mentions (from Para 1)
Uniform Civil Procedure Rules 2005 (NSW)
42.19, 42.20 3 mentions (from Para 1)
Children and Young Persons (Care and Protection) Act 1998 (NSW)
1 mention

Medium Neutral Citation:	Sleeman v Tuloch Pty Ltd t/as Palms on Oxford [2013] NSWDC 43
Hearing dates:	12 April 2013
Decision date:	12 April 2013
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) The proceedings as against the fourth and fifth defendants are, by consent, dismissed. (2) The first to fifth defendants' application for summary judgment is dismissed. (3) The plaintiff is to file and serve a further amended statement of claim deleting all references to the fourth and fifth defendants by 4:00pm Monday 15 April 2013. (4) The plaintiff is to pay the defendants' cost occasioned by this further amendment to the statement of claim. (5) The plaintiff to serve a verified List of Documents on or before 4:00pm 16 April 2013. (6) Time for the plaintiff to administer interrogatories is extended to today. (7) The plaintiff is to serve verified answers to interrogatories on or before 4:00pm 16 April 2013. (8) Orders (3), (5) and (7) are self-executing in nature and the proceedings may be dismissed for failure to comply. (9) The plaintiff pay the defendants' costs of today including the costs of the applications listed for hearing today, and including the application for summary disposal of the proceedings. (10) The plaintiff pay the costs of the fourth and fifth defendant's costs of the proceedings against them. (11) Direct the parties to take steps immediately to attend mediation with a private mediator, as no court mediation dates are available prior to the hearing.
Catchwords:	TORT - defamation - defamation claim set down for hearing - repeated failure by plaintiff to comply with case management orders prior to trial - application to strike out proceedings for want of prosecution
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 60 and 61 Uniform Civil Procedure Rules 2005 (NSW), rr 42.19 and 42.20
Cases Cited:	Fairey v Fairey (No 2) [2000] NSWCA 173 Flanagan v Urban Publishing Group Pty Ltd [2012] NSWDC 238 Fleet v State of New South Wales [2009] NSWSC 75 Gate Gourmet Australia Pty Ltd (in liq) v Gate Gourmet AG [2002] NSWSC 727 Hoser v Hartcher [1999] NSWSC 527 Kim v Lee [2012] NZCA 19 Kim v Lee [2012] NZCA 248 Kim v Lee [2012] NZCA 256 Kim v Lee [2012] NZCA 600 Kim v New Korea Herald HC [2011] NZHC 1491 McNamara v Bao San [2010] NSWSC 809 Obeid v Australian Broadcasting Corporation & Ors (Supreme Court of NSW, Levine J, 10 July 1998) Pacanowski v Wakerman [2009] NSWCA 402 Packer v Meagher [1984] 3 NSWLR 486 Rivera v State of New South Wales & Anor [2012] NSWSC 1360 Van Leer Australia Pty Ltd v Palace Shipping KK (1981) 180 CLR 337 Weston v Publishing & Broadcasting Ltd [2011] NSWSC 433
Texts Cited:	-
Category:	Interlocutory applications
Parties:	Plaintiff: Richard Sleeman First Defendant: Tuloch Pty Ltd (ACN 086 654 140) t/as Palms on Oxford Second Defendant: Peter Inwood Third Defendant: Rodney Innes Fourth Defendant: Clint James Unwin Fifth Defendant: ADCAS Pty Ltd (ACN…