Tate v Duncan-Strelec

[2015] NSWSC 1303

Supreme Court

New South Wales

Medium Neutral Citation:	Tate v Duncan-Strelec [2015] NSWSC 1303
Hearing dates:	21 August 2015
Date of orders:	21 August 2015
Decision date:	21 August 2015
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Leave to file notice of discontinuance is granted.
Catchwords:	PROCEDURE – civil – summary disposal – discontinuance – leave to file notice of discontinuance – where defendant has not appeared – where defendant is aware of listing – where terms of discontinuance provide that each party is to pay own costs
Legislation Cited:	Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	Thomas Richard Tate (plaintiff) Amanda Duncan-Strelec (defendant)
Representation:	S Eustace (plaintiff) No appearance by defendant
File Number(s):	2013/242125
Publication restriction:	None

Judgment – Ex Tempore

1. HER HONOUR: Before the Court is a notice of motion filed in Court before the Chief Judge in Equity on 10 March 2015. By that motion, the plaintiff seeks leave to discontinue a defamation action against the defendant on terms that each party bear his or her own costs. That reflects a departure from the default position under the Uniform Civil Procedure Rules 2005 (NSW) which is that a party discontinuing proceedings is ordinarily permitted to do so only on terms that the party pay the defendant's costs.

2. The circumstances of these proceedings are complex. The proceedings were commenced in the Equity Division with a claim for defamation but also an allegation of contempt. It was determined that the contempt proceedings should be dealt with separately and prior to the defamation proceedings. The Court delivered judgment in the contempt proceedings on 20 August 2014. By subsequent order made 24 September 2014, the defendant was prohibited from publishing or causing to be published the website complained of in the defamation action and Mirror Newspapers websites.

3. As at 6 August 2015, the websites cannot be located by a search on the internet, indicating that the plaintiff has, in effect, achieved a successful outcome in the defamation action. The plaintiff sought to have the notice of motion seeking leave to discontinue determined by the Chief Judge in Equity when the motion was filed in Court on 10 March 2015. Her Honour indicated that she was prepared to determine the application that day. However, that course was opposed by the defendant. Her Honour said to the defendant:

“This is simply a motion to discontinue. If you oppose it I will hear your opposition. You may wish to make a submission about costs, it is a matter for you.”

4. The defendant responded:

“I definitely oppose it. I'm going to need some time, firstly to consider appealing because the defamation was based obviously on the outcome of the contempt case. To me, the contempt case has not been finished because I have not had the opportunity to review whether I am going to appeal the sentence. I am going to need time. I possibly will have to seek legal advice, particularly given the contempt case was criminal, and at the time I have obviously, and even you have said that I have not had good advice.”

5. The defendant sought an adjournment for 6 months to allow her a period of time to ascertain her options and to seek "sound legal advice from considered heads and decide what should be done". The matter was referred by the Chief Judge in Equity to me as Defamation List judge and listed today.

6. There is evidence to indicate that the defendant was on notice of the listing today. She has been called outside court and has not appeared. In the circumstances, it is my view that the plaintiff should have the leave sought.

7. I grant leave to the plaintiff to file in Court the three affidavits of Scott David Eustace sworn 6, 20 and 21 August 2015. I make the orders sought in prayers 3 and 4 of the notice of motion. I grant leave to the plaintiff to file the notice of discontinuance in Court.

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Decision last updated: 07 September 2015