Templar v Britton - [2014] NSWSC 187

Supreme Court

New South Wales

Medium Neutral Citation: Templar v Britton [2014] NSWSC 187
Hearing dates: 5 March 2014
Decision date: 05 March 2014
Jurisdiction: Common Law
Before: Beech-Jones J
Decision:
(1) Paragraphs 14 to 20 and the claim for the particulars of exemplary damages in paragraph 21 of the second further amended statement of claim be struck out.
(2) Order the plaintiffs to file and serve a third further amended statement of claim consistent with order 1 and verified by them within 21 days.
(3) Extend the time for compliance by the plaintiff with order 2 made by McCallum J on 4 December 2013 a further 21 days.
(4) Order the plaintiffs to provide any further particulars including particulars of the calculation of damages specified under the heading "General Actual and Special Damages" in paragraph 21 of the Second Further Amended Statement of Claim, within 21 days hereof.
(5) The plaintiffs pay the defendants' costs of the application determined today.
(6) The plaintiffs file and serve within 14 days any affidavit material they wish to rely on in response to the application that those costs be payable forthwith.
(7) The parties exchange outlines of submissions on the question of when those costs should be paid within 21 days, such submissions to be longer than two pages.
(8) The parties have liberty to apply to fix a time for brief oral submissions on the question as to when those costs are payable.

Catchwords: DEFAMATION - application to dismiss proceedings by reason of failure to comply with Court orders - no question of principle.
Legislation Cited: - Civil Procedure Act 2005 (NSW), s 56, s 61(3)
- Competition and Consumer Act 2010 (Cth)
- Uniform Civil Procedure Rules 2005 (NSW), Part 12 r 7
Cases Cited: - Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; 239 CLR 175
- Templar v Britton (Supreme Court (NSW) McCallum J, 5 August 2013, unnrep)
- Templar v Britton [2013] NSWSC 1827
Category: Interlocutory applications
Parties: Stephen Templar (First Plaintiff)
Audametrics Pty Ltd (Second Plaintiff)
Paul Britton (First Defendant)
Bradley Laughlin (Second Defendant)
State of New South Wales (Third Defendant)
Representation: Counsel:
R.K.M. Rasmussen (Plaintiffs)
D.R. Sibtain (Defendants)
Solicitors:
City Attorneys (Plaintiffs)
Hicksons Lawyers (Defendants)

File Number(s): 2012/393936

ex tempore Judgment

The defendants have applied, pursuant to Part 12 r 7 of the Uniform Civil Procedure Rules 2005 ("UCPR") or, in the alternative, pursuant to s 61(3) of the Civil Procedure Act 2005 (NSW) for the dismissal of the entirety of the proceedings essentially by reason of the failure of the plaintiffs to comply with orders made by McCallum J on 4 December 2013.

The background to the proceedings is set out in her Honour's judgment: Templar v Britton [2013] NSWSC 1827 ("Templar"). It is, however, necessary to describe the procedural background in further detail.

The events the subject of the proceedings are alleged to have occurred in May 2012. In late 2012 the plaintiffs commenced…

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 Templar v Britton

Details

AGLC: Templar v Britton [2014] NSWSC 187
Case: [2014] NSWSC 187
Decision Date: 05 March 2014

CaseChat Overview and Summary

In the matter of Templar v Britton, the defendant sought to have the defamation proceedings dismissed due to the plaintiff's failure to comply with certain court orders. The court was required to determine whether the non-compliance was sufficient to warrant the dismissal of the case.

The primary legal issue before the court was whether the plaintiff's failure to comply with the court's orders warranted the dismissal of the defamation proceedings. The court considered the principles of procedural fairness and the importance of adhering to court orders in legal proceedings.

The court held that there was no question of principle involved in the matter, and the application to dismiss the proceedings was dismissed. The court found that the plaintiff's non-compliance with the court's orders did not warrant the dismissal of the defamation proceedings, as the primary focus should be on the merits of the case.

No further orders were made by the court. The defamation proceedings will continue, and the parties are expected to comply with any future court orders.

Orders