Wayne v The Owners Corporation SP64622 - [2014] NSWDC 217

District Court

New South Wales

Medium Neutral Citation: Wayne v The Owners Corporation SP64622 [2014] NSWDC 217
Hearing dates: 30 October 2014
Decision date: 30 October 2014
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
(1) Note the plaintiff consents to the striking out of paragraph 8.
(2) Note imputations (a), (b) and (c) are withdrawn.
(3) Imputation (e) is struck out.
(4) Imputation (f) is struck out.
(5) Imputations (d), (g) and (h) will remain.
(6) Particulars of aggravated damages in paragraphs 14(ii), 14(iii) and 14(iv) are struck out.
(7) Note the plaintiff has withdrawn his special damages plea.
(8) Proceedings against the first and second defendants are dismissed.
(9) The plaintiff is to pay the costs of the proceedings against the first and second defendants on an indemnity basis.
(10) The plaintiff is to pay the costs of the third to sixth defendants of this application, including the costs of 2 May 2014, 20 June 2014, 29 August 2014, 10 October 2014 and today (30 October 2014), assessable forthwith and on an indemnity basis.
(11) The plaintiff is to file and serve a Further Amended Statement of Claim in 14 days.
(12) Matter stood over to the Defamation List on Friday 21 November 2014.

Catchwords: TORT - defamation - litigant in person brings proceedings against six defendants for an unspecified number of publications over a six-month period for which one set of imputations is pleaded - four successive statements of claim provided during application to strike out pleadings - whether proceedings should be summarily dismissed on the basis that publication had not been established - whether failure to plead the contents of the matters complained of (and which defendant) resulted in the proceedings, although commenced within time, failed to identify publication within the time frame of s 14B Limitation Act 1969 (NSW) in relation to one or more of the defendants - no claim of publication pleaded within the limitation period in relation to first and second defendants - claim against first and second defendants dismissed - claim against remaining defendants limited to one publication - challenge to form and capacity of imputations arising from that publication - particulars of aggravated damages struck out as deficient - claim for special damage withdrawn - costs - application listed on four occasions between May and October for hearing due to plaintiff's inadequate pleadings - correspondence to plaintiff warning of costs consequences - whether costs should be paid on an indemnity basis - whether third to sixth defendants' costs should be payable forthwith.
Legislation Cited: Civil Procedure Act 2005 (NSW), ss 65(2)(c) and 98
Limitation Act 1969 (NSW), s 14B
Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 21.2(1)(a), 42.2 and 42.5
Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11
Bevillesta Pty Ltd v D Tannous (No 2) Pty Ltd [2010] NSWCA 277
Bhagat v Global Custodians Ltd [2002] FCAFC 51
Bleyer v Google Inc (2014) 311 ALR 529
Bodenstein v Hope Street Urban Compassion (Supreme Court of New…

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.

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Details

Case: [2014] NSWDC 217
Decision Date: 30 October 2014

CaseChat Overview and Summary

Wayne brought defamation proceedings against six defendants. He contended that he was defamed by multiple publications over a six-month period. The defendants sought to strike out the pleadings. They argued that the proceedings should be summarily dismissed because the plaintiff had not established publication and had failed to identify the contents of the alleged defamatory matter within the limitation period. The plaintiff, acting as a litigant in person, had provided four successive statements of claim. The court had to determine whether the plaintiff's failure to properly plead publication and contents resulted in the proceedings failing to identify publication within the time frame of the Limitation Act. The court also needed to decide whether the plaintiff's inadequate pleadings justified costs being paid on an indemnity basis.

The court found that the plaintiff had failed to establish publication within the limitation period in relation to the first and second defendants. It also found that the plaintiff had not sufficiently pleaded the contents of the matters complained of. The court held that the claim against the first and second defendants should be dismissed. It limited the claim against the remaining defendants to one publication. The court struck out particulars of aggravated damages as deficient and the plaintiff withdrew his claim for special damages. The court was satisfied that the plaintiff's inadequate pleadings warranted costs being paid on an indemnity basis. It ordered the plaintiff to pay the defendants' costs of the application forthwith and on an indemnity basis. The court also ordered that the plaintiff file and serve a Further Amended Statement of Claim within 14 days and stood the matter over to the Defamation List.

Orders

Orders of the court

(1) Note the plaintiff consents to the striking out of paragraph 8.

(2) Note imputations (a), (b) and (c) are withdrawn.

(3) Imputation (e) is struck out.

(4) Imputation (f) is struck out.

(5) Imputations (d), (g) and (h) will remain.

(6) Particulars of aggravated damages in paragraphs 14(ii), 14(iii) and 14(iv) are struck out.

(7) Note the plaintiff has withdrawn his special damages plea.

(8) Proceedings against the first and second defendants are dismissed.

(9) The plaintiff is to pay the costs of the proceedings against the first and second defendants on an indemnity basis.

(10) The plaintiff is to pay the costs of the third to sixth defendants of this application, including the costs of 2 May 2014, 20 June 2014, 29 August 2014, 10 October 2014 and today (30 October 2014), assessable forthwith and on an indemnity basis.

(11) The plaintiff is to file and serve a Further Amended Statement of Claim in 14 days.

(12) Matter stood over to the Defamation List on Friday 21 November 2014.

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:	Wayne v The Owners Corporation SP64622 [2014] NSWDC 217
Hearing dates:	30 October 2014
Decision date:	30 October 2014
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	(1) Note the plaintiff consents to the striking out of paragraph 8. (2) Note imputations (a), (b) and (c) are withdrawn. (3) Imputation (e) is struck out. (4) Imputation (f) is struck out. (5) Imputations (d), (g) and (h) will remain. (6) Particulars of aggravated damages in paragraphs 14(ii), 14(iii) and 14(iv) are struck out. (7) Note the plaintiff has withdrawn his special damages plea. (8) Proceedings against the first and second defendants are dismissed. (9) The plaintiff is to pay the costs of the proceedings against the first and second defendants on an indemnity basis. (10) The plaintiff is to pay the costs of the third to sixth defendants of this application, including the costs of 2 May 2014, 20 June 2014, 29 August 2014, 10 October 2014 and today (30 October 2014), assessable forthwith and on an indemnity basis. (11) The plaintiff is to file and serve a Further Amended Statement of Claim in 14 days. (12) Matter stood over to the Defamation List on Friday 21 November 2014.
Catchwords:	TORT - defamation - litigant in person brings proceedings against six defendants for an unspecified number of publications over a six-month period for which one set of imputations is pleaded - four successive statements of claim provided during application to strike out pleadings - whether proceedings should be summarily dismissed on the basis that publication had not been established - whether failure to plead the contents of the matters complained of (and which defendant) resulted in the proceedings, although commenced within time, failed to identify publication within the time frame of s 14B Limitation Act 1969 (NSW) in relation to one or more of the defendants - no claim of publication pleaded within the limitation period in relation to first and second defendants - claim against first and second defendants dismissed - claim against remaining defendants limited to one publication - challenge to form and capacity of imputations arising from that publication - particulars of aggravated damages struck out as deficient - claim for special damage withdrawn - costs - application listed on four occasions between May and October for hearing due to plaintiff's inadequate pleadings - correspondence to plaintiff warning of costs consequences - whether costs should be paid on an indemnity basis - whether third to sixth defendants' costs should be payable forthwith.
Legislation Cited:	Civil Procedure Act 2005 (NSW), ss 65(2)(c) and 98 Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 21.2(1)(a), 42.2 and 42.5
Cases Cited:	Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11 Bevillesta Pty Ltd v D Tannous (No 2) Pty Ltd [2010] NSWCA 277 Bhagat v Global Custodians Ltd [2002] FCAFC 51 Bleyer v Google Inc (2014) 311 ALR 529 Bodenstein v Hope Street Urban Compassion (Supreme Court of New…