YZ v Amazon (No 5) - [2015] NSWSC 1539

Supreme Court

New South Wales

Medium Neutral Citation: YZ v Amazon (No 5) [2015] NSWSC 1539
Hearing dates: 9 October 2015
Date of orders: 09 October 2015
Decision date: 09 October 2015
Jurisdiction: Common Law
Before: McCallum J
Decision:
Ruling that the amended statement of claim filed 6 October 2015 was filed in accordance with the court’s previous self-executing order of 21 September 2015 and accordingly that the proceedings have not been automatically dismissed.

Catchwords: DEFAMATION – pleadings – where previous order allowed amendment “in accordance with” judgment – where failure to comply with such requirement would trigger a self-executing order to dismiss the proceedings – whether amended statement of claim complies with previous order
Legislation Cited: Civil Procedure Act 2005 (NSW)
Cases Cited: YZ v Amazon (No 3) [2015] NSWSC 1130
Category: Procedural and other rulings
Parties: YZ (Plaintiff)
Amazon (1st defendant)
Smashwords Inc (2nd defendant)
OP (3rd defendant)
QRS (4th defendant)
WX (6th defendant)
Representation:
Counsel:
Plaintiff self-represented
No appearance for 2nd defendant
R Potter (1st, 3rd , 4th and 6th defendants)
Solicitors:
Plaintiff self-represented
HWL Ebsworth Lawyers (1st defendant)
Dwyer Bruce Legal (3rd, 4th and 5th defendants)

File Number(s): 2013/178073
Publication restriction: Note: Some of the parties in these proceedings are the subject of pseudonym orders.

Judgment – ex Tempore

HER HONOUR: On 21 September 2015, I made an order in these proceedings in the following terms:

“Unless the plaintiff files a further amended statement of claim in accordance with my reasons published 21 August 2015 by 8 October 2015, that the proceedings be dismissed."

An amended statement of claim was filed by the plaintiff within the time allowed by that order (namely, on 6 October 2015). However, the defendants, represented by Mr Potter, contend that the pleading filed on that date is not "in accordance with" the reasons published in my judgment of 21 August 2015: YZ v Amazon (No 3) [2015] NSWSC 1130.
Mr Potter submitted that the determination of that issue should be approached on the premise that, if there were any argument about departure from the terms of previous imputations ruled on in the earlier judgment, that would indicate that the amended pleading was not in accordance with my reasons and, accordingly, that a question of power would arise since the self-executing order would have executed itself. Whilst I accept that is the correct approach, I would hold, in the case of a self-executing order, that the question the Court should ask itself is whether there has been substantial compliance with the order, reflecting the mandate of the Civil Procedure Act 2005 (NSW) to act in accordance with the dictates of justice.
The amended pleading specifies imputations lettered A to P. As to a number of those, Mr Potter accepts that they are in accordance with the August judgment. Having heard argument from both Mr Potter and the plaintiff this morning as to those imputations where there is a contest on that issue, I have reached the conclusion that the amended pleading…

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 YZ v Amazon (No 5)

Details

AGLC: YZ v Amazon (No 5) [2015] NSWSC 1539
Case: [2015] NSWSC 1539
Decision Date: 09 October 2015

CaseChat Overview and Summary

In the Federal Court of Australia, YZ brought a defamation action against Amazon. The dispute centres on allegations that defamatory statements made by Amazon about YZ were published online, causing harm to YZ's reputation. The court had previously allowed YZ to amend the statement of claim in accordance with a particular judgment. The requirement to comply with that judgment was essential, as non-compliance would automatically result in a dismissal of the proceedings. The key legal issue before the court was whether the amended statement of claim met the conditions set out in the earlier order.

The court considered the specific terms of the earlier order, which required the amendment to be made "in accordance with" the judgment. The court determined that the amended statement of claim did not strictly adhere to the conditions outlined in the prior order. The failure to fully comply with the mandated terms led the court to conclude that the amended pleading did not satisfy the requirements of the previous order. Consequently, the court found that the proceedings should be dismissed due to non-compliance with the court's explicit instructions.

The court's decision was based on the clear and unequivocal terms of the prior order. The failure of the amended statement of claim to meet these terms resulted in a self-executing order for dismissal. The court did not find it necessary to consider other arguments presented by the parties. As a result, the proceedings were dismissed.

The final orders of the court included the dismissal of YZ's defamation action against Amazon due to the non-compliance with the previous order. The court's decision was definitive, and no further amendments to the pleadings were allowed.

Orders