Zaia v Eshow

[2016] NSWSC 921

Supreme Court

New South Wales

Medium Neutral Citation:	Zaia v Eshow [2016] NSWSC 921
Hearing dates:	24 June 2016
Decision date:	24 June 2016
Jurisdiction:	Common Law
Before:	McCallum J
Decision:	Proceedings referred to mediation
Catchwords:	DEFAMATION – procedure – defendant unprepared for first listing in accordance with practice note – parties both individuals – appropriateness of referring to mediation before pleadings closed
Legislation Cited:	Civil Procedure Act 2005 (NSW); ss 26, 27 Defamation Act 2005 (NSW); s 3
Category:	Procedural and other rulings
Parties:	Mar Meelis Zaia (Plaintiff) Sargon Eshow (Defendant)
Representation:	Counsel: C Amato (Plaintiff) L Robison (Defendant)   Solicitors: Fred David, David Legal (Plaintiff)
File Number(s):	2016/96912

Judgment

1. HER HONOUR: These are proceedings for defamation which are before the Court today for the first listing in the accordance with the Defamation List Practice Note SC CL 4. The statement of claim was filed on 30 March 2016. The plaintiff is His Beatitude Mar Meelis Zaia, the Metropolitan of the Holy Apostolic Catholic Church in Australia, New Zealand and Lebanon. The defendant is an individual.

2. The defendant's response to the commencement of the proceedings has been, as I think it was put on behalf of the plaintiff, one of "radio silence". He has today been represented by Mr Robison of counsel but has not taken the steps referred to in the practice note and the matter is not ready for first listing today.

3. Mr Robison has however submitted that the matter is one that is appropriate for referral to mediation now. I have heard submissions directed to that question. Ms Amato puts a compelling argument that it would be preferable for the plaintiff to know, before going into mediation, whether the defendant has any defence to the proceedings.

4. There is some force in that argument but on balance I think, having regard to the identity of the parties, the matter is one in which it would be preferable for the prospect amicable resolution to be explored before either party becomes entrenched in costly litigation. That is the course which, in my view, is best calculated to achieve the objects of the Defamation Act 2005 (NSW) of providing an effective and fair remedy while promoting the speedy and non-litigious resolution of the dispute.

5. For those reasons, pursuant to s 26 of the Civil Procedure Act 2005 (NSW), I refer the proceedings for mediation by a mediator of the Court. I note the obligation of the parties in s 27 of the Act to participate in good faith in the mediation. I direct the parties to use their best endeavours to hold the mediation within two months. I stand the proceedings over to 5 August 2016 on the understanding that, if the mediation has been unsuccessful, the defendant will be expected to have placed himself in a position of readiness for the first listing by that date including having addressed any issue as to the correctness of the translation of the matters complained of annexed to the statement of claim.

6. I direct the parties to exchange position papers in respect of the mediation within 14 days. I order the defendant to pay the plaintiff's costs of today,

Decision last updated: 04 July 2016