Novakovich v Waterhouse [2007] NSWDC 231

New South Wales District Court

CITATION: Novakovich v Waterhouse [2007] NSWDC 231

EX TEMPORE JUDGMENT DATE : 19 October 2007

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

DECISION: (1) Grant leave to the plaintiff to file a Notice of Discontinuance in court; (2) The plaintiff pay the defendant's costs on a party/party basis, including the defendant's costs of today and in relation to this argument.

CATCHWORDS: Tort - defamation - discontinuance - costs - application for indemnity costs

LEGISLATION CITED: Defamation Act 2005 (NSW)

Australian Securities Commission v Aust-Home Investments Ltd (1993) 44 FCR 194 Fordyce v Fordham (2006) 67 NSWLR 497 CASES CITED: Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 ONE.TEL Ltd v Deputy Commissioner of Taxation (2000) 101 FCR 548 Packer v Meagher [1984] 3 NSWLR 486

PARTIES: Plaintiff: Peter Novakovich Defendant: John Waterhouse

FILE NUMBER(S): 1259 of 2007

COUNSEL: Plaintiff: M Rollinson Defendant: C A Evatt / R Rasmussen

SOLICITORS: Plaintiff: Peter Novakovich Solicitors Defendant: Levitt Robinson Solicitors

JUDGMENT

1. The plaintiff in these proceedings was granted leave to discontinue on 5 October 2007. The plaintiff had commenced these proceedings by way of statement of claim filed on 28 March 2007 asserting that on or about 10 October 2001 the defendant published to a Reverend Craig Fulton some words, which I will not set out in this judgment because of the damaging nature of their contents.

2. The matter came before me for directions on 27 April, 1 June and 27 June 2007. It was agreed that there would be trial before a judge alone (sitting without a jury), but it appears that the parties were operating under the misapprehension that the matter would be conducted under the Defamation Act 2005 (NSW) and were not aware of the Court of Appeal decision in Habib v Nationwide News Pty Ltd (2006) 65 NSWLR 264 which required a s 7A jury trial to be empanelled. This was drawn to their attention apparently by Mr Evatt. Mr Evatt appeared before me ex parte on 27 June and obtained a provisional date for a s 7A jury trial. There was objection by the plaintiff and when the attention of counsel for the plaintiff was drawn to Habib v Nationwide News Pty Ltd the matter was stood over to 17 August and then to 24 August for allocation of s 7A jury trial, with an estimate of two days plus.