Calabro v Zappia [2010] NSWDC 127

New South Wales District Court

CITATION: Calabro v Zappia [2010] NSWDC 127

HEARING DATE(S): 12 March, 16 and 29 April and 3 June 2010

JUDGMENT DATE: 11 June 2010

JURISDICTION: Civil

JUDGMENT OF: Gibson DCJ

(1) Plaintiffs' application for an extension of time to commence proceedings out of time is dismissed. DECISION: (2) Plaintiffs' statement of claim struck out and dismissed. (3) Plaintiffs pay defendant's costs of these proceedings save for 29 April 2010, for which no order for costs is made by reason of the failure of counsel for the defendant to attend court.

CATCHWORDS: TORT - action by six family members for defamation - one plaintiff surreptitiously obtains statutory declaration sent by defendant to persons involved in litigation with another of the plaintiffs - application to commence defamation proceedings out of time - whether not reasonable to have commenced proceedings within time - abuse of process - whether action for defamation based on document surreptitiously taken from a file left in the court foyer is an abuse of process - application to extend time refused and action found to be an abuse of process

Civil Procedure Act 2005 (NSW), ss 56 - 62 Crimes Act 1900 (NSW), Part 4 Defamation Act 1974 (NSW), s 13 Defamation Act 2005 (NSW) Defamation Amendment Act 2002 (NSW) LEGISLATION CITED: Evidence Act 1995 (NSW), ss 84 and 138 Limitation Act 1969 (NSW), ss 14B and 56A Limitation of Actions Act 1974 (Qld), s 32A Oaths Act 1900 (NSW) The Civil Procedure Rules 1998 (UK), Part 1 and Part 3 r 3.4 Uniform Civil Procedure Rules 2005 (NSW), Part 13 rr 13.4 and 14.8