Polias v Ryall [2013] NSWSC 1267

Supreme Court New South Wales

Medium Neutral Citation: Polias v Ryall [2013] NSWSC 1267 Hearing dates: 2 September 2013 Decision date: 05 September 2013 Before: McCallum J Decision: Rulings as to imputations Catchwords: DEFAMATION - imputations - objections as to form and capacity - whether plaintiff should have leave to replead imputations objected to Legislation Cited: Civil Procedure Act 2005, ss 53(3), 60 Cases Cited: Bennette v Cohen [2005] NSWCA 341; (2005) 64 NSWLR 81 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Mundey v Askin [1982] 2 NSWLR 369 Category: Interlocutory applications Parties: Nicholas Polias (plaintiff) Tobin Ryall (first defendant) Andy Hun Wei Lee (second defendant) Sandy Jan (third defendant) Rhys Gould (fourth defendant) Representation: Counsel: P Afshar (plaintiff) M Rollinson (all defendants) Solicitors: Hemsley Lawyers (plaintiff) Phoenix Attorneys (first defendant) Oliveri Attorneys (second defendant) BPH Legal (third defendant) Peter Papadopoulos & Co (fourth defendant) File Number(s): 2013/161335 Publication restriction: None

Judgment 1HER HONOUR: Mr Nicholas Polias is a golf instructor and a regular poker player. By this action, Mr Polias seeks damages for defamation arising out of a series of statements made by his former fellow poker players on Facebook and in conversations at various gambling venues. 2The application before the Court is the defendants' application brought by notice of motion filed 2 August 2013 to have some of the defamatory imputations relied upon by the plaintiff struck out. There are four defendants to the action. Whilst each is represented by a separate law firm, they have cooperated to the extent of instructing the solicitor for the second defendant to file a single motion for his client and as agent for the other three defendants. All were represented by the same barrister, Mr Rollinson, at the hearing of the motion. I note that approach for the purpose of recording that, whereas it was initially met with some resistance on behalf of the plaintiff, it was in my view an appropriate cost-saving measure demonstrating proper compliance by those parties with their duty under s 53(3) of the Civil Procedure Act 2005, which requires parties to assist the Court to further the overriding purpose of the Act of facilitating the just, quick and cheap resolution of the real issues in the proceedings. 3There are 15 matters complained of in the proceedings. The defendants' objections relate to 13 of those. At the outset of the hearing Mr Afshar, who appears for the plaintiff, stated that the plaintiff wished to replead some of the imputations objected to. The concession related to eight of the 13 matters complained of addressed in the defendants' objections. Mr Rollinson responded by stating that, notwithstanding that concession, the defendants sought rulings as to their various objections and would oppose the grant of leave to replead. In those circumstances, I determined that I should give rulings as to all of the defendants' objections. In my experience, it is generally ultimately more conducive to the efficient management of defamation proceedings to determine objections to the pleadings when first raised rather than to postpone that day by acceding to a plaintiff's capitulation to the need to replead.