Supreme Court New South Wales Medium Neutral Citation: Mohareb v Jankulovski [2014] NSWSC 451 Hearing dates: 14 April 2014 Decision date: 17 April 2014 Before: Harrison J Decision: 1. Order the defendants to file their defence to the second further amended statement of claim filed 3 April 2014 within 14 days. 2. Stand the proceedings into the Defamation List in June 2014 before McCallum J. 3. Order that the plaintiff pay the costs of the proceedings before Rothman J on 24 March 2014. 4. Make no order as to the costs of the proceedings on 14 April 2014. Catchwords: PROCEDURE - defamation - application to strike out or dismiss proceedings for want of due despatch - UCPR 12.7, 14.28, 42.20 Legislation Cited: Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: Nader Mohareb (Plaintiff) Emil Jankulovski (First Defendant) Emil & Sons Pty Ltd t/as Inducta Engineering (Second Defendant) Representation: Counsel: C J Dibb (Plaintiff) M Dulhunty (Defendants) Solicitors: C Jankulovska (Defendants) File Number(s): 2012/68684 Publication restriction: Nil Judgment 1HIS HONOUR: These proceedings have a relatively short but unfortunate history. It appears very unlikely that they will be concluded soon. 2By notice of motion filed on 4 March 2014 the defendants sought the following orders (a) That Further Amended Statement of Claim filed on 31 May 2012 and the proceedings be struck out for want of prosecution pursuant to Regulation 12.7, 14.28 and 42.20 of the Uniform Civil Procedure Rules, 2005 (UCPR); (b) Alternatively that Further Amended Statement of Claim filed on 31 May 2012 and the proceedings be dismissed for want of prosecution pursuant to Regulation 12.7, 14.28 and 42.20 of the UCPR; (c) That the plaintiff not be given leave to replead his claim; (d) That the plaintiff return forthwith the dongles handed to him by the first defendant on 4 February 2013; (e) That the plaintiff pay the defendants costs of the proceedings on the indemnity basis. 3The defendants' application was supported by an affidavit of Cvetanka Jankulovska sworn 4 March 2014. It is presently unnecessary to refer in any detail to the matters to which Ms Jankulovska deposes. 4The proceedings had earlier come before Harrison AsJ on 7 and 8 May 2013. Her Honour published her reasons for judgment on 27 June 2013: see Mohareb v Jankulovski [2013] NSWSC 850. One of the orders made by her Honour on that day was that paragraph 8 of the further amended statement of claim filed on 31 May 2012 be struck out: see paragraph [9] below. In formulating her decision to do so, her Honour said this at [100]-[101]: "[100] A claim of malice must be pleaded in reply to a defamation defence pleaded by the defendants. Mr Mohareb has not filed a reply to the defendants' amended defence. [101] Consequently, I order that paragraph 8 of the FASC be struck out pursuant to UCPR 14.31 and grant leave for Mr Mohareb to file a reply to the defendants' amended defence." 5The defendants' 4 March 2014 notice of motion came before Rothman J on 24 March 2014. His Honour made the following orders: 1. The motion is adjourned before the Registrar on 14 April 2014. 2. The plaintiff is to file and serve by 4pm 7 April 2014 a second further amended statement of claim that seeks to comply with the orders of Harrison AsJ of 27 June 2013. 3. Costs of today are reserved to be dealt with by whoever hears the motion on the adjourned date. 6The proceedings in due course came before me as anticipated by order 1 made by Rothman J on 24 March 2014. At that time the defendants sought to strike out the second further amended statement of claim which had by then been filed by the plaintiff on 3 April 2014 in compliance with order 2 made by Rothman J. 7The defendants contended before me that their application to strike out the proceedings for want of due despatch remained on foot and that it should proceed with respect to the latest version of the plaintiff's pleadings, notwithstanding orders made by Rothman J in the terms to which I have just referred. I note that when the matter came before me the plaintiff remained opposed to the application to strike out the latest version of his pleadings but quite reasonably took no formal procedural objection to the defendants' reliance upon their original application as if a fresh notice of motion in cognate terms had been filed. 8Whatever may be said with respect to the wealth of material referred to in Ms Jankulovska's affidavit concerning the plaintiff's less than enthusiastic attention to the prosecution of his proceedings, it seems to me clearly to be inherent in the decision arrived at by Rothman J that his Honour declined to accede to the application to strike out the proceedings for want of due despatch. I acknowledge that his Honour made no order to that effect. However, I am encouraged in that view by two matters. First, the defendants' notice of motion sought an order that the plaintiff not be given leave to replead his claim. No order in those terms was made. Secondly, his Honour on the contrary ordered the plaintiff to file and serve a further pleading, rather suggesting that his Honour took the view that the defendants' principal claims for relief had not been made out and that the proceedings should remain on foot subject only to the preparation of a further statement of claim. 9The second further amended statement of claim pleads a cause of action in defamation against the defendants, which, subject to one matter, they acknowledge is in unexceptionable terms. The defendants do, however, take exception to paragraph 8 of that document. That paragraph pleads and particularises a claim for aggravated damages which the defendants contend is precluded by the terms of the judgment of Harrison AsJ to which I have earlier referred. Relevantly for present purposes her Honour's orders were in these terms: "(3) Paragraph 8 of the further amended statement of claim filed 31 May 2012 is struck out. (4) Leave is granted to the plaintiff to replead his claim in relation to misleading or deceptive conduct only. The balance of the further amended statement of claim remains but is to be incorporated into the second further amended statement of claim. A second further amended statement of claim is to be filed and served within 14 days." 10It seems to me, having regard to these matters, that the plaintiff's second further amended statement of claim conforms to order 2 made by Rothman J on 24 March 2014. I do not consider that the judgment or orders of Harrison AsJ made on 27 June 2013 lead to the result that the plaintiff became or remains disentitled to maintain a claim for aggravated damages. In expressing that opinion I make no comment about whether or not paragraph 8 is otherwise amenable to attack by the defendants on some other basis. 11In my opinion the following orders should be made: 1. Order the defendants to file their defence to the second further amended statement of claim filed 3 April 2014 within 14 days. 2. Stand the proceedings into the Defamation List in June 2014 before McCallum J. 3. Order that the plaintiff pay the costs of the proceedings before Rothman J on 24 March 2014. 4. Make no order as to the costs of the proceedings before me on 14 April 2014. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 April 2014