Wayne v The Owners Corporation SP64622 [2014] NSWDC 217

District Court New South Wales

Medium Neutral Citation: Wayne v The Owners Corporation SP64622 [2014] NSWDC 217 Hearing dates: 30 October 2014 Decision date: 30 October 2014 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Note the plaintiff consents to the striking out of paragraph 8. (2) Note imputations (a), (b) and (c) are withdrawn. (3) Imputation (e) is struck out. (4) Imputation (f) is struck out. (5) Imputations (d), (g) and (h) will remain. (6) Particulars of aggravated damages in paragraphs 14(ii), 14(iii) and 14(iv) are struck out. (7) Note the plaintiff has withdrawn his special damages plea. (8) Proceedings against the first and second defendants are dismissed. (9) The plaintiff is to pay the costs of the proceedings against the first and second defendants on an indemnity basis. (10) The plaintiff is to pay the costs of the third to sixth defendants of this application, including the costs of 2 May 2014, 20 June 2014, 29 August 2014, 10 October 2014 and today (30 October 2014), assessable forthwith and on an indemnity basis. (11) The plaintiff is to file and serve a Further Amended Statement of Claim in 14 days. (12) Matter stood over to the Defamation List on Friday 21 November 2014. Catchwords: TORT - defamation - litigant in person brings proceedings against six defendants for an unspecified number of publications over a six-month period for which one set of imputations is pleaded - four successive statements of claim provided during application to strike out pleadings - whether proceedings should be summarily dismissed on the basis that publication had not been established - whether failure to plead the contents of the matters complained of (and which defendant) resulted in the proceedings, although commenced within time, failed to identify publication within the time frame of s 14B Limitation Act 1969 (NSW) in relation to one or more of the defendants - no claim of publication pleaded within the limitation period in relation to first and second defendants - claim against first and second defendants dismissed - claim against remaining defendants limited to one publication - challenge to form and capacity of imputations arising from that publication - particulars of aggravated damages struck out as deficient - claim for special damage withdrawn - costs - application listed on four occasions between May and October for hearing due to plaintiff's inadequate pleadings - correspondence to plaintiff warning of costs consequences - whether costs should be paid on an indemnity basis - whether third to sixth defendants' costs should be payable forthwith. Legislation Cited: Civil Procedure Act 2005 (NSW), ss 65(2)(c) and 98 Limitation Act 1969 (NSW), s 14B Uniform Civil Procedure Rules 2005 (NSW), rr 14.30, 21.2(1)(a), 42.2 and 42.5 Cases Cited: Ahmed v John Fairfax Publications Pty Ltd [2006] NSWSC 11 Bevillesta Pty Ltd v D Tannous (No 2) Pty Ltd [2010] NSWCA 277 Bhagat v Global Custodians Ltd [2002] FCAFC 51 Bleyer v Google Inc (2014) 311 ALR 529 Bodenstein v Hope Street Urban Compassion (Supreme Court of New South Wales, McCallum J, 2 December 2013) Cummings v 2KY Broadcasters Pty Ltd (1981) 1 NSWLR 246 Dank v Cronulla-Sutherland District Rugby League Football Club [2013] NSWSC 1101 Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 Fiduciary Ltd v Morningstar Research (2002) 55 NSWLR 1 Glaser v Poole (No 2) [2010] NSWLEC 232 Harrigan v Jones [2000] NSWSC 814 Harrison v Schipp [2001] NSWCA 13 Johnson v Department of Community Services (No 2) [1999] NSWSC 1251 Kaiser v George Laurens (NSW) Pty Ltd [1982] 1 NSWLR 294 Linnell v Channel Seven Sydney Pty Ltd [2014] NSWSC 20 Mbuzi v Hall [2010] QSC 359 Oliver v Bryant Strata Management Pty Ltd (Supreme Court of New South Wales, Levine J, 16 May 1995) Oshlack v Richmond River Council (1998) 193 CLR 72 Rossen v Airey [2012] WASCA 26 Singleton v John Fairfax & Sons Ltd (Supreme Court of New South Wales, Hunt J, 20 February 1980) Webb v Bloch (1928) 41 CLR 331 Texts Cited: Brown on Defamation (2nd ed., Carswell) Category: Interlocutory applications Parties: Plaintiff: David Wayne First Defendant: The Owners Corporation SP64622 Second Defendant: Ralf Harding Third Defendant: Francis Management Building Services Pty Ltd (ACN 107 531 055) Fourth Defendant: David Stanger Fifth Defendant: Phillip Warren Metcalf Sixth Defendant: Shaun Singh Representation: Plaintiff: In person First, Second and Sixth Defendants: Mr M Robertson (solicitor) Third, Fourth and Fifth Defendants: Mr M Richardson Plaintiff: In person First, Second and Sixth Defendants: Colin Biggers & Paisley Third, Fourth and Fifth Defendants: Lee & Lyons File Number(s): 2014/57777 Publication restriction: None