Mohareb v Palmer (No. 2) [2015] NSWDC 141

District Court New South Wales

Medium Neutral Citation: Mohareb v Palmer (No. 2) [2015] NSWDC 141 Hearing dates: 5 June 2015 Date of orders: 30 July 2015 Decision date: 30 July 2015 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated. (2) Defendants' notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs. (3) The plaintiff's notice of motion of 29 May 2015 (seeking leave to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW)) is dismissed. (4) The plaintiff is to pay the defendants' costs in relation to his notice of motion of 29 May 2015 on an indemnity basis. (5) The defendants' application for a lump sum costs order (pursuant to s 98 Civil Procedure Act 2005 (NSW)) is dismissed, as is any application by the plaintiff for reimbursement of any disbursement to which he may be entitled as a litigant in person. Catchwords: TORT - practice and procedure - parties enter into settlement of defamation proceedings which solely required (apart from costs issues) publication by the defendants of an apology on Facebook within 14 days of the deed being signed - apology removed from Facebook on same day as lodgement - plaintiff refuses to sign Notice of Discontinuance on the basis that the terms of the deed had not been complied with - whether defendants entitled to an order pursuant to s 73 Civil Procedure Act 2005 (NSW) that the proceedings were settled - whether a second removal of the apology by the first defendant amounted to non-compliance with the terms of settlement - apology belatedly published on Facebook six weeks later - parties still wished to compromise proceedings for an apology - plaintiff now dissatisfied with the form (but not the wording) of the apology - consideration of s 61 Civil Procedure Act and Saltearn v Saltearn [2015] NSWSC 582 - defendants' belated publication of the apology sufficient basis to warrant the proceedings being dismissed under s 61 PERJURY - plaintiff's application for leave to to prosecute the first defendant for perjury pursuant to s 338(1)(c) Crimes Act 1900 (NSW) - plaintiff's notice of motion dismissed COSTS - defendants' application for indemnity costs and a gross sum costs order under s 99 Civil Procedure Act - plaintiff to pay defendants' costs of his notice of motion to prosecute the first defendant to be paid on an indemnity basis, but the defendants otherwise to pay his or her own costs Legislation Cited: Civil Procedure Act 2005 (NSW), ss 61, 73 and 98 Crimes Act 1900, s 338(1)(c) Cases Cited: Bleyer v Google Inc (2014) 311 ALR 529 Freeburn v Cake Decorators Association (NSW) Inc (No 2) (2014) 19 DCLR (NSW) 232 Masters v Cameron (1954) 91 CLR 353 Mohareb v Palmer [2015] NSWDC 134 Moss v McIlveen [2011] NSWCA 77 Saltearn v Saltearn [2015] NSWSC 582 Sanders v Constantine [2006] NSWSC 534 Summertime Holdings Pty Ltd v Environmental Defender's Office Ltd [1998] 45 NSWLR 291 Category: Principal judgment Parties: Plaintiff: Nader Mohareb First Defendant: Matt Palmer Second Defendant: Annette Palmer Representation: Counsel: Plaintiff: In person Defendant: Mr M Lewis