Kang v Channel Seven Sydney Pty Ltd [2016] NSWDC 307

District Court New South Wales

Medium Neutral Citation: Kang v Channel Seven Sydney Pty Ltd [2016] NSWDC 307 Hearing dates: 10 November 2016 Date of orders: 15 November 2016 Decision date: 15 November 2016 Jurisdiction: Civil Before: Gibson DCJ Decision: (1) Plaintiff's Notice of Motion filed in court on 10 November 2016 dismissed. (2) Defendants' Notices of Motion of 29 July 2016, 25 August 2016 and 30 August 2016 granted; these proceedings are struck out and dismissed. (3) The plaintiff is to pay the defendants' costs of these proceedings. (4) Liberty to apply concerning costs. Catchwords: PRACTICE AND PROCEDURE – delay in commencement and conduct of litigation – plaintiff commences defamation proceedings against seven defendants but fails to serve the defendants before the first return date – substantial pleading errors in statement of claim remain unrectified despite leave to amend being granted and, when those orders were not complied with, costs orders being made – defendants bring applications for summary dismissal and to set aside the claims made against the unserved parties – belated application by plaintiff for extension of time to serve the statement of claim and for leave to amend – proposed amended statement of claim still defective – whether proceedings should be summarily dismissed under UCPR r 12.7 and s 61 Civil Procedure Act 2005 (NSW) – whether unserved parties entitled to a declaration that the statement of claim had not been served and an order that the statement of claim be set aside under UCPR r 12.11(1)(c) – unsatisfactory explanations by plaintiffs for delay, failure to serve and failure to comply with orders – orders sought by defendants made Legislation Cited: Civil Procedure Act 2005 (NSW), ss 56 – 62 and 67 Defamation Act 1974 (NSW), s 9(3) Defamation Act 2005 (NSW), s 23 Uniform Civil Procedure Rules 2005 (NSW), rr 6.2, 10.20, 12.7, 12.11 and 18.5 Cases Cited: Alex v Australian Broadcasting Corporation [2015] NSWDC 78 Campbell v Regional Publishers Pty Ltd (Supreme Court of NSW, 30 October 1998) Crux - Southern Cross University Post Graduate Association Inc v Watts [2013] NSWDC 254 Duke of Brunswick v Harmer (1849) 14 QB 185 Foley v Rosier [2014] NSWDC 92 Ghosh v Ninemsn Pty Ltd [2015] NSWCA 334 Habib v Radio 2UE Pty Ltd [2009] NSWCA 231 Hanson v Hunter [2015] NSWDC 220 Hunter v Hanson [2014] NSWCA 263 Hunter v Hanson [2015] HCATrans 16 Kang v Australian Broadcasting Corporation [2015] NSWCA 376 Kang v Australian Broadcasting Corporation [2015] NSWSC 893 Kang v Immigration News Pty Ltd [2016] NSWDC 74 McCarey v Associated Newspapers Ltd [1965] 2 QB 86 Smith v Grant (2006) 67 NSWLR 735 SZWCA v Minister for Immigration & Anor [2015] FCCA 1249 Weston v Publishing and Broadcasting Ltd [2012] NSWCA 79 White v Sparks [2015] NSWDC 53 Texts Cited: J.D. Evans, "Seizure of a Member's document under search warrant", The Table, Vol 72, 2004 Report of Standing Committee on Parliamentary Privilege and Ethics (Report 23 – December 2003), Legislative Council of New South Wales Spencer Bower, "A Code of the Law of Actionable Defamation", 2nd ed (1923) Butterworth & Co Category: Procedural and other rulings Parties: Plaintiff: Edward (Eddie) Kang First Defendant: Channel Seven Sydney Pty Ltd (ACN 000 145 246) Second Defendant: Helen Wellings Third Defendant: State of New South Wales Fourth Defendant: The Hon. Matthew Ryan Mason-Cox Fifth Defendant: David Byrne, Department of Fair Trading Sixth Defendant: Nationwide News Pty Ltd Seventh Defendant: Jay Bishop, Department of Fair Trading Representation: Counsel: Plaintiff: Mr R Rasmussen First and Second Defendants: Mr R Jedrzejczyk Third, Fourth, Fifth and Seventh Defendant: Mr B Watts (solicitor) Sixth Defendant: Ms L E Barnett