Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89

Kostov v Zhang; Kostov v Fairfax Media Publications Pty Ltd (No. 3) [2017] NSWDC 89

The plaintiff's applications were dismissed because she failed to establish any proper basis to set aside the 2 February 2017 peremptory orders or to obtain suppression. Her asserted absence arose from her own election to leave the hearing, her medical material did not justify another adjournment, and the fresh evidence about mail forwarding still did not establish an acceptable address for service under r 4.5 UCPR. Applying the overriding purpose, the applications were hopeless, further delay would prejudice the defendants, and costs sanctions would be pointless.

Jurisdiction
Australia
Judgment Date
01 May 2017
Procedural Posture
Civil Proceedings for Defamation and Injurious Falsehood / Applications by Notice of Motion to Set Aside Orders Under Rr 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (nsw), for Suppression of Judgments, and for Adjournment
Outcome
The plaintiff's adjournment application was refused, both notices of motion were dismissed, the plaintiff was ordered to pay the defendants' costs, and the defendants' applications for a stay of further notices of motion and/or appointment of a tutor were refused without prejudice.
Legal Topics
['application to Set Aside Orders' 'adjournment' 'suppression and Non Publication Orders' 'security for Costs' 'address for Service' 'peremptory Orders' 'costs']
['practice and Procedure' 'defamation' 'injurious Falsehood'] ['application to Set Aside Orders' 'adjournment' 'suppression and Non Publication Orders' 'security for Costs' 'address for Service' 'peremptory Orders' 'costs']

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Procedural Posture

Civil Proceedings for Defamation and Injurious Falsehood / Applications by Notice of Motion to Set Aside Orders Under Rr 36.15 and 36.16 Uniform Civil Procedure Rules 2005 (nsw), for Suppression of Judgments, and for Adjournment

Legal Issues

  1. 1 ['Whether the plaintiff should be granted an adjournment of the notice of motion filed on 21 February 2017.' 'Whether the orders made on 2 February 2017 should be set aside under r 36.15(1) Uniform Civil Procedure Rules 2005 (NSW).' "Whether the plaintiff's asserted absence from the 2 February 2017 hearing, medical evidence, or fresh evidence about her address for service justified setting aside the orders." 'Whether a suppression order should be made in relation to the judgment.' 'Whether the defendants should obtain orders staying further notices of motion or appointing a tutor.']

Ratio Decidendi

The plaintiff's applications were dismissed because she failed to establish any proper basis to set aside the 2 February 2017 peremptory orders or to obtain suppression. Her asserted absence arose from her own election to leave the hearing, her medical material did not justify another adjournment, and the fresh evidence about mail forwarding still did not establish an acceptable address for service under r 4.5 UCPR. Applying the overriding purpose, the applications were hopeless, further delay would prejudice the defendants, and costs sanctions would be pointless.

Court Disposition

The plaintiff's adjournment application was refused, both notices of motion were dismissed, the plaintiff was ordered to pay the defendants' costs, and the defendants' applications for a stay of further notices of motion and/or appointment of a tutor were refused without prejudice.

Orders

  • ["The plaintiff's application for adjournment of the notice of motion filed on 21 February 2017 (Exhibit A) in relation to orders (1) and (2) (orders (3) and (4) not being pressed) is refused." 'The notice of motion filed on 21 February 2017 is dismissed on the basis of my orders of 2 February 2017.' "The...