Ultrasonic Slimming Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Ors [2013] NSWSC 547

Ultrasonic Slimming Pty Ltd & Ors v Fairfax Media Publications Pty Ltd & Ors [2013] NSWSC 547

The plaintiffs established that the third defendant could not practicably be personally served because her whereabouts were unknown to them, while the first and second defendants and their solicitors were in contact with her. An order for substituted service on the solicitor for the first and second defendants would bring the amended statement of claim to her notice. The journalist privilege provisions in the Evidence Act 1995 did not apply to the application because they protect the journalist and employer from compelled disclosure and do not extend to the informant, and the substituted service order itself required no disclosure of the third defendant's true identity. The possibility...

Jurisdiction
Australia
Judgment Date
15 May 2013
Procedural Posture
Defamation Proceedings Concerning an Article Published in the Sydney Morning Herald / Interlocutory Application for Substituted Service Under UCPR R 10.14
Outcome
Application granted; substituted service ordered and first and second defendants ordered to pay the plaintiffs' costs.
Legal Topics
['substituted Service' 'journalist Privilege' 'identity of Informant' 'pseudonymous Defendant' 'suppression and Non Publication Orders']
['practice and Procedure' 'defamation' 'evidence'] ['substituted Service' 'journalist Privilege' 'identity of Informant' 'pseudonymous Defendant' 'suppression and Non Publication Orders']

Case Brief

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Procedural Posture

Defamation Proceedings Concerning an Article Published in the Sydney Morning Herald / Interlocutory Application for Substituted Service Under UCPR R 10.14

Legal Issues

  1. 1 ['Whether service of the amended statement of claim on the third defendant could practicably be effected personally or in the manner provided by law.' 'Whether substituted service on the solicitor for the first and second defendants would bring the amended statement of claim to the notice of the third defendant.' 'Whether journalist privilege under the Evidence Act 1995 prevented an order for substituted service because the third defendant was a confidential informant identified by a pseudonym.' "Whether an order for substituted service would amount to disclosure of the third defendant's identity or an abuse of process."]

Ratio Decidendi

The plaintiffs established that the third defendant could not practicably be personally served because her whereabouts were unknown to them, while the first and second defendants and their solicitors were in contact with her. An order for substituted service on the solicitor for the first and second defendants would bring the amended statement of claim to her notice. The journalist privilege provisions in the Evidence Act 1995 did not apply to the application because they protect the journalist and employer from compelled disclosure and do not extend to the informant, and the substituted service order itself required no disclosure of the third defendant's true identity. The possibility...

Court Disposition

Application granted; substituted service ordered and first and second defendants ordered to pay the plaintiffs' costs.

Orders

  • ['Pursuant to UCPR Pt 10, r 10.14 service of the amended statement of claim on the third defendant named "Suzie Driver" be effected by service upon the solicitor for the first and/or second defendants within seven days.' "The first and second defendants pay the plaintiffs' costs." "These proceedings be stood over...