Minus v Harbour Radio Pty Ltd (No 3) [2017] NSWSC 1332

Minus v Harbour Radio Pty Ltd (No 3) [2017] NSWSC 1332

Although the plaintiff had failed to serve the amended statement of claim on time, failed to appear at the second listing, and prosecuted the proceedings slowly, dismissal at this stage would be too draconian given the circumstances, including that the alleged defamation struck at the heart of his professional reputation and was broadcast on a popular Sydney radio show. The pleaded imputation was sufficiently clear despite the word "condoned", so no clarification or amendment was required. The plaintiff's failure to read emails concerning the listings warranted indemnity costs for the defendants.

Jurisdiction
Australia
Judgment Date
17 August 2017
Procedural Posture
Defamation Proceedings / Show Cause Hearing Following Breach of Direction and Failure to Appear; Application Concerning Objection to an Imputation in the Further Amended Statement of Claim; Costs
Outcome
Proceedings not dismissed on the show cause requirement; defendants' objection to the imputation refused; defendants awarded costs assessed on an indemnity basis.
Legal Topics
['show Cause Requirement' 'dismissal for Want of Due Despatch' 'failure to Comply With Directions' 'failure to Appear' 'ambiguity of Pleaded Imputation' 'indemnity Costs']
['procedure' 'defamation' 'costs'] ['show Cause Requirement' 'dismissal for Want of Due Despatch' 'failure to Comply With Directions' 'failure to Appear' 'ambiguity of Pleaded Imputation' 'indemnity Costs']

Case Brief

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Procedural Posture

Defamation Proceedings / Show Cause Hearing Following Breach of Direction and Failure to Appear; Application Concerning Objection to an Imputation in the Further Amended Statement of Claim; Costs

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed after late service of the amended statement of claim, failure to appear at the second listing, and slow prosecution of the proceedings.' 'Whether the pleaded imputation using the word "condoned" was ambiguous or insufficiently precise and should be amended or struck out.' "Whether the defendants' costs of the listings on 4 August 2017 and 11 August 2017 should be assessed on an indemnity basis."]

Ratio Decidendi

Although the plaintiff had failed to serve the amended statement of claim on time, failed to appear at the second listing, and prosecuted the proceedings slowly, dismissal at this stage would be too draconian given the circumstances, including that the alleged defamation struck at the heart of his professional reputation and was broadcast on a popular Sydney radio show. The pleaded imputation was sufficiently clear despite the word "condoned", so no clarification or amendment was required. The plaintiff's failure to read emails concerning the listings warranted indemnity costs for the defendants.

Court Disposition

Proceedings not dismissed on the show cause requirement; defendants' objection to the imputation refused; defendants awarded costs assessed on an indemnity basis.

Orders

  • ['Proceedings not dismissed in respect of the show cause requirement.' 'Plaintiff warned of the need to improve the degree of attention and expedition given to the prosecution of the action.' 'Application to have the imputation struck out for ambiguity refused.' "Further amended statement of claim may stand as the...