Commisso v United Telecasters Sydney Pty Limited & 8 Ors [1999] NSWSC 51

Commisso v United Telecasters Sydney Pty Limited & 8 Ors [1999] NSWSC 51

The proceedings were not stayed or dismissed for want of prosecution because, although there was unexplained delay, there was no real evidence of prejudice to the relevant defendants in light of the pleaded defences. Service on the second, third and ninth defendants was confirmed because the Court was not required to treat service as a nullity and no prejudice arose. The second defendant was not permitted to withdraw his appearance and defence. Summary dismissal was refused for the fifth and sixth defendants because whether their roles in filming and editing amounted to participation in the alleged publication was a matter for trial. The claim against the eighth defendant was summarily...

Jurisdiction
Australia
Judgment Date
12 February 1999
Procedural Posture
Defamation Proceedings / Notice of Motion for Stay or Dismissal for Want of Prosecution, Service Objections, Withdrawal of Appearance and Defence, and Summary Dismissal
Outcome
Application mostly refused; proceedings against the eighth defendant summarily dismissed.
Legal Topics
['summary Dismissal' 'want of Prosecution' 'service of Amended Statement of Claim' 'joint Tortfeasors' 'publication of Defamatory Matter' 'liability of Legal Practitioner for Legal Advice']
['defamation' 'civil Procedure' 'torts' 'legal Professional Privilege'] ['summary Dismissal' 'want of Prosecution' 'service of Amended Statement of Claim' 'joint Tortfeasors' 'publication of Defamatory Matter' 'liability of Legal Practitioner for Legal Advice']

Case Brief

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Procedural Posture

Defamation Proceedings / Notice of Motion for Stay or Dismissal for Want of Prosecution, Service Objections, Withdrawal of Appearance and Defence, and Summary Dismissal

Legal Issues

  1. 1 ['Whether the proceedings should be stayed or dismissed for want of prosecution after periods of unexplained delay.' 'Whether service of the Amended Statement of Claim on the second, third and ninth defendants should be set aside or confirmed despite the SCR Pt 7 r 7 point.' 'Whether the second defendant should have leave under SCR Pt 21 rr 1 and 3 to withdraw his appearance and defence.' 'Whether the proceedings against the fifth, sixth and eighth defendants should be summarily dismissed under SCR Pt 13 r 5.' 'Whether the fifth defendant cameraman and sixth defendant video tape editor could be liable as joint tortfeasors in the publication of alleged defamatory matter.' 'Whether the eighth defendant in-house solicitor should remain a defendant where his involvement was giving legal advice and legal professional privilege was maintained.']

Ratio Decidendi

The proceedings were not stayed or dismissed for want of prosecution because, although there was unexplained delay, there was no real evidence of prejudice to the relevant defendants in light of the pleaded defences. Service on the second, third and ninth defendants was confirmed because the Court was not required to treat service as a nullity and no prejudice arose. The second defendant was not permitted to withdraw his appearance and defence. Summary dismissal was refused for the fifth and sixth defendants because whether their roles in filming and editing amounted to participation in the alleged publication was a matter for trial. The claim against the eighth defendant was summarily...

Court Disposition

Application mostly refused; proceedings against the eighth defendant summarily dismissed.

Orders

  • ['I decline orders 1, 2, 3 and 4 sought in the Notice of Motion filed on 8 October 1997.' 'I confirm service on the second defendant (Masters), the third defendant (Budd) and the ninth defendant (Williams).' 'I order that the proceedings against the eighth defendant (Murray) be summarily dismissed. I otherwise...