Josh Massoud v Harbour Radio Pty Limited; Josh Massoud v Fox Sports Australia Pty Limited; Josh Massoud v Australian Radio Network Pty Limited; Josh Massoud v Nine Entertainment Co Holdings Limited; Josh Massoud v Nationwide News Pty Limited [2019] NSWDC 403

Josh Massoud v Harbour Radio Pty Limited; Josh Massoud v Fox Sports Australia Pty Limited; Josh Massoud v Australian Radio Network Pty Limited; Josh Massoud v Nine Entertainment Co Holdings Limited; Josh Massoud v Nationwide News Pty Limited [2019] NSWDC 403

The defendants did not establish that the proceedings were an abuse of process. Taking the plaintiff's case at its highest, the publications were clearly arguable as defamatory, the plaintiff's damages were not shown to be necessarily nominal, the operation of s 38 of the Defamation Act 2005 was a matter to be determined at or after trial, and the defendants did not show that the costs and resources required were out of all proportion to the interest at stake, particularly given the role of vindication of reputation in defamation proceedings.

Jurisdiction
Australia
Judgment Date
09 August 2019
Procedural Posture
Civil Defamation Proceedings / Defendants' Interlocutory Application to Dismiss the Five Proceedings Pursuant to UCPR R 13.4 on the Basis of Abuse of Process and Proportionality
Outcome
Defendants' applications for dismissal dismissed with costs.
Legal Topics
['abuse of Process' 'principle of Proportionality' 'summary Dismissal' 'mitigation of Damages' 'vindication of Reputation']
['defamation' 'civil Procedure'] ['abuse of Process' 'principle of Proportionality' 'summary Dismissal' 'mitigation of Damages' 'vindication of Reputation']

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Procedural Posture

Civil Defamation Proceedings / Defendants' Interlocutory Application to Dismiss the Five Proceedings Pursuant to UCPR R 13.4 on the Basis of Abuse of Process and Proportionality

Legal Issues

  1. 1 ['Whether the five defamation proceedings should be dismissed under UCPR r 13.4 as an abuse of process because the court and party resources required would be out of all proportion to the interest at stake.' "Whether the plaintiff's potential damages would necessarily be nominal, including by reason of the plaintiff's own conduct and s 38 of the Defamation Act 2005." 'Whether the value of vindication of reputation in defamation proceedings meant the interest at stake could not be assessed only by likely monetary damages.']

Ratio Decidendi

The defendants did not establish that the proceedings were an abuse of process. Taking the plaintiff's case at its highest, the publications were clearly arguable as defamatory, the plaintiff's damages were not shown to be necessarily nominal, the operation of s 38 of the Defamation Act 2005 was a matter to be determined at or after trial, and the defendants did not show that the costs and resources required were out of all proportion to the interest at stake, particularly given the role of vindication of reputation in defamation proceedings.

Court Disposition

Defendants' applications for dismissal dismissed with costs.

Orders

  • ["The application brought by the defendants for dismissal of the plaintiff's proceedings, in the five matters, pursuant to UCPR r 13.4, is dismissed." "The defendants are to pay the plaintiff's costs of the applications."]