Application by John Wilson [2016] NSWSC 1527

Application by John Wilson [2016] NSWSC 1527

Because the applicant is subject to a vexatious proceedings order, the Court could not grant leave without first complying with s 16(1) of the Vexatious Proceedings Act 2008 (NSW). The proposed preliminary discovery application under r 5.3 was a proceeding for which leave could be sought and might assist in determining whether any substantive defamation claim had prima facie merit. Orders should therefore be made requiring service on relevant persons and giving them an opportunity to be heard. Orders concerning r 5.4 discovery were not appropriate because the identity of a non-party with relevant documents was not established, and orders concerning substantive litigation were premature.

Jurisdiction
Australia
Judgment Date
28 October 2016
Procedural Posture
Application for Leave to Institute Proceedings Under the Vexatious Proceedings Act 2008 (nsw) / Interlocutory Orders for Service on Relevant Persons and Written Submissions Before Determination on the Papers
Outcome
Orders made for service of documents on relevant persons and for written submissions; application to be determined on the papers.
Legal Topics
['vexatious Litigant' 'leave to Institute Proceedings' 'preliminary Discovery' 'potential Defamation Claim']
['procedure' 'defamation'] ['vexatious Litigant' 'leave to Institute Proceedings' 'preliminary Discovery' 'potential Defamation Claim']

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Procedural Posture

Application for Leave to Institute Proceedings Under the Vexatious Proceedings Act 2008 (nsw) / Interlocutory Orders for Service on Relevant Persons and Written Submissions Before Determination on the Papers

Legal Issues

  1. 1 ['Whether the applicant, who is subject to a vexatious proceedings order, should be permitted to institute proceedings for preliminary discovery pursuant to rr 5.3 and 5.4 of the Uniform Civil Procedure Rules 2005 (NSW).' 'Whether orders should be made under s 16(1) of the Vexatious Proceedings Act 2008 (NSW) requiring service on relevant persons and giving them an opportunity to be heard.' 'Whether it was premature to consider leave for substantive defamation proceedings before preliminary discovery.']

Ratio Decidendi

Because the applicant is subject to a vexatious proceedings order, the Court could not grant leave without first complying with s 16(1) of the Vexatious Proceedings Act 2008 (NSW). The proposed preliminary discovery application under r 5.3 was a proceeding for which leave could be sought and might assist in determining whether any substantive defamation claim had prima facie merit. Orders should therefore be made requiring service on relevant persons and giving them an opportunity to be heard. Orders concerning r 5.4 discovery were not appropriate because the identity of a non-party with relevant documents was not established, and orders concerning substantive litigation were premature.

Court Disposition

Orders made for service of documents on relevant persons and for written submissions; application to be determined on the papers.

Orders

  • ["Within 14 days of the date of the orders the applicant is to serve each relevant person with the summons filed on 29 September 2016, the affidavit of John Wilson of 1 September 2016, the affidavit of Martin Thomas Slattery of 28 September 2016 and annexed documents A-F, the applicant's submissions filed on 20...