Massoud v Australian Radio Network Pty Limited; Massoud v Nine Entertainment Co Holdings Limited [2019] NSWDC 708

Massoud v Australian Radio Network Pty Limited; Massoud v Nine Entertainment Co Holdings Limited [2019] NSWDC 708

The Court found that the plaintiff intended to sue the publisher of the matter complained of, but was mistaken as to the correct legal entity due to confusion among corporate identities and responses to concerns notices; the mistake was sufficient to permit substitution under s 65(2)(b) of the Civil Procedure Act 2005 (NSW), and discretionary factors favoured granting leave to substitute the correct defendants, despite the limitation period expiring.

Parties
Plaintiff: Josh Massoud; Defendant (original, 2019/133979): Australian Radio Network Pty Limited; Defendant (original, 2019/134011): Nine Entertainment Co Holdings Limited; Plaintiff's Solicitor: O'Brien Solicitors; Defendant's Solicitor (2019/133979): Banki Haddock Fiora; Defendant's Solicitor (2019/134011): Macpherson Kelley; Defendant (substituted, 2019/133979): Commonwealth Broadcasting Corporation Pty Limited; Defendant (substituted, 2019/134011): Nine Digital Pty Limited
Jurisdiction
Australia
Judgment Date
28 November 2019
Procedural Posture
Civil / Interlocutory Application for Substitution of Parties; Orders for Substitution and Standing Over to Defamation List
Outcome
Substitution of parties ordered; costs reserved; matter stood over to Defamation List; liberty to apply.
Legal Topics
Substitution of Parties, Correction of Parties' Names, Mistake in Party Identity, Limitation Period in Defamation, Procedural Discretion
Civil Procedure Defamation Substitution of Parties Correction of Parties' Names Mistake in Party Identity Limitation Period in Defamation Procedural Discretion

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Parties

Josh Massoud

Plaintiff

Australian Radio Network Pty Limited

Defendant (original, 2019/133979)

Nine Entertainment Co Holdings Limited

Defendant (original, 2019/134011)

O'Brien Solicitors

Plaintiff's Solicitor

Banki Haddock Fiora

Defendant's Solicitor (2019/133979)

Macpherson Kelley

Defendant's Solicitor (2019/134011)

Commonwealth Broadcasting Corporation Pty Limited

Defendant (substituted, 2019/133979)

Nine Digital Pty Limited

Defendant (substituted, 2019/134011)

Procedural Posture

Civil / Interlocutory Application for Substitution of Parties; Orders for Substitution and Standing Over to Defamation List

Legal Issues

  1. 1 Whether the error in the name of the defendant was a mistake under s 65(2)(b) Civil Procedure Act 2005 (NSW)
  2. 2 Whether Court's discretion should be exercised to permit substitution under ss 64(2), 65(2)(b) Civil Procedure Act 2005 (NSW)
  3. 3 Whether the limitation period bars substitution

Ratio Decidendi

The Court found that the plaintiff intended to sue the publisher of the matter complained of, but was mistaken as to the correct legal entity due to confusion among corporate identities and responses to concerns notices; the mistake was sufficient to permit substitution under s 65(2)(b) of the Civil Procedure Act 2005 (NSW), and discretionary factors favoured granting leave to substitute the correct defendants, despite the limitation period expiring.

Court Disposition

Substitution of parties ordered; costs reserved; matter stood over to Defamation List; liberty to apply.

Orders

  • Commonwealth Broadcasting Corporation Pty Limited substituted as defendant in place of Australian Radio Network Pty Limited in proceedings 2019/133979.
  • Nine Digital Pty Limited substituted as defendant in place of Nine Entertainment Co Holdings Limited in proceedings 2019/134011.