Mohareb v Palmer (No. 2) [2015] NSWDC 141

Mohareb v Palmer (No. 2) [2015] NSWDC 141

The defendants did not comply with the deed because the apology had to be published on the Facebook page within 14 days and remain there in the ordinary way; an apology visible only for a few hours after reinstatement and then removed, in circumstances where the Court was comfortably satisfied it was removed by Mr Palmer, did not satisfy that requirement. However, the apology was later published and had been on the website for months, so the reputational issues were sufficiently reduced and continued prosecution of the defamation claim lacked utility. Applying proportionality principles, the proceedings were dismissed under s 61 Civil Procedure Act 2005 (NSW), while the defendants' s 73...

Jurisdiction
Australia
Judgment Date
30 July 2015
Procedural Posture
Defamation Proceedings With Motions Concerning Settlement, Dismissal, Perjury and Costs / Principal Judgment on Defendants' Notice of Motion Filed 19 May 2015 and Plaintiff's Notice of Motion Filed 29 May 2015
Outcome
Proceedings dismissed under s 61 Civil Procedure Act 2005 (NSW); defendants' s 73 motion dismissed; plaintiff's perjury leave motion dismissed; indemnity costs ordered against the plaintiff only for the perjury motion; lump sum costs application dismissed.
Legal Topics
['settlement and Compromise of Proceedings' 'publication of Apology on Facebook' 'dismissal Under S 61 Civil Procedure Act 2005 (nsw)' 'determination of Settlement Questions Under S 73 Civil Procedure Act 2005 (nsw)' 'perjury Leave Application Under S 338(1)(c) Crimes Act 1900 (nsw)' 'indemnity Costs' 'lump Sum Costs']
['tort' 'defamation' 'civil Procedure' 'costs' 'criminal Law'] ['settlement and Compromise of Proceedings' 'publication of Apology on Facebook' 'dismissal Under S 61 Civil Procedure Act 2005 (nsw)' 'determination of Settlement Questions Under S 73 Civil Procedure Act 2005 (nsw)' 'perjury Leave Application Under S 338(1)(c) Crimes Act 1900 (nsw)' 'indemnity Costs' 'lump Sum Costs']

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Procedural Posture

Defamation Proceedings With Motions Concerning Settlement, Dismissal, Perjury and Costs / Principal Judgment on Defendants' Notice of Motion Filed 19 May 2015 and Plaintiff's Notice of Motion Filed 29 May 2015

Legal Issues

  1. 1 ['Whether the proceedings were compromised or settled on the terms of the deed of settlement and release for the purposes of s 73 Civil Procedure Act 2005 (NSW).' "Whether removal and late republication of the Facebook apology meant the defendants had failed to comply with the settlement deed's requirement to publish the apology within 14 days." 'Whether, notwithstanding non-compliance with the 14-day publication requirement, the proceedings should be dismissed under s 61 Civil Procedure Act 2005 (NSW) by reference to proportionality after the apology was belatedly published.' 'Whether the plaintiff should be granted leave to prosecute the first defendant for perjury under s 338(1)(c) Crimes Act 1900 (NSW).' 'Whether either side should receive costs, including indemnity costs or a lump sum costs order.']

Ratio Decidendi

The defendants did not comply with the deed because the apology had to be published on the Facebook page within 14 days and remain there in the ordinary way; an apology visible only for a few hours after reinstatement and then removed, in circumstances where the Court was comfortably satisfied it was removed by Mr Palmer, did not satisfy that requirement. However, the apology was later published and had been on the website for months, so the reputational issues were sufficiently reduced and continued prosecution of the defamation claim lacked utility. Applying proportionality principles, the proceedings were dismissed under s 61 Civil Procedure Act 2005 (NSW), while the defendants' s 73...

Court Disposition

Proceedings dismissed under s 61 Civil Procedure Act 2005 (NSW); defendants' s 73 motion dismissed; plaintiff's perjury leave motion dismissed; indemnity costs ordered against the plaintiff only for the perjury motion; lump sum costs application dismissed.

Orders

  • ['Pursuant to s 61 Civil Procedure Act 2005 (NSW), these proceedings are dismissed and all previous costs orders are vacated.' "Defendants' notice of motion filed on 19 May 2015 (for orders pursuant to s 73 Civil Procedure Act 2005 (NSW)) dismissed with no order as to costs." "The plaintiff's notice of motion of 29...