Mohareb v Palmer [2015] NSWDC 134

Mohareb v Palmer [2015] NSWDC 134

Summary dismissal was refused because, although the plaintiff's pleadings and particulars were deficient and delay had occurred, the failures were not contumelious, the plaintiff was a litigant in person, the defamation pleading issues were complex, there had been no actual failures to comply with timetables, and the claim was not unmeritorious on its face. In particular, the first defendant's Facebook entry admitted uploading the poster that formed the second matter complained of, making at least some publication issues capable of being properly particularised. The appropriate course was to require substantial repleading, particulars of publication and downloading, and payment of the...

Jurisdiction
Australia
Judgment Date
05 March 2015
Procedural Posture
Civil Tort Proceedings in Defamation With Additional Assault/personal Injury Claims Foreshadowed / Defendants' Application for Summary Dismissal Under UCPR R 12.2 and Objections to Pleadings
Outcome
Defendants' application for summary dismissal refused; several imputations struck out or withdrawn with leave to replead in part; plaintiff ordered to provide a further amended statement of claim with particulars; plaintiff ordered to pay defendants' costs of the application and prior listing forthwith.
Legal Topics
['summary Dismissal' 'strike Out' 'defamation Pleadings' 'imputations' 'publication' 'internet Publication' 'particulars of Downloading' 'litigant in Person' 'costs' 'assault Claims']
['tort' 'defamation' 'civil Procedure'] ['summary Dismissal' 'strike Out' 'defamation Pleadings' 'imputations' 'publication' 'internet Publication' 'particulars of Downloading' 'litigant in Person' 'costs' 'assault Claims']

Case Brief

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Procedural Posture

Civil Tort Proceedings in Defamation With Additional Assault/personal Injury Claims Foreshadowed / Defendants' Application for Summary Dismissal Under UCPR R 12.2 and Objections to Pleadings

Legal Issues

  1. 1 ["Whether the plaintiff's defamation claims should be summarily dismissed under UCPR r 12.2 because of deficient successive statements of claim and alleged failures to provide particulars." 'Whether the pleaded imputations arising from the first matter complained of were capable of being conveyed and properly pleaded.' 'Whether the plaintiff should be required to provide further particulars of publication, including downloading of online publications by identifiable persons.' 'Whether any assault claims should be dismissed on the basis that they were minor or would result only in nominal damages.']

Ratio Decidendi

Summary dismissal was refused because, although the plaintiff's pleadings and particulars were deficient and delay had occurred, the failures were not contumelious, the plaintiff was a litigant in person, the defamation pleading issues were complex, there had been no actual failures to comply with timetables, and the claim was not unmeritorious on its face. In particular, the first defendant's Facebook entry admitted uploading the poster that formed the second matter complained of, making at least some publication issues capable of being properly particularised. The appropriate course was to require substantial repleading, particulars of publication and downloading, and payment of the...

Court Disposition

Defendants' application for summary dismissal refused; several imputations struck out or withdrawn with leave to replead in part; plaintiff ordered to provide a further amended statement of claim with particulars; plaintiff ordered to pay defendants' costs of the application and prior listing forthwith.

Orders

  • ['Imputations 5(a) and 5(e) will go to the jury.' 'Strike out imputation 5(b) with leave to replead on the basis that "sociopath" is not conveyed.' 'Imputation 5(c) is withdrawn.' 'Grant leave to the plaintiff to replead imputation 5(d) to capture the sting of aggression and unpredictability.' 'Imputations 5(f) and...