Massarani v Kriz [2020] NSWDC 26

Massarani v Kriz [2020] NSWDC 26

The claims against the first and sixth defendants were struck out and dismissed because the current pleading remained untenable after multiple attempts, failed to plead and particularise essential elements of publication and identification, included a Facebook publication for which there were no particulars of downloading, and sought to maintain residual archived and limited slander claims whose likely value was very low. In combination with the history of defective pleadings and the need for further interlocutory disputes, the legal costs and court resources required to determine the claims would be out of all proportion to the interest at stake, making this an exceptional case for...

Jurisdiction
Australia
Judgment Date
26 February 2020
Procedural Posture
Civil Defamation Proceedings / Interlocutory Applications by the First and Sixth Defendants for Summary Dismissal and Strike Out; Plaintiff Sought Leave to Replead
Outcome
Applications for dismissal granted; claims against the first and sixth defendants struck out and dismissed; leave to replead refused; summons struck out; costs reserved.
Legal Topics
['summary Dismissal' 'strike Out' 'abuse of Process' 'proportionality' 'leave to Replead' 'publication' 'identification' 'online Archive Publication' 'slander']
['tort' 'defamation' 'civil Procedure'] ['summary Dismissal' 'strike Out' 'abuse of Process' 'proportionality' 'leave to Replead' 'publication' 'identification' 'online Archive Publication' 'slander']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Interlocutory Applications by the First and Sixth Defendants for Summary Dismissal and Strike Out; Plaintiff Sought Leave to Replead

Legal Issues

  1. 1 ['Whether the defamation claims against the first and sixth defendants should be struck out and dismissed under rr 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) because the pleadings failed to identify essential elements of the causes of action.' 'Whether the proceedings should be dismissed under UCPR r 12.7 and ss 60, 61 and 67 of the Civil Procedure Act 2005 (NSW) as an abuse of process because the legal costs and court resources required would be out of proportion to the interest at stake.' 'Whether the plaintiff should be granted further leave to replead.' 'Whether the claims were so weak, including because of deficiencies in publication and identification, as to warrant summary dismissal.' 'Whether the Facebook publication claim should be struck out for absence of evidence of publication to a third party.']

Ratio Decidendi

The claims against the first and sixth defendants were struck out and dismissed because the current pleading remained untenable after multiple attempts, failed to plead and particularise essential elements of publication and identification, included a Facebook publication for which there were no particulars of downloading, and sought to maintain residual archived and limited slander claims whose likely value was very low. In combination with the history of defective pleadings and the need for further interlocutory disputes, the legal costs and court resources required to determine the claims would be out of all proportion to the interest at stake, making this an exceptional case for...

Court Disposition

Applications for dismissal granted; claims against the first and sixth defendants struck out and dismissed; leave to replead refused; summons struck out; costs reserved.

Orders

  • ['Pursuant to rr 12.7, 13.4(1)(b) and 14.28 of the Uniform Civil Procedure Rules 2005 (NSW) and ss 60, 61 and 67 Civil Procedure Act 2005 (NSW), the claims against the first defendant and the sixth defendant set out in paragraphs 7 and 9 (the first matter complained of) and paragraphs 10, 12 and 13 (the second...