POLLACK v HARRIS [2001] NSWSC 852

POLLACK v HARRIS [2001] NSWSC 852

The first count concerned the same matter as the earlier District Court proceedings against the Defendant and should be stayed until the Plaintiff paid the assessed District Court costs of $2,476.85. The Defendant did not establish that the proceedings should be stayed or dismissed for collateral purpose. The first count pleaded the alleged words with reasonable certainty and did not omit shown material that altered their sense. The asserted absolute privilege for the second and third counts could not be resolved so clearly in the Defendant's favour on the motion. However, the only remaining imputation for the second and third counts was incapable of arising because the statement that the...

Jurisdiction
Australia
Judgment Date
28 September 2001
Procedural Posture
Defamation Proceedings / Defendant's Notice of Motion to Strike Out, Dismiss or Stay Proceedings and for Related Relief
Outcome
Defendant's Notice of Motion filed on 8 March 2001 partly granted.
Legal Topics
['strike Out' 'abuse of Process' 'stay for Non Payment of Costs' 'absolute Privilege' 'defamatory Imputations' 'costs Assessment']
['defamation' 'civil Procedure' 'costs'] ['strike Out' 'abuse of Process' 'stay for Non Payment of Costs' 'absolute Privilege' 'defamatory Imputations' 'costs Assessment']

Case Brief

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Procedural Posture

Defamation Proceedings / Defendant's Notice of Motion to Strike Out, Dismiss or Stay Proceedings and for Related Relief

Legal Issues

  1. 1 ['Whether the first count should be struck out or stayed as an abuse of process or for non-payment of costs in earlier proceedings.' 'Whether the first count failed to identify properly the matter complained of.' 'Whether the second and third counts should be struck out or stayed as an abuse of process.' 'Whether the publications the subject of the second and third counts were made on occasions of absolute privilege.' 'Whether the pleaded imputation in the second and third counts was capable of arising from the publications complained of.' 'Whether the proceedings should be dismissed under Part 13 Rule 5 or otherwise.']

Ratio Decidendi

The first count concerned the same matter as the earlier District Court proceedings against the Defendant and should be stayed until the Plaintiff paid the assessed District Court costs of $2,476.85. The Defendant did not establish that the proceedings should be stayed or dismissed for collateral purpose. The first count pleaded the alleged words with reasonable certainty and did not omit shown material that altered their sense. The asserted absolute privilege for the second and third counts could not be resolved so clearly in the Defendant's favour on the motion. However, the only remaining imputation for the second and third counts was incapable of arising because the statement that the...

Court Disposition

Defendant's Notice of Motion filed on 8 March 2001 partly granted.

Orders

  • ['Stay further proceedings in respect of the first count (paragraphs 1,2, 7 and 8) in the Statement of Claim until the Plaintiff pays the Defendant the sum of $2,476.85, being the amount of costs assessed in District Court proceedings 9053/99.' 'Strike out counts 2 and 3 (paragraphs 3 – 6) of the Statement of...