Time for Monkeys Enterprises Pty Ltd v Southern Cross Austereo Pty Ltd [2015] NSWDC 13

Time for Monkeys Enterprises Pty Ltd v Southern Cross Austereo Pty Ltd [2015] NSWDC 13

The proceedings were dismissed because the plaintiff corporation admitted, by failure to dispute a Notice to Admit Facts and in correspondence, that it employed 10 persons at the time of publication and therefore was not an excluded corporation with capacity to sue for defamation under s 9 Defamation Act 2005 (NSW)....

Source-derived case information.

Jurisdiction
Australia
Judgment Date
19 February 2015
Procedural Posture
Defamation Proceedings / Defendants' Application for Summary Dismissal
Outcome
Proceedings dismissed; plaintiff ordered to pay defendants' costs; Mr Trent Malcolm Bourne jointly liable for the costs.
Legal Topics
['corporate Capacity to Sue for Defamation' 'excluded Corporation' 'summary Dismissal' 'defective Pleadings' 'authority of Director to Represent Company' 'dishonoured Filing Fee' 'non Party Costs Order Against Director']
['tort' 'defamation' 'civil Procedure' 'costs'] ['corporate Capacity to Sue for Defamation' 'excluded Corporation' 'summary Dismissal' 'defective Pleadings' 'authority of Director to Represent Company' 'dishonoured Filing Fee' 'non Party Costs Order Against Director']

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Procedural Posture

Defamation Proceedings / Defendants' Application for Summary Dismissal

Legal Issues

  1. 1 ['Whether the plaintiff corporation had a cause of action for defamation under s 9 Defamation Act 2005 (NSW).' 'Whether the statement of claim should be dismissed or struck out for inadequate pleading and failure to plead the matter complained of and imputations.' 'Whether the failure to file affidavit material under UCPR r 7.2 affected the conduct of the proceedings.' "Whether the plaintiff's conduct, including a dishonoured filing fee and an unserved default judgment application, warranted dismissal and costs orders." 'Whether Mr Trent Malcolm Bourne should be jointly liable for costs under s 98 Civil Procedure Act 2005 (NSW).']

Ratio Decidendi

The proceedings were dismissed because the plaintiff corporation admitted, by failure to dispute a Notice to Admit Facts and in correspondence, that it employed 10 persons at the time of publication and therefore was not an excluded corporation with capacity to sue for defamation under s 9 Defamation Act 2005 (NSW). The court also found substantial pleading defects, non-compliance with UCPR r 7.2, non-payment of the filing fee due to a dishonoured cheque, and improper litigation conduct, which supported dismissal and costs orders. Mr Bourne was made jointly liable for costs because he was on notice that the proceedings were hopeless and was involved in the conduct complained of.

Court Disposition

Proceedings dismissed; plaintiff ordered to pay defendants' costs; Mr Trent Malcolm Bourne jointly liable for the costs.

Orders

  • ['Plaintiff called three times at 2:10pm – no appearance.' 'Plaintiff called a second time three times at 2:35pm – no appearance.' 'Grant leave to the defendant to file in court the Affidavit of Natalie Buck affirmed on 16 February 2015 and the Affidavit of Natalie Buck affirmed on 19 February 2015.' 'Pursuant to r...