Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232

Gayed v Virgin Mary & St Markorious Coptic Orthodox Church [2024] NSWSC 1232

Substantial (not strict) compliance with s 12A and s 12B of the Defamation Act 2005 (NSW) suffices for commencement of proceedings; the Concerns Notice here satisfied the requirements by conveying the imputations and particulars of serious harm. The existence of intra-church disputes does not amount to abuse of process. The irregular naming of unincorporated bodies as defendants may be corrected by substitution of those in control under Civil Procedure Act s 65, and is not a nullity. Summary dismissal is therefore refused and leave to amend granted.

Parties
Plaintiff: Wafaie (Ray) Gayed; Second Defendant: Father Alexander Aziz
Jurisdiction
Australia
Judgment Date
01 October 2024
Procedural Posture
Defamation / Rulings on Summary Dismissal and Amendment Motions
Outcome
Defendants' motion for summary dismissal and striking out dismissed; Plaintiff granted leave to file Second Further Amended Statement of Claim; Defendants to pay costs of the motion
Legal Topics
Concerns Notice, Summary Dismissal, Party Amendment, Unincorporated Associations, Serious Harm Element, Limitation Period
Defamation Civil Procedure Concerns Notice Summary Dismissal Party Amendment Unincorporated Associations Serious Harm Element Limitation Period

Case Brief

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Parties

Wafaie (Ray) Gayed

Plaintiff

Father Alexander Aziz

Second Defendant

Procedural Posture

Defamation / Rulings on Summary Dismissal and Amendment Motions

Legal Issues

  1. 1 Whether the Concerns Notice served complies with s 12A and s 12B of the Defamation Act 2005 (NSW) and operates as a valid precondition to suit
  2. 2 Whether the proceedings are a nullity or incompetent due to non-compliance with the Concerns Notice provisions
  3. 3 If the claim should be summarily dismissed as an abuse of process

Ratio Decidendi

Substantial (not strict) compliance with s 12A and s 12B of the Defamation Act 2005 (NSW) suffices for commencement of proceedings; the Concerns Notice here satisfied the requirements by conveying the imputations and particulars of serious harm. The existence of intra-church disputes does not amount to abuse of process. The irregular naming of unincorporated bodies as defendants may be corrected by substitution of those in control under Civil Procedure Act s 65, and is not a nullity. Summary dismissal is therefore refused and leave to amend granted.

Court Disposition

Defendants' motion for summary dismissal and striking out dismissed; Plaintiff granted leave to file Second Further Amended Statement of Claim; Defendants to pay costs of the motion

Orders

  • Defendants' motion for summary dismissal and for striking out pleadings is dismissed
  • Plaintiff's motion for leave to file a Second Further Amended Statement of Claim is granted