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[2009] NSWDC 131
District Court of NSW
2009-06-12
Bainton J, Hunt J
Original judgment source is linked above.
The application originally brought by the defendant was for summary judgment on the basis that the publication was protected by absolute privilege. That argument was not proceeded with. The argument that the proceedings are an abuse of process has failed. Contrary to the defendant's submissions, the delay in commencing proceedings is not unexplained. The plaintiff had no idea that the defendant had made the accusations about him referred to in the matter complained of until after the expiry of the limitation period and proceedings were commenced promptly as soon as he did become aware.
The defendant failed to comply with orders for the filing of written submissions and was ordered to pay the costs occasioned by the matter not proceeding for argument on 1 May 2009.
Given the plaintiff's success on the absolute privilege and abuse of process arguments, and the fact that the limitations argument occupied very little time in these proceedings, it is appropriate that the defendant pay the plaintiff's costs of all these applications.
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Bechara
Bonacorso
CITATION: Bechara v Bonacorso [2009] NSWDC 131
Ainsworth v Burden (2003) 56 NSWLR 620 Ainsworth v Burden [1999] NSWSC 793 Ampolex Ltd v Perpetual Trustee Company (Canberra) Ltd (1995) 13 ACLC 1611 Australian Competition and Consumer Commission v INFO4PC.COM Pty Ltd [2001] FCA 258 Capital Television Group Ltd v Northern Rivers Television Pty Ltd (Bainton J, 4 September 1995) Crest Homes plc v Marks [1987] AC 829; [1987] 2 All ER 1074; [1987] 3 WLR 293 Eltran Pty Ltd v Westpac Banking Corp (1990) 25 FCR 322; 98 ALR 141 Halcon International Inc v Shell Transport & Trading Co Ltd [1979] RPC 459 CASES CITED: Harman v Secretary of State for Home Department [1983] 1 AC 280 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 29 FCR 576; (1991) 103 ALR 684 Lassanah v State of New South Wales [2009] NSWDC 73 Mann v Medical Defence Union Ltd [1997] FCA 45 Miller v R L Polk & Co (Australia) Pty Ltd (New South Wales Court of Appeal, 29 July 1985, unreported). Miller v R L Polk & Co (Australia) Pty Ltd (Supreme Court of NSW, Hunt J, 4 July 1985, unreported) Moses v State of New South Wales [2009] NSWDC 74 Riddick v Thames Board Mills Ltd [1977] QB 881 Spalla v St George Motor Finance Ltd (2004) 209 ALR 703; [2004] FCA 1014 Tame v New South Wales [2002] HCA 35
(c) There is no connection between the Local Court proceedings brought by Mr Cantali against the plaintiff and this lack of connection has resulted in a stay of proceedings in other cases: Mann v Medical Defence Union Ltd [1997] FCA 45 at [11]. 3. When the matter was first listed for argument, the plaintiff had not yet made an application to the Local Court to be released from the implied undertaking. That application has since been made and neither the Local Court nor the NSW Police Service has any objection to the use of the documents. I have granted leave to the plaintiff to file a further affidavit by 4 pm today providing copies of the relevant correspondence and the parties have agreed that I should hand down my judgment by email after receipt of that affidavit, the contents of which are not objected to by the defendant.
(2003) 56 NSWLR 620
(1990) 25 FCR 322
(1991) 29 FCR 576
(1991) 103 ALR 684
(2004) 209 ALR 703
(1997) 191 CLR 204