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District Court 18 November 2015

Elzahed v Commonwealth of Australia

[2015] NSWDC 271

Other
TORT

Citation: Elzahed v Commonwealth of Australia [2015] NSWDC 271
Court: District Court of New South Wales
Date: 18 November 2015
Judge: Gibson DCJ

Background

Four plaintiffs, a married couple and their two teenage sons, commenced proceedings in October 2014 against the Commonwealth of Australia and the State of New South Wales. They alleged that on 18 September 2014, police officers entered their home, handcuffed them, searched the premises, and caused property damage. The claims included assault, wrongful arrest, false imprisonment, and defamation.

The defamation claim concerned two sets of alleged statements made by police during the raid. The female plaintiff claimed police called her a "bitch" on multiple occasions. The two minor plaintiffs alleged police said of them words to the effect that "they are terrorists." The imputations pleaded were that the female plaintiff was an unpleasant woman, and that the two boys were terrorists and a danger to the Australian public.

Throughout the proceedings, the assault, wrongful arrest, and false imprisonment claims progressed without significant difficulty. The defamation claim, however, became mired in repeated failures to comply with court timetables, including failures to answer requests for particulars of both the Statement of Claim and the Reply.

  • Whether the show cause hearing should be adjourned due to the unavailability of the plaintiffs' preferred counsel
  • Whether the defamation claim should be dismissed under ss 60 and 61 of the Civil Procedure Act 2005 (NSW) and r 12.7 of the Uniform Civil Procedure Rules 2005 (NSW) for failure to comply with court directions
  • Whether the defamation claim constituted an abuse of process on proportionality grounds, in the sense that the resources required to litigate it were disproportionate to any benefit the plaintiffs stood to gain

Decision

Gibson DCJ refused the adjournment application. The plaintiffs were already in default, and an application to adjourn proceedings in those circumstances is a matter of some seriousness. The unavailability of preferred counsel did not justify further delay in circumstances where the show cause hearing itself had been listed precisely because of the plaintiffs' prior non-compliance.

The court found a pattern of repeated failures to comply with timetables spanning the period from February to November 2015. These included multiple missed deadlines for answering requests for particulars of the Statement of Claim, persistent failure to answer particulars of the Reply, and failure to engage with the defendants' correspondence on discovery. Particulars were eventually provided only on the day before the hearing, and the court found them manifestly inadequate and incapable of properly particularising malice.

On the proportionality question, Gibson DCJ applied the principles from Bleyer v Google Inc [2014] NSWSC 897 and Ghosh v NineMSN Pty Ltd [2015] NSWCA 334. The court noted that the alleged defamatory words overlapped substantially with the circumstances already covered by the assault, wrongful arrest, and false imprisonment claims. Any additional damages recoverable through the defamation claim would therefore be minimal. The court concluded that continuing to litigate a complex, poorly pleaded defamation claim would consume resources wholly out of proportion to any benefit, and that striking it out was in fact to the plaintiffs' benefit, freeing them to proceed promptly to a hearing on their remaining claims.

The defamation claim brought by the first, third, and fourth plaintiffs was struck out and dismissed. The remaining claims for assault, wrongful arrest, and false imprisonment were transferred to the Case Managed List to proceed to a hearing date.

Orders Made

  • The first, third, and fourth plaintiffs' defamation claim (paragraphs 3 to 6 and 10 to 12 of the Statement of Claim) was struck out and dismissed pursuant to ss 60 and 61 of the Civil Procedure Act 2005 (NSW) and r 12.7 UCPR.
  • The first, third, and fourth plaintiffs were ordered to pay the defendants' costs of the application and of the defamation proceedings.
  • All plaintiffs were granted leave to file an amended Statement of Claim within seven days, deleting the defamation claims and making any consequential amendments to the remaining claims.
  • The proceedings were transferred from the Defamation List to the Case Managed List and listed before the Judicial Registrar on 30 November 2015, at which point the parties were to be ready to obtain a hearing date for the assault, wrongful arrest, and false imprisonment claims.

Key Takeaways

  • The District Court confirmed that an application to adjourn a show cause hearing carries particular weight against a party already in default, and unavailability of preferred counsel does not automatically warrant further delay.
  • Under ss 60 and 61 of the Civil Procedure Act 2005 (NSW) and r 12.7 UCPR, a claim may be struck out where a party's repeated failure to comply with court directions, combined with the disproportionate cost and complexity of continuing, renders the litigation an abuse of process.
  • Proportionality principles drawn from Bleyer v Google Inc and Ghosh v NineMSN Pty Ltd were applied to dismiss a defamation claim, even in circumstances where the claim was not brought solely for improper purposes, because the resources required to determine it were grossly disproportionate to any realistic benefit.
  • Where a defamation claim arises from the same events as other pleaded torts, a substantial overlap of causes of action and damages weighs in favour of finding that the defamation proceedings add unnecessary complexity rather than real forensic value.
  • Striking out a defamation claim does not necessarily prejudice a plaintiff: in this case, the court observed that the remaining tort claims were ready for hearing and could proceed promptly once the defamation "clutter" was removed.

Legislation and Cases Referenced

Legislation
- Civil Procedure Act 2005 (NSW), ss 56, 57, 58, 60, 61, 66, 67
- Uniform Civil Procedure Rules 2005 (NSW), rr 12.7, 15.12, 15.13
- District Court Rules 1973 (NSW), r 18.3

Cases
- Bleyer v Google Inc [2014] NSWSC 897
- Ghosh v NineMSN Pty Ltd [2015] NSWCA 334
- Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
- Coren v Master Builders Association of New South Wales Pty Ltd [2014] NSWCA 244
- Jameel (Yousef) v Dow Jones & Co Inc [2005] All ER (D) 43 (Feb)
- Karabay v Carr [2014] NSWCA 143
- Aon Risk Services Australia Ltd v Australian National University (2009) 239 CLR 175
- Kang v Australian Broadcasting Corporation [2015] NSWSC 893
- Bi v Mourad [2010] NSWCA 17
- Echo Publications Pty Ltd v Tucker and Anor; Fast Buck$ v Tucker and Anor [2007] NSWCA 73