MARKISIC v TODAY DENES & ORS

By Notice of Motion filed on 26 August 2002 the plaintiff (who is unrepresented) seeks various orders in relation to striking out defences filed on behalf of the second, third, fourth, fifth and fifteenth defendants; the entry of default judgment against other defendants and orders, which I take to be provoked by the enactment of the Civil Liability Act 2002 which was assented to on 18 June 2002 with a retrospective commencement date of 20 March 2002.

The structure of the plaintiff’s action against the defendants still on the record has been examined on several occasions: Kirby J, 7 July 2000; Levine J, 13 October 2000; Kirby J, 22 April 2002 [2002] NSWSC 308; Levine J, 7 August 2002. On the last mentioned date, having dealt with the capacity argument, favourably to the plaintiff, I made the usual orders for this matter to be set down for a s7A jury trial.

As I understand it, the plaintiff’s present motion precluded that step being taken recently.

With respect to the applications for summary judgment against the defendants other than the second, third, fourth, fifth and fifteenth, I decline to make any such order. I have not been assisted by any evidence that would elucidate orders made, orders served, default and the like. Furthermore, there are difficulties with the notion of default judgment against defendants in defamation actions: in respect of defamation actions before 1995 see Alterama v Forsyth & Ors [1981] 1 NSWLR 188 and since 1995, Nikolopoulous & Ors v Greek Herald Pty Ltd & Ors , 11 September 2002, [2002] NSWSC 808.

With respect to the plaintiff’s application to have struck out the defences filed by the specific defendants to whom I have referred, I decline to do so. Those defences, filed pursuant to the orders I made on 7 August 2002, in each case, raise in a proper way, issues that can be perceived to be bona fide for the determination of the jury in its limited role under s7A of the Defamation Act 1974.

The remaining application appears to be founded upon amendments made to the Legal Profession Act 1987 by the Civil Liability Act 2002 and particularly in relation to s198L of the former, which makes provision for certification that there are reasonable grounds for believing on the basis of provable facts and a reasonably arguable view of the law, that a defence has reasonable prospects of success. Leaving to one side any question of whether the amendments upon which the plaintiff purports to rely are applicable to defamation actions, I have not been persuaded that s198L(2) and (3) apply in respect of these proceedings which were, of course instituted prior to the commencement date of the Civil Liability Act .

I dismiss the plaintiff’s Notice of Motion with costs.

I place the matter in the list for call up for a fixing of a date for trial by jury pursuant to s7A of the Defamation Act . Otherwise, the orders I made on 7 August 2002 still apply in relation to orders 3 and 6.