Templar v Britton [2014] NSWSC 187

Templar v Britton [2014] NSWSC 187

Although the plaintiffs had failed to comply adequately with orders made by McCallum J, outright dismissal of the proceedings would be disproportionate because at least part of the defamation claim appeared viable and there had been some attempt to comply with the orders concerning republication. However, the pleaded claims for misleading and deceptive conduct, unconscionable conduct and injurious falsehood were defectively pleaded, including as to loss and damage, and the plaintiffs had failed without satisfactory explanation to comply with the order requiring particulars of those claims. Those parts of the pleading were therefore struck out, further time was allowed for remaining...

Jurisdiction
Australia
Judgment Date
05 March 2014
Procedural Posture
Defamation Proceedings With Pleaded Claims for Misleading and Deceptive Conduct, Unconscionable Conduct and Injurious Falsehood / Interlocutory Application by the Defendants to Dismiss the Proceedings, or Alternatively Strike Out Claims, for Failure to Comply With Court Orders
Outcome
The defendants' application to dismiss the proceedings was refused, but parts of the second further amended statement of claim were struck out; the plaintiffs were ordered to amend, provide particulars, and pay the defendants' costs of the application determined that day.
Legal Topics
['failure to Comply With Court Orders' 'dismissal of Proceedings' 'strike Out of Pleadings' 'particulars' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'injurious Falsehood' 'costs']
['defamation' 'civil Procedure' 'consumer Law' 'torts'] ['failure to Comply With Court Orders' 'dismissal of Proceedings' 'strike Out of Pleadings' 'particulars' 'misleading and Deceptive Conduct' 'unconscionable Conduct' 'injurious Falsehood' 'costs']

Case Brief

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Procedural Posture

Defamation Proceedings With Pleaded Claims for Misleading and Deceptive Conduct, Unconscionable Conduct and Injurious Falsehood / Interlocutory Application by the Defendants to Dismiss the Proceedings, or Alternatively Strike Out Claims, for Failure to Comply With Court Orders

Legal Issues

  1. 1 ['Whether the proceedings should be dismissed under Part 12 r 7 of the Uniform Civil Procedure Rules 2005 or s 61(3) of the Civil Procedure Act 2005 (NSW) because the plaintiffs failed to comply with orders made by McCallum J on 4 December 2013.' "Whether the plaintiffs' claims for misleading and deceptive conduct, unconscionable conduct and injurious falsehood should be struck out because the causes of action were defectively pleaded and the plaintiffs had not satisfactorily complied with orders requiring particulars." 'Whether further time should be allowed for compliance with orders requiring particulars and verification of the pleading.' "Whether the plaintiffs should pay the defendants' costs of the application, and whether those costs should be payable forthwith."]

Ratio Decidendi

Although the plaintiffs had failed to comply adequately with orders made by McCallum J, outright dismissal of the proceedings would be disproportionate because at least part of the defamation claim appeared viable and there had been some attempt to comply with the orders concerning republication. However, the pleaded claims for misleading and deceptive conduct, unconscionable conduct and injurious falsehood were defectively pleaded, including as to loss and damage, and the plaintiffs had failed without satisfactory explanation to comply with the order requiring particulars of those claims. Those parts of the pleading were therefore struck out, further time was allowed for remaining...

Court Disposition

The defendants' application to dismiss the proceedings was refused, but parts of the second further amended statement of claim were struck out; the plaintiffs were ordered to amend, provide particulars, and pay the defendants' costs of the application determined that day.

Orders

  • ['Paragraphs 14 to 20 and the claim for the particulars of exemplary damages in paragraph 21 of the second further amended statement of claim be struck out.' 'The plaintiffs file and serve a third further amended statement of claim consistent with order 1 and verified by them within 21 days.' 'The time for...