Elliott v Tomkins [2014] NSWDC 55

Elliott v Tomkins [2014] NSWDC 55

The plaintiff was not entitled to strike out the defence and obtain summary judgment because the defendant's draft justification defence, though poorly drafted, was sufficiently particularised to survive summary judgment, while the plaintiff's statement of claim itself was deficient because it failed adequately to plead identification and publication for the Internet publications. The appropriate course was to require the plaintiff to amend and particularise the claim and then permit the defendant to file a defence.

Jurisdiction
Australia
Judgment Date
28 February 2014
Procedural Posture
Civil Defamation Proceedings / Interlocutory Application by Plaintiff to Strike Out Defence Under R 14.28 Uniform Civil Procedure Rules 2005 (nsw), Enter Summary Judgment and List the Matter for Assessment of Damages; Defendant Sought Particulars of Identification and Publication
Outcome
Plaintiff's application for summary judgment and to strike out the defence was dismissed; directions were made for amended pleadings, particulars, further directions and reserved costs.
Legal Topics
['internet Publications' 'identification' 'publication' 'justification Defence' 'strike Out of Pleadings' 'summary Judgment' 'particulars' 'forum']
['tort' 'defamation' 'civil Procedure'] ['internet Publications' 'identification' 'publication' 'justification Defence' 'strike Out of Pleadings' 'summary Judgment' 'particulars' 'forum']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Interlocutory Application by Plaintiff to Strike Out Defence Under R 14.28 Uniform Civil Procedure Rules 2005 (nsw), Enter Summary Judgment and List the Matter for Assessment of Damages; Defendant Sought Particulars of Identification and Publication

Legal Issues

  1. 1 ["Whether the defendant's deficient defence should be struck out and summary judgment entered for the plaintiff." "Whether the plaintiff's statement of claim adequately pleaded identification and publication for Internet defamation matters." 'Whether the defendant should be given an opportunity to file an amended defence after the plaintiff provides proper particulars.' 'Whether the proceedings may raise forum issues given the pleaded connection with Queensland, Western Australia and New South Wales.']

Ratio Decidendi

The plaintiff was not entitled to strike out the defence and obtain summary judgment because the defendant's draft justification defence, though poorly drafted, was sufficiently particularised to survive summary judgment, while the plaintiff's statement of claim itself was deficient because it failed adequately to plead identification and publication for the Internet publications. The appropriate course was to require the plaintiff to amend and particularise the claim and then permit the defendant to file a defence.

Court Disposition

Plaintiff's application for summary judgment and to strike out the defence was dismissed; directions were made for amended pleadings, particulars, further directions and reserved costs.

Orders

  • ['Dismiss the application of the plaintiff to strike out the defence in these proceedings pursuant to r 14.28 Uniform Civil Procedure Rules 2005 (NSW) and have summary judgment entered.' 'Direct the plaintiff to file and serve an amended statement of claim in 14 days.' 'On or before 14 March 2014, the plaintiff...