Elliott v Tomkins (No. 2) [2014] NSWDC 56

Elliott v Tomkins (No. 2) [2014] NSWDC 56

Despite the plaintiff's ongoing failure to properly particularise publication and identification as required in pleadings for a defamation action, the appropriate course is to allow a final extension of time to amend the statement of claim, conditional upon the plaintiff paying the defendant's costs to date on an indemnity basis, given the repeated breaches of procedural obligations.

Parties
Plaintiff: David Dean Elliott; Defendant: Kevin Tomkins
Jurisdiction
Australia
Judgment Date
09 April 2014
Procedural Posture
Interlocutory Applications / Application for Extension of Time to File Amended Statement of Claim and Opposition to Summary Dismissal
Outcome
Extension of time for filing further amended statement of claim granted on condition; notice of motion stood over; indemnity costs ordered.
Legal Topics
Pleadings in Defamation, Particulars of Publication and Identification, Amendment of Statement of Claim, Summary Dismissal, Indemnity Costs
Tort Defamation Pleadings in Defamation Particulars of Publication and Identification Amendment of Statement of Claim Summary Dismissal Indemnity Costs

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Parties

David Dean Elliott

Plaintiff

Kevin Tomkins

Defendant

Procedural Posture

Interlocutory Applications / Application for Extension of Time to File Amended Statement of Claim and Opposition to Summary Dismissal

Legal Issues

  1. 1 Whether to grant extension of time to file further amended statement of claim
  2. 2 Whether the statement of claim should be struck out or summarily dismissed for lack of proper particulars
  3. 3 Whether indemnity costs should be ordered against the plaintiff

Ratio Decidendi

Despite the plaintiff's ongoing failure to properly particularise publication and identification as required in pleadings for a defamation action, the appropriate course is to allow a final extension of time to amend the statement of claim, conditional upon the plaintiff paying the defendant's costs to date on an indemnity basis, given the repeated breaches of procedural obligations.

Court Disposition

Extension of time for filing further amended statement of claim granted on condition; notice of motion stood over; indemnity costs ordered.

Orders

  • Extend the time for the filing of a Further Amended Statement of Claim to Wednesday 14 May 2014 conditional upon the plaintiff paying the defendant's costs of and incidental to 28 February 2014, 28 March 2014 and today on an indemnity basis, assessable forthwith.
  • Order (1) is self-executing in nature.