WARNE v MOSS & ORS [2003] NSWSC 271

WARNE v MOSS & ORS [2003] NSWSC 271

The plaintiff was granted leave to file an amended statement of claim in accordance with the reasons because most challenged imputations were proper in form, capable of being carried and capable of being defamatory, but the immaterial averments in paragraph 1 were to be omitted, imputation 4(e) was struck out as not differing in substance from imputation 4(d), and the proposed republication pleading in paragraph 7 was embarrassing because it used 'substantially' and did not precisely identify what was republished or the basis of liability. The aggravated damages particulars were allowed to remain, subject to any later request for further particulars.

Jurisdiction
Australia
Judgment Date
09 April 2003
Procedural Posture
Defamation Proceeding / Application Concerning a Proposed Amended Statement of Claim and Pleading Objections
Outcome
Leave granted to file an amended statement of claim within 14 days in accordance with the reasons; plaintiff to pay costs occasioned by the amendments; each side to pay own costs of the notional motion.
Legal Topics
['immaterial Averment' 'imputations' 'capacity to Carry Defamatory Meanings' 'republication' 'particulars of Aggravated Damages' 'costs']
['defamation' 'civil Procedure'] ['immaterial Averment' 'imputations' 'capacity to Carry Defamatory Meanings' 'republication' 'particulars of Aggravated Damages' 'costs']

Case Brief

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Procedural Posture

Defamation Proceeding / Application Concerning a Proposed Amended Statement of Claim and Pleading Objections

Legal Issues

  1. 1 ['Whether paragraph 1 of the proposed amended statement of claim contained immaterial averments that should be deleted.' 'Whether proposed imputations 4(a), 4(b), 4(d), 4(e) and 4(f) were proper in form, capable of being carried by the matter complained of and capable of being defamatory.' 'Whether the proposed pleading of republication in paragraph 7 was embarrassing or insufficiently precise.' 'Whether particulars (ii) and (iii) of aggravated damages should remain on the record.' 'What costs orders should be made on the application.']

Ratio Decidendi

The plaintiff was granted leave to file an amended statement of claim in accordance with the reasons because most challenged imputations were proper in form, capable of being carried and capable of being defamatory, but the immaterial averments in paragraph 1 were to be omitted, imputation 4(e) was struck out as not differing in substance from imputation 4(d), and the proposed republication pleading in paragraph 7 was embarrassing because it used 'substantially' and did not precisely identify what was republished or the basis of liability. The aggravated damages particulars were allowed to remain, subject to any later request for further particulars.

Court Disposition

Leave granted to file an amended statement of claim within 14 days in accordance with the reasons; plaintiff to pay costs occasioned by the amendments; each side to pay own costs of the notional motion.

Orders

  • ['The plaintiff has leave to file an amended statement of claim within 14 days in accordance with these reasons.' "The plaintiff is to pay the defendants' costs occasioned by the amendments." 'Each side is to pay his and their own costs of the notional motion heard on 6 November 2002.' "The matter is to be listed in...