PENTHOUSE PUBLICATIONS LTD v McWILLIAM [1991] NSWCA 222

PENTHOUSE PUBLICATIONS LTD v McWILLIAM [1991] NSWCA 222

The statement of claim, when interpreted liberally and taking its alleged facts as true, raises arguable causes of action in unsettled areas of tort law (including Beaudesert and conspiracy), and is not so clearly without substance as to justify summary dismissal; the rules require caution and favour allowing matters to go to trial unless plainly hopeless.

Parties
Appellant: Penthouse Publications Ltd; Respondent: McWilliam
Jurisdiction
Australia
Judgment Date
14 March 1991
Procedural Posture
Appeal / Application for Summary Dismissal of Statement of Claim
Outcome
Appeal dismissed, without prejudice to any further proceedings to strike out the Statement of Claim.
Legal Topics
Summary Dismissal, Pleadings, Conspiracy, Beaudesert Principle, Strike Out Application
Tort Law Procedure Summary Dismissal Pleadings Conspiracy Beaudesert Principle Strike Out Application

Case Brief

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Parties

Penthouse Publications Ltd

Appellant

McWilliam

Respondent

Procedural Posture

Appeal / Application for Summary Dismissal of Statement of Claim

Legal Issues

  1. 1 Whether the statement of claim discloses no reasonable cause of action and should be summarily dismissed
  2. 2 Whether claims based on Beaudesert Shire Council v Smith (1966) 120 CLR 145 and conspiracy are so clearly untenable as to justify final dismissal

Ratio Decidendi

The statement of claim, when interpreted liberally and taking its alleged facts as true, raises arguable causes of action in unsettled areas of tort law (including Beaudesert and conspiracy), and is not so clearly without substance as to justify summary dismissal; the rules require caution and favour allowing matters to go to trial unless plainly hopeless.

Court Disposition

Appeal dismissed, without prejudice to any further proceedings to strike out the Statement of Claim.

Orders

  • Appeal dismissed, without prejudice to any further proceedings to strike out the Statement of Claim.
  • Costs of the appeal to be the respondents' costs in the proceedings.