Kelly v Burston (No.2) [2021] NSWDC 794

Kelly v Burston (No.2) [2021] NSWDC 794

The Further Amended Statement of Claim was struck out because it pleaded imputations for all members of a group rather than the plaintiff, impermissibly pleaded guilt imputations in a group libel context, failed to provide proper particulars of identification and innuendo, and included malice and possible special damage material in an improper and insufficiently particularised form. Leave to replead was granted because summary dismissal was not appropriate at this stage, particularly given the late challenge to the pleadings and the plaintiff's status as a litigant in person.

Jurisdiction
Australia
Judgment Date
16 September 2021
Procedural Posture
Civil Defamation Proceedings / Defendant's Application to Strike Out the Further Amended Statement of Claim
Outcome
Further Amended Statement of Claim struck out with leave to replead; defendant's application otherwise not resolved by summary dismissal.
Legal Topics
['strike Out Application' 'defamation Pleadings' 'group Libel' 'imputations' 'identification Particulars' 'innuendo' 'malice' 'special Damage']
['tort' 'defamation' 'civil Procedure'] ['strike Out Application' 'defamation Pleadings' 'group Libel' 'imputations' 'identification Particulars' 'innuendo' 'malice' 'special Damage']

Case Brief

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Procedural Posture

Civil Defamation Proceedings / Defendant's Application to Strike Out the Further Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the Further Amended Statement of Claim should be struck out for deficient pleading of imputations in a group libel case.' 'Whether the plaintiff had properly pleaded identification and innuendo particulars.' 'Whether material concerning malice belonged in the statement of claim or in a reply.' 'Whether leave to replead should be granted rather than summary dismissal.']

Ratio Decidendi

The Further Amended Statement of Claim was struck out because it pleaded imputations for all members of a group rather than the plaintiff, impermissibly pleaded guilt imputations in a group libel context, failed to provide proper particulars of identification and innuendo, and included malice and possible special damage material in an improper and insufficiently particularised form. Leave to replead was granted because summary dismissal was not appropriate at this stage, particularly given the late challenge to the pleadings and the plaintiff's status as a litigant in person.

Court Disposition

Further Amended Statement of Claim struck out with leave to replead; defendant's application otherwise not resolved by summary dismissal.

Orders

  • ['The document headed "Further Amended Statement of Claim" date 21 April 2021 is struck out with leave to replead.' 'The plaintiff is to file within 21 days an Amended Statement of Claim giving proper particulars of identification, pleading imputations appropriate for a group libel including any pleading of...