Munsie v Dowling (No. 7) [2015] NSWSC 1832

Munsie v Dowling (No. 7) [2015] NSWSC 1832

The Defendant's Defences filed 31 March 2015 and 24 July 2015 did not comply with the UCPR or proper pleading practice, failed to identify material facts and particulars for the asserted defamation defences, improperly included evidence and extracts from documents, relied on reasons for judgment contrary to s 91 of the Evidence Act 1995 (NSW), and contained irrelevant and scandalous material. Because the Defendant had already been given leave after an earlier strike-out application and had not heeded the Court's directions, and because he would likely use any further pleading opportunity to make further defamatory and scandalous allegations, leave to re-plead was refused.

Jurisdiction
Australia
Judgment Date
04 December 2015
Procedural Posture
Defamation Proceedings / Plaintiffs' Notice of Motion to Strike Out the Defendant's Defences; Defendant's Oral Applications for Recusal, Transfer to the Federal Court, Discovery and Interrogatories, and Dismissal
Outcome
Plaintiffs' motion granted; Defendant's oral applications for recusal, transfer to the Federal Court, discovery and interrogatories, and dismissal were refused.
Legal Topics
['strike Out of Defence' 'pleading Defences in Defamation Proceedings' 'unrepresented Litigant' 'justification' 'contextual Truth' 'qualified Privilege' 'honest Opinion' 'triviality' 'recusal for Apprehended Bias' 'transfer to Federal Court' 'discovery and Interrogatories' 'evidence Act S 91']
['defamation' 'civil Procedure' 'evidence'] ['strike Out of Defence' 'pleading Defences in Defamation Proceedings' 'unrepresented Litigant' 'justification' 'contextual Truth' 'qualified Privilege' 'honest Opinion' 'triviality' 'recusal for Apprehended Bias' 'transfer to Federal Court' 'discovery and Interrogatories' 'evidence Act S 91']

Case Brief

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Procedural Posture

Defamation Proceedings / Plaintiffs' Notice of Motion to Strike Out the Defendant's Defences; Defendant's Oral Applications for Recusal, Transfer to the Federal Court, Discovery and Interrogatories, and Dismissal

Legal Issues

  1. 1 ['Whether the Defences filed by the Defendant on 31 March 2015 and 24 July 2015 should be struck out because no reasonable defence was disclosed or because they had a tendency to cause prejudice, embarrassment or delay in the proceeding.' 'Whether the Defendant should be granted leave to re-plead if the defences were struck out.' 'Whether Davies J should recuse himself for bias arising from having granted an ex parte injunction and from allegations made by the Defendant.' 'Whether the proceedings should be transferred to the Federal Court under cross-vesting legislation.' 'Whether discovery and interrogatories should be ordered before proper pleadings had closed.' 'Whether the proceedings should be dismissed as an abuse of process or for alleged failure to prosecute.']

Ratio Decidendi

The Defendant's Defences filed 31 March 2015 and 24 July 2015 did not comply with the UCPR or proper pleading practice, failed to identify material facts and particulars for the asserted defamation defences, improperly included evidence and extracts from documents, relied on reasons for judgment contrary to s 91 of the Evidence Act 1995 (NSW), and contained irrelevant and scandalous material. Because the Defendant had already been given leave after an earlier strike-out application and had not heeded the Court's directions, and because he would likely use any further pleading opportunity to make further defamatory and scandalous allegations, leave to re-plead was refused.

Court Disposition

Plaintiffs' motion granted; Defendant's oral applications for recusal, transfer to the Federal Court, discovery and interrogatories, and dismissal were refused.

Orders

  • ['The Defences filed by the Defendant on 31 March 2015 and 24 July 2015 are struck out.' 'Leave is refused to the Defendant to re-plead.' 'Direct the parties to approach the Listing Manager for a final hearing on the basis of a two day hearing.' "The Defendant should pay the Plaintiffs' costs of the Motion."]