McGinn v Peter Clisdell Pty Ltd (No 2) [2018] NSWSC 1856

McGinn v Peter Clisdell Pty Ltd (No 2) [2018] NSWSC 1856

The amended statement of claim was struck out because it contained multiple pleading defects: it included irrelevant history, did not plead facts, matters and circumstances sufficient to connect some defendants with publication of documents appearing under other names, impermissibly intermingled imputations with extracts of the matters complained of, included embarrassing allegations and propositions of law, and contained unclear or otherwise defective allegations concerning republication, aggravated damages and damages. Leave to re-plead was granted because the plaintiff wished to re-plead and the defendants did not oppose that course.

Jurisdiction
Australia
Judgment Date
16 November 2018
Procedural Posture
Defamation Proceedings / Application to Strike Out Amended Statement of Claim
Outcome
The amended statement of claim filed 26 October 2018 was struck out with leave to re-plead.
Legal Topics
['pleadings' 'strike Out Application' 'imputations' 'publication' 'absolute Privilege' 'aggravated Damages']
['defamation' 'civil Procedure'] ['pleadings' 'strike Out Application' 'imputations' 'publication' 'absolute Privilege' 'aggravated Damages']

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Procedural Posture

Defamation Proceedings / Application to Strike Out Amended Statement of Claim

Legal Issues

  1. 1 ['Whether the amended statement of claim in defamation should be struck out for defective pleading.' "Whether the plaintiff pleaded facts, matters and circumstances sufficient to allege that certain defendants were liable as publishers of documents appearing under another person's name." 'Whether the pleading impermissibly intermingled alleged imputations with extracts from the matters complained of.' 'Whether allegations of law, irrelevant background, and allegations that matters were not true should remain in the pleading.' 'Whether a pleaded republication in NCAT proceedings was unclear and potentially affected by absolute privilege.']

Ratio Decidendi

The amended statement of claim was struck out because it contained multiple pleading defects: it included irrelevant history, did not plead facts, matters and circumstances sufficient to connect some defendants with publication of documents appearing under other names, impermissibly intermingled imputations with extracts of the matters complained of, included embarrassing allegations and propositions of law, and contained unclear or otherwise defective allegations concerning republication, aggravated damages and damages. Leave to re-plead was granted because the plaintiff wished to re-plead and the defendants did not oppose that course.

Court Disposition

The amended statement of claim filed 26 October 2018 was struck out with leave to re-plead.

Orders

  • ['The amended statement of claim is struck out with leave to re plead.' 'The plaintiff is directed to serve any proposed amended pleading by 18 January 2019.' 'The plaintiff is ordered to pay the costs of the argument.']