Feldman v Spinak [2016] NSWSC 1083

Feldman v Spinak [2016] NSWSC 1083

The plaintiff was granted leave to amend, but not in the form of the fourth proposed amended statement of claim. The proposed claim against the second defendant was insufficiently particularised, had poor prospects of success, and the only other cause of action pleaded against him appeared to be statute-barred because it was a different publication not sufficiently included in the original statement of claim. The surviving imputation against the first defendant was reasonably capable of being carried, except for the words referring to the plaintiff as a director of a school, which were unsupported by the matter complained of.

Jurisdiction
Australia
Judgment Date
29 July 2016
Procedural Posture
Defamation Proceedings / Application for Leave to File an Amended Statement of Claim After Earlier Pleading Was Struck Out
Outcome
Leave granted in limited form; proceedings against the second defendant dismissed; plaintiff ordered to pay the second defendant's costs.
Legal Topics
['leave to Amend Pleading' 'striking Out Pleadings' 'limitation Period' 'publication in Defamation' 'capacity of Imputation']
['defamation' 'civil Procedure'] ['leave to Amend Pleading' 'striking Out Pleadings' 'limitation Period' 'publication in Defamation' 'capacity of Imputation']

Case Brief

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Procedural Posture

Defamation Proceedings / Application for Leave to File an Amended Statement of Claim After Earlier Pleading Was Struck Out

Legal Issues

  1. 1 ['Whether the plaintiff should be granted leave to file the fourth proposed amended statement of claim.' 'Whether the second defendant should be reintroduced or remain in the proceedings.' 'Whether the proposed oral publication to the ABC on 11 February 2015 was statute-barred.' 'Whether the pleaded imputation concerning responsibility for reporting failures in dealing with child abuse incidents was reasonably capable of arising.']

Ratio Decidendi

The plaintiff was granted leave to amend, but not in the form of the fourth proposed amended statement of claim. The proposed claim against the second defendant was insufficiently particularised, had poor prospects of success, and the only other cause of action pleaded against him appeared to be statute-barred because it was a different publication not sufficiently included in the original statement of claim. The surviving imputation against the first defendant was reasonably capable of being carried, except for the words referring to the plaintiff as a director of a school, which were unsupported by the matter complained of.

Court Disposition

Leave granted in limited form; proceedings against the second defendant dismissed; plaintiff ordered to pay the second defendant's costs.

Orders

  • ['I grant leave to the plaintiff to file an amended pleading in accordance with this judgment within 14 days.' 'The proceedings as against the second defendant are dismissed.' "I order that the plaintiff pay the second defendant's costs."]