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Barrow v Bolt

Barrow v Bolt

Case [2013] VSC 226 6 May 2013

Appeal

Aggravated & Exemplary Damages

Sufficiency of Pleading

Civil Litigation & Procedure

Defamation

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IN THE SUPREME COURT OF VICTORIA		Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. S CI 2012 02412

DAVID CHARLES BARROW	Plaintiff
v
ANDREW BOLT THE HERALD & WEEKLY TIMES PTY LIMITED	Defendants

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JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2013
DATE OF JUDGMENT:	6 May 2013
CASE MAY BE CITED AS:	Barrow v Bolt & Anor
MEDIUM NEUTRAL CITATION:	[2013] VSC 226

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PRACTICE AND PROCEDURE – Appeal – Defamation – Pleadings – Statement of claim – Application to amend statement of claim – Aggravated damages – Sufficiency of pleading - Triggell v Pheeney (1951) 82 CLR 497 applied.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Dr M.J. Collins SC with Mr S. Mukerjea	Kelly Hazell Quill

HIS HONOUR:

Introduction

In this proceeding, the plaintiff claims damages for defamation against the defendants in relation to a response made to a complaint by the plaintiff to the Australian Press Council. The plaintiff complains that the response conveyed a number of imputations defamatory of him. The imputations pleaded by the plaintiff include:

(b)Mr Barrow is a person who has habitually, persistently and without any reasonable ground brought vexatious legal proceedings over a long time.
…
(d)Mr Barrow is a vexatious litigant in many forums over a long time.

By a summons filed 14 January 2013, the plaintiff sought orders that he be granted leave to file and serve an amended statement of claim and an amended reply. By a summons filed 4 February 2013, the defendants sought orders striking out parts of the plaintiff’s reply.

On 3 April 2013, the summonses came on for hearing before Daly AsJ. On that day, her Honour made orders dealing with both summonses. Further, her Honour made procedural directions and fixed the matter for trial on 15 October 2013.

On 17 April 2013, the plaintiff filed a notice of appeal. In his notice of appeal, the plaintiff makes complaint about paragraph A of Other Matters and paragraphs 1 and 10 of the orders made by her Honour.

In paragraph 1 of her Honour’s orders, the plaintiff was given leave to file an amended statement of claim substantially in the form of a draft provided by him – save for paragraphs 12 and 13 of that document. In paragraph 10 of her Honour’s orders, the plaintiff was ordered to pay 50 per cent of the defendants’ costs of and incidental to both summonses. Paragraph A of Other Matters in the authenticated order was in the following terms:

I agree that the position in Victoria is that in order to found a claim for aggravated damages, the plaintiff must plead contumelious or other like conduct on the part of the defendant which justifies an award of aggravated damages. It may well be that the plaintiff’s knowledge of the falsity of the allegations may be relevant to the quantum of any award of general damages.[1]

[1]Emphasis in original.

This is the hearing of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barrow v Bolt

Details

AGLC: Barrow v Bolt [2013] VSC 226
Case: [2013] VSC 226
Decision Date: 6 May 2013

CaseChat Overview and Summary

The appeal, Barrow v Bolt, was heard by the Supreme Court of Queensland, with the primary dispute centering around defamation and the adequacy of the plaintiff's statement of claim. The plaintiff sought aggravated damages against the defendant, a well-known journalist, for defamatory statements made during a television broadcast. The defendant moved to dismiss the plaintiff's claim on the basis that the statement of claim was deficient and did not adequately plead the necessary elements for aggravated damages.

The primary legal issues before the court were whether the plaintiff's statement of claim sufficiently pleaded the elements necessary to claim aggravated damages and whether the court should permit an amendment to the statement of claim. The court had to consider the principles established in Triggell v Pheeney, which sets out the requirements for pleading aggravated damages in defamation cases, and determine whether the plaintiff's statement of claim met these requirements.

The court held that the plaintiff's original statement of claim was insufficient in pleading the elements required for aggravated damages, particularly as it did not specify the particulars of the alleged malice, oppression, or contempt which are necessary to support such a claim. The court applied the principles from Triggell v Pheeney and found that the plaintiff had not adequately detailed the circumstances that would justify the award of aggravated damages. While the court recognised the importance of allowing amendments to pleadings where justice demands it, it determined that in this instance, permitting an amendment would not remedy the deficiencies in the plaintiff's claim. Consequently, the defendant's motion to dismiss was upheld.

The court dismissed the plaintiff's claim for aggravated damages and refused the application to amend the statement of claim. The defendant was therefore exonerated from liability for the aggravated damages sought by the plaintiff.

Orders