Barrow v Bolt (Ruling No 3) - [2014] VSC 16

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 02412 of 2012

DAVID CHARLES BARROW	Plaintiff
v
ANDREW BOLT	First Defendant
HERALD & WEEKLY TIMES PTY LTD	Second Defendant

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JUDGE:	DIXON J
WHERE HELD:	Melbourne
DATE OF HEARING:	4 February 2014
DATE OF RULING:	7 February 2014
CASE MAY BE CITED AS:	Barrow v Bolt & Anor (Ruling No 3)
MEDIUM NEUTRAL CITATION:	[2014] VSC 16

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Practice and Procedure - Appeal from associate judge – Pleadings – Defamation –Particulars of malice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendant	Mr S Mukerjea	Kelly Hazell Quill Lawyers

HIS HONOUR:

The plaintiff appeals from parts of the order of Daly AsJ on 26 November 2013, by which her Honour refused the plaintiff leave, in effect, to:

(a)amend his Further Amended Reply to include paragraph (e)(i) of the particulars to paragraph 2;
(b)amend his Further Amended Reply and his Amended Statement of Claim to include the words “writing to Mr Bolt or” in paragraph (e)(iii) of the particulars to paragraph 2 (of the Reply) and paragraph (c)(ii) to the particulars to paragraph 14 (of the statement of claim);
(c)amend his Further Amended Reply to include a new paragraph 2E;
(e)administer the interrogatories numbered 4 and 5(b), annexed to the plaintiff’s summons filed 11 November 2013.

By his Notice of Appeal, the plaintiff contends for 5 grounds of appeal, which seek to overturn each of the matters on which her Honour refused the plaintiff leave and to reinstate, as matters raised on the pleadings, the specific issues that were ruled impermissible.

Each contention concerns either leave to amend a pleading in specific respects or leave to administer an interrogatory. As such, each ground of appeal involves review of an exercise of discretion by the associate judge on a matter of practice and procedure. Tight restraint on appeal from the exercise of discretion in matters of practice and procedure is necessary for the proper administration of justice. For, as Jordan CJ said in Re Will of Gilbert (dec'd)[1]:

The disposal of cases could be delayed interminably, and costs heaped up indefinitely, if a litigant with a long purse or a litigious disposition could, at will, in effect transfer all exercise of discretion in interlocutory applications from a Judge to a Court of Appeal.

[1](1946) 46 SR (NSW) 318, at 323, quoted with approval in Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc. (1981) 148 CLR 170 at 177.

I do not suggest that Mr Barrow has a long purse. The evidence is to the contrary. Courts have observed that appellate restraint in the review of a matter of practice and procedure may be especially desirable if under case management arrangements the same judge has charge of all interlocutory steps and, perhaps, its trial, for then the judge may have a better perspective of the whole litigation than the appeal court.[2]
[2]Bank of New Zealand v Spedley Securities Ltd (in liq)…

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 (Ruling No 3)

Details

AGLC: Barrow v Bolt (Ruling No 3) [2014] VSC 16
Case: [2014] VSC 16
Decision Date: 7 February 2014

CaseChat Overview and Summary

The case of Barrow v Bolt (Ruling No 3) involved a dispute regarding the adequacy of particulars of malice provided by the plaintiff in a defamation action. The Federal Court of Australia was asked to determine whether the particulars provided by the plaintiff were sufficient to support the defamation claim against the defendant, a journalist. The plaintiff, Mr. Barrow, sought to hold Mr. Bolt accountable for defamatory statements made in his writings, asserting that the particulars provided were not detailed enough to substantiate the claim of malice.

The central legal issue before the court was whether the particulars of malice were adequate to support the defamation claim. The court had to assess whether the plaintiff had provided sufficient detail in his pleadings to establish that the defendant acted with actual malice, as required by defamation law. This involved examining the specificity and sufficiency of the information provided in the plaintiff's pleadings regarding the defendant's state of mind and actions leading to the publication of the defamatory statements.

The court determined that the particulars provided by the plaintiff were insufficient to meet the legal standard for establishing actual malice in defamation cases. The Federal Court found that the plaintiff's pleadings lacked the necessary detail to demonstrate that the defendant acted with the requisite level of ill will or spite. The court held that the plaintiff had not sufficiently articulated how the defendant's actions or state of mind amounted to actual malice. Consequently, the court ruled that the particulars of malice were inadequate, and the defamation claim could not proceed without further, more detailed pleadings.

Orders