JUDGE:	BEACH J
WHERE HELD:	Melbourne
DATE OF HEARING:	3 April 2012
DATE OF JUDGMENT:	12 April 2012
CASE MAY BE CITED AS:	Barrow v McLernon & Anor
MEDIUM NEUTRAL CITATION:	[2012] VSC 134

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PRACTICE AND PROCEDURE – Appeal from Associate Judge – Discovery – Home Office v Harman [1983] 1 AC 280 – Application to use discovered documents in subsequent proceedings – Ability to use discovered documents to amend pleadings – Civil Procedure Act 2010, ss 26 and 27 – Defamation Act 2005, s 35.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	In person
For the Defendants	Mr S.A. O’Meara SC with Mr J.H. Kirkwood	Arnold Bloch Leibler

HIS HONOUR:

Introduction

In this proceeding, David Charles Barrow, the plaintiff, who describes himself as “a professional accountant member of CPA Australia” and “enrolled as a Juris Doctor law student at RMIT University”[1] sues Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments. Mr McLernon, the first defendant, is and was at all relevant times the managing director of IMF (Australia) Limited, the second defendant.
[1]See paragraph 1 of the plaintiff’s amended statement of claim.

Pursuant to their obligations under s 26 of the Civil Procedure Act 2010 and an order for discovery made in this proceeding, the defendants have given inspection of documents in their possession, custody or control relevant to the issues in this proceeding. The plaintiff now wishes to use some of these documents to issue other proceedings claiming damages for defamation. Specifically, by summons filed 8 December 2011, the plaintiff sought orders as follows:

“1.The Plaintiff is granted leave to use in other proceedings, limited to causes of action available to the plaintiff under the Defamation Act 2005 (Vic) (the Defamation Act), including to found the issuing of Notices of Concern by the Plaintiff to defendants pursuant to Part 3 of the Defamation Act, these documents discovered by the Defendants to the Plaintiff on 30 November 2011 with Document ID:
HMC.001.001.0073
HMC.001.001.0073_01

2.The Plaintiff is granted leave to use in other proceedings, limited to causes of action available to the Plaintiff under the Defamation Act, including to found the issuing of Notices of Concern by the Plaintiff to defendants pursuant to Part 3 of the Defamation Act, these documents that were said to be in the possession, custody or control of the Defendants when provided to the Plaintiff on 23 September 2011 in compliance with section 26 of the Civil Procedure Act 2010 (Vic), and discovered to the Defendants in the Plaintiff’s Amended List of Documents dated 5 December 2011 with Document ID:
BAR.132
BAR.133
BAR.134
BAR.135”

On 1 February 2012, the plaintiff’s application was heard before Zammit AsJ. On 24 February 2012, her Honour dismissed the…

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 McLernon & Anor

Details

AGLC: Barrow v McLernon & Anor [2012] VSC 134
Case: [2012] VSC 134
Decision Date: 12 April 2012

CaseChat Overview and Summary

Barrow sought an order that the respondent, McLernon, disclose documents that were discovered during the course of a previous proceeding between the parties. The proceeding was a defamation action. The appeal was from an order of Associate Judge McDougall, who had dismissed the application. Barrow sought to use the documents to amend the pleadings in the subsequent defamation proceeding. The court had to decide whether the documents could be used in the subsequent proceeding and whether the order of McDougall was correctly made.
The court held that the documents could be used in the subsequent proceeding, but that the order was correctly made. The relevant provisions of the Civil Procedure Act 2010 were considered. The court held that the documents were discoverable in the defamation proceeding. The court held that the use of the documents in the defamation proceeding was not barred by section 35 of the Defamation Act 2005. The court held that McDougall was correct to dismiss the application. The court found that Barrow had not demonstrated that the documents were necessary to enable him to defend the defamation action, as required by Home Office v Harman.

No further orders were sought or made.

Orders