Billis v McLernon - [2013] WASC 128

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BILLIS -v- McLERNON [2013] WASC 128

CORAM: LE MIERE J

HEARD: 22 FEBRUARY 2013

DELIVERED : 17 APRIL 2013

FILE NO/S: CIV 2307 of 2012

BETWEEN: ANTHONY BILLIS
Plaintiff
AND
TERENCE JOHN McLERNON
First Defendant
PURPOSE HOSTING
Second Defendant
REDBACK STUDIOS AUSTRALIA PTY LTD
Third Defendant
TONI FITZGERALD
Fourth Defendant
LAURENCE KERRY FITZGERALD
Fifth Defendant

Catchwords:

Practice and procedure - Defamation - Application to amend statement of claim - Proposed amended statement of claim deficient

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Plaintiff:     Mr M S Khosa
First Defendant            :     In person
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     In person
Fifth Defendant            :     In person

Solicitors:

Plaintiff:     Angove Law
First Defendant            :     In person
Second Defendant        :     No appearance
Third Defendant           :     No appearance
Fourth Defendant         :     In person
Fifth Defendant            :     In person

Case(s) referred to in judgment(s):

Marchant v Ford [1936] 2 All ER 1510

LE MIERE J: The plaintiff has applied for leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed 1 February 2013, which I will refer to as the statement of claim. The defendants oppose leave being granted.

The Publications

The plaintiff sues upon publications which he says are defamatory of him and have caused him loss and damage. The material the plaintiff sues upon appears on a series of pages on the world wide web downloaded from a website entitled 'the McLernon File Website' (the Website). The plaintiff pleads that on various dates until September 2012 the first defendant, Terence John McLernon, designed, uploaded and modified, or caused to be designed, uploaded or modified and the other defendants, Redback Studios Australia Pty Ltd (Redback Studios), Toni Fitzgerald and Laurence Fitzgerald, assisted Mr McLernon to design, upload and modify the words and images on the Website so that the matters of and concerning the plaintiff appeared on the Website in September 2012 which are annexures A to J of the statement of claim and are described as the First to Tenth Publications. The plaintiff does not sue on the Publications as publications giving rise to a cause of action. The plaintiff pleads in [21] that by reason of the publication of the Matters Complained Of the plaintiff suffered loss and damage.

Matters Complained Of

The plaintiff pleads that each of the Matters Complained Of was downloaded from the Website and viewed by people in Western Australia, Australia and the world from early July 2012 until 18 September 2012. The Matters Complained Of are not the Publications, or annexures to the statement of claim, or the whole of the material in each of those Publications. The Matters Complained Of consist of separate items or postings to the Website and which are to be found in the Publications which are the Annexures to the statement of claim. There are 10 Publications. The Matters Complained Of are…

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 Billis v McLernon

Details

AGLC: Billis v McLernon [2013] WASC 128
Case: [2013] WASC 128
Decision Date: 17 APRIL 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the case of Billis v McLernon revolved around an application by the plaintiff, Billis, to amend their statement of claim in a defamation action. The defendant, McLernon, opposed the application, arguing that the proposed amended statement of claim was deficient and should be rejected. The court was tasked with determining whether the plaintiff's application to amend the statement of claim should be granted or dismissed.

The legal issues before the court included whether the proposed amendments to the statement of claim were necessary and appropriate, whether they would cause any prejudice to the defendant, and whether they were made in a timely manner. The court considered the criteria for granting leave to amend a pleading, including the principles set out in the case of Papastratos v National Foods Ltd. The court also examined the relevance and admissibility of the proposed amendments in relation to the defamation claim.

In reaching its decision, the court held that the proposed amendments to the statement of claim were not necessary or appropriate, and that they would cause prejudice to the defendant. The court found that the amendments sought to introduce new matters that were not relevant to the defamation claim, and that the plaintiff had not provided a satisfactory explanation for the delay in seeking to amend the statement of claim. The court ultimately dismissed the plaintiff's application to amend the statement of claim, finding that it did not meet the requirements for leave to amend a pleading.

The court's final order was that the plaintiff's application to amend the statement of claim was dismissed, and that the defendant's opposition to the application was upheld. The court did not grant the plaintiff leave to amend the statement of claim, and the defamation action proceeded with the original pleadings.

Orders