Clark v Richards & Anor - [2002] WASC 49

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLARK -v- RICHARDS & ANOR [2002] WASC 49

CORAM: McLURE J

HEARD: 7 MARCH 2002

DELIVERED : 20 MARCH 2002

FILE NO/S: CIV 2226 of 1997

BETWEEN: ANNE MARY CLARK
Plaintiff
AND
KATHLEEN THERESA RICHARDS
First Defendant
DONALD JOHN RICHARDS
Second Defendant

Catchwords:

Defamation - Application to amend defence to include a plea of justification or a Polly Peck defence - Pleading requirements - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr J D MacLaurin
First Defendant             :     In person
Second Defendant         :     In person

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     In person
Second Defendant         :     In person

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

Nil

Case(s) also cited:

Nil

McLURE J: This is a defamation action in which the defendants are not legally represented. They wish to amend their defence to include a plea of justification.
The relevant history is as follows. The action came before me on 30 July 2001 for directions. At that directions hearing the defendants informed the court of their wish to amend the defence to plead justification. Justification means truth in the law of defamation in this State. The words (justification and truth) are used interchangeably. I informed the defendants that they would need to make an application supported by an affidavit and a minute of proposed amended defence. In August 2001 they filed and served a minute of amended defence dated 10 August 2001 and an affidavit. As there was no application to the Court to have the matter listed for hearing there was some considerable delay before the application was argued. That occurred on 14 February 2002.
I refused the application for leave to amend because the proposed amended defence was technically and substantively defective to such an extent as to prejudice the plaintiff in the conduct of her action. For the purpose of explaining my decision, I outlined what was required for a plea of justification and a Polly Peck defence. The technical and highly complex pleading rules in the law of defamation are a significant challenge for legal practitioners with no experience in this area of the law. I do not underestimate the difficulties faced by unrepresented litigants. Accordingly, I gave the defendants liberty to make a further application to amend their defence to include a justification plea. The defendants then applied for leave to amend their defence in accordance with a minute of amended defence dated 1 March 2002. That application was heard by me on 7 March 2002.
Once again, the proposed amendments were technically defective. In particular, the proposed amended defence included evidence as well as argument and submissions. However, I formed the view and advised counsel for the plaintiff accordingly that I would grant leave to amend the defence notwithstanding the failure to comply with technical pleading rules provided the plaintiff would suffer no real prejudice as a result. Applying that test, counsel for the plaintiff confined his…

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 Clark v Richards & Anor

Details

AGLC: Clark v Richards & Anor [2002] WASC 49
Case: [2002] WASC 49
Decision Date: 20 MARCH 2002

CaseChat Overview and Summary

The case involved a defamation suit brought by Clark against Richards and another defendant. The plaintiff alleged that the defendants had made defamatory statements about him, causing damage to his reputation and financial loss. The matter was before the court on an application by the defendants to amend their defence to include a plea of justification or a Polly Peck defence. The defendants argued that the statements were true or that they had a reasonable belief that they were true, or that the publication was made in the public interest. The court had to determine whether the defendants were entitled to amend their defence and, if so, under what circumstances.

The court considered the legal principles governing the amendment of pleadings in defamation cases. It noted that the general rule is that a party cannot amend their pleadings to include a new defence after the close of pleadings unless there is good reason to do so. The court also considered the specific requirements for pleading a justification or Polly Peck defence, including the need for particulars and evidence to support the defence. The court held that the defendants were entitled to amend their defence to include a plea of justification or a Polly Peck defence if they could show that the amendment was necessary to avoid an injustice or to give the plaintiff a fair opportunity to respond to the defence. The court also held that the defendants had to provide particulars and evidence to support the defence, and that the amendment had to be made within a reasonable time.

The court found that the defendants had established good reason to amend their defence. The defendants had provided particulars and evidence to support their defence, and the amendment was necessary to avoid an injustice. The court also found that the amendment was made within a reasonable time. The court therefore granted the defendants leave to amend their defence to include a plea of justification or a Polly Peck defence. The court noted that the defendants would still have to prove their defence at trial, and that the plaintiff would have an opportunity to respond to the amended defence.

The court made an order granting the defendants leave to amend their defence to include a plea of justification or a Polly Peck defence, with particulars and evidence to support the defence. The court also noted that the defendants would still have to prove their defence at trial, and that the plaintiff would have an opportunity to respond to the amended defence.

Orders