Clarke v Herrick

The appeal concerned an application for leave to appeal from the summary dismissal of an amended claim. The original claim alleged republications of certain material, to which defences of absolute privilege were raised. However, the amended claim alleged only the original publication, which the respondents argued was time-barred. The applicant contended that the summary dismissal of the amended pleading involved error or was procedurally unfair. The appeal was heard by Meagher and Leeming JJA.

The primary legal issue before the Court of Appeal was whether the summary dismissal of the amended claim was erroneous or procedurally unfair, given the applicant's arguments regarding the original publication and the alleged time bar. This required the Court to consider the proper application of the rules governing summary dismissal and the principles of procedural fairness in the context of amended pleadings.

The Court of Appeal considered the applicant's arguments and the circumstances surrounding the summary dismissal. While granting an extension of time for the applicant to file the summons seeking leave to appeal, the Court ultimately dismissed the summons. This indicated that the Court found no error in the summary dismissal or that the applicant had not demonstrated sufficient grounds to warrant leave to appeal. The Court also dismissed a subsequent notice of motion filed by the applicant.

The final orders of the Court were to extend the time for Ms Clarke to file the summons seeking leave to appeal to 11 November 2019, and then to dismiss the summons seeking leave to appeal. The Court also dismissed Ms Clarke’s notice of motion filed on 10 January 2020 and ordered Ms Clarke to pay the respondents’ costs of the summons, with specific exceptions relating to her notice of motion and oral argument on 17 April 2020.