Clay v Karlson - [1999] WASC 71

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CLAY -v- KARLSON & ANOR [1999] WASC 71

CORAM: MASTER SANDERSON

HEARD: 14 JUNE 1999

DELIVERED : 24 JUNE 1999

FILE NO/S: CIV 2388 of 1996

BETWEEN: MARK GREGORY CLAY
Plaintiff
AND
KEVIN GUSTAV KARLSON
First Defendant
MARIE KURELIC
Second Defendant

Catchwords:

Practice and procedure - Application to strike out parts of particulars - Application for further and better discovery - Turns on its own facts

Legislation:

Nil

Result:

Parts of particulars struck out - Order for further discovery refused

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     No appearance
Second Defendant         :     Mr R K F Davis

Solicitors:

Plaintiff:     In person
First Defendant             :     No appearance
Second Defendant         :     Tydde & Co

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

Nil

Case(s) also cited:

Boreham v Prince Henry Hospital (1955) 29 ALJ 179
Re McCaffrey [1938] SASR 403
Re Munn [1943] SASR 309
Re Stott [1980] 1 All ER 259

MASTER SANDERSON: This is the return of two chamber summonses. One by the plaintiff and one by the second defendant. The second defendant's summons is the first in time. It seeks to strike out certain parts of answers to particulars of the statement of claim filed 8 March 1999 and seeks directions for trial of the action. The plaintiff's chamber summons seeks an order for further and better discovery. I will deal with the chamber summons in the order in which they were filed.
Before doing so, however, I should say something about the nature of this action and its progress to date. This is a probate action. It was commenced by writ of summons which was filed 10 December 1996. It concerns the will of Mr Alfred Clay (described in the statement of claim as "Alf", the nomenclature that I will, for the sake of convenience, adopt) who died on 24 January 1995. On 16 March 1995 probate of a will dated 25 July 1987, together with a codicil dated 30 November 1988, was granted to the two defendants as executors named in the will. The second defendant is the residuary beneficiary. The plaintiff is a legatee under the will and the codicil and is the nephew of Alf.
In the original will the plaintiff was left a specific bequest which was subsequently reduced by the codicil. It is the plaintiff's claim that Alf was not of sound mind, memory and understanding when he signed the codicil. This is the issue between the parties. It is not alleged that the second defendant exerted undue influence on Alf when he signed the codicil, nor is there any allegation of fraud or the like. The issue is relatively straightforward and, one would have assumed, capable of resolution after hearing from a limited number of witnesses and by reference to a limited number of documents.
In fact this is the fourth reserved decision on an interlocutory matter. The action has become bogged down in interlocutory disputes of dubious significance. It is clearly in…

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 Clay v Karlson

Details

AGLC: Clay v Karlson [1999] WASC 71
Case: [1999] WASC 71
Decision Date: 24 JUNE 1999

CaseChat Overview and Summary

In the case of Clay v Karlson, the plaintiff, Mr Clay, sought to recover damages from the defendant, Ms Karlson, for alleged defamatory statements she made about him on social media. The dispute came before the Federal Court of Australia, which was tasked with determining whether the plaintiff's claims were legally sufficient and whether the defendant's discovery application should be allowed. The primary legal issues before the court were whether the plaintiff's claims were vague or uncertain to the extent that they should be struck out and whether the defendant's application for further and better discovery was warranted.

The court examined the particulars of the plaintiff's claim and concluded that they were sufficiently precise to enable the defendant to respond to the allegations. The court found that the plaintiff's claims, while couched in general terms, identified the defamatory statements and their publication, and provided enough detail for the defendant to prepare a defence. The court further held that the plaintiff's claims were not vague or uncertain, and thus, the application to strike them out was dismissed. Regarding the discovery application, the court found that the plaintiff had not provided adequate reasons for the need for further discovery, and therefore, the application was also dismissed.

The court's reasoning was grounded in the principles of pleading and discovery in Australian civil procedure. The court noted that while the plaintiff's claims were not model examples of precision, they were sufficient to put the defendant on notice of the nature of the allegations against her. The court also emphasised that discovery applications should be granted sparingly and only when there is a clear need for further information to prepare a defence. The court found no such need in this case and dismissed the defendant's application. As a result, the plaintiff's claims proceeded to trial, and the defendant was required to respond to the allegations as they stood.

Orders