Darbyshir v Daily Examiner Pty Limited

[1999] NSWSC 1091

CITATION:

Darbyshir v Daily Examiner Pty Limited [1999] NSWSC 1091

CURRENT JURISDICTION:

Common Law

FILE NUMBER(S):

21467 of 1996

HEARING DATE(S):

5 November 1999

JUDGMENT DATE:

5 November 1999

PARTIES :

KATHERINA DARBYSHIR
(Plaintiff)

v

DAILY EXAMINER PTY LIMITED
(Defendant)

JUDGMENT OF:

Levine J

COUNSEL :	J Gibson (Plaintiff) R McHugh (Defendant)
SOLICITORS:	Bartier Perry & Purcell (Plaintiff) Bush Burke & Company (Defendant)
CATCHWORDS:	Claim for damages - closure of business
DECISION:	See paragraphs 8-10

DLJ: 3
(Ex Tempore - Revised)

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
DEFAMATION LIST

No. 21467 of 1996

JUSTICE DAVID LEVINE

FRIDAY 5 NOVEMBER 1999

KATHERINA DARBYSHIR
(Plaintiff)

v

DAILY EXAMINER PTY LIMITED
(Defendant)

JUDGMENT (Claim for damages - closure of business)

1    HIS HONOUR: The objective of the orders I propose to make is to oblige the plaintiff to identify precisely the nature of her damages claim, it having been abandoned as a claim for “special damages”. 2    Insofar as the plaintiff is making a claim, that it is characterised as one, whilst not a claim for special damages, is either what is known as an Andrews claim, or otherwise can be characterised as a claim entitling the plaintiff in some way to an award of damages, or in some way to have included in her damages a component consequent upon the closure of her business as has been asserted, then the plaintiff is to provide the particulars referred to in paragraph 2 of the memorandum prepared by counsel for the defendant, and to give discovery in accordance with paragraph 4. The plaintiff is to take those steps by 4pm on Wednesday 17 November 1999, and the matter will be listed for directions on 19 November 1999. 3    Having said that, it is to be noted that in the amended statement of claim filed on 7 November 1997, in paragraph 5 there is what is described as a claim for "A general loss of business and custom not yet ascertained" and a claim for "Special damages" as set out in subparagraph (b) of paragraph 5 of that pleading. 4    By reason of that formulation having been contained effectively in the originating process filed on 24 December 1996, reference can be had to the correspondence in relation to particulars from the defendant dated 10 February 1997 and the plaintiff dated 20 February 1997. Paragraph 6 of the first letter is in the usual terms as a request for particulars in relation to a claim for general damages, or a claim by way of a reduction of earning opportunity or other economic loss. The response identifies a general loss of business or custom, and defers the particularisation of the matters to found it (see Norris & Anor v Illawarra Newspaper Pty Limited Levine J 16 December 1994). 5    On 21 September 1999 the solicitors for the plaintiff informed the solicitors for the defendant that there was no claim for special damages. On 2 November this year the solicitors for the defendant sought clarification of the nature of the plaintiff's claim and it was met with the response in a letter dated 2 November 1999:

“As we have stated before, the particulars provided by our client of her general damages and her discovery on this issue are complete. There is no more. Subsequent to the defamation, our client's business failed and was closed. These are the particulars; you have been forewarned."

6    Two pages of a costs journal have been discovered, the relationship of which to any claim frankly escapes me. It was the defendant's fundamental application to have whatever the claim was the plaintiff was purporting to make, struck out. I would have been dangerously close to being inclined to accommodate the defendant. It is a drastic step to strike out a claim for damages, even if a view is open that the particularisation at the time of the application is hopelessly inadequate. But as has been acknowledged, it is ever available to a litigant at the very least to seek leave to revive a claim or further to particularise one. It is to obviate the incurring unnecessarily of loss of court time and costs by such a procedure, that I have made the orders that I outlined at the beginning of these reasons. 7    It must be stressed that the defendant is entitled, within the short time I have allowed the plaintiff, first to a clear articulation of the nature of the claim the plaintiff is making in the face of the abandonment of her claim for special damages, and second how so ever it is articulated along the lines I suggested in the opening remarks, then the defendant is entitled to particulars as I have ordered and discovery as I have ordered. 8    In the event that there has been non compliance by the plaintiff by 5pm on 17 November, then it fairly can be anticipated that on the 19th any application made again by the defendant for the relief of the kind sought this morning will receive sympathetic consideration. 9    The defendant has leave to administer an additional two interrogatories in relation to the placement of advertisements for the plaintiff's business. Those interrogatories are to be delivered by no later than 4pm on 10 November 1999, and to be answered by 4pm on 17 November 1999. 10    I will note that the defendant has argued that an order for costs should be made in respect of today, and in its favour, particularly in the light of a letter of 2 November. I will reserve that question until 17 November.
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Last Modified: 11/09/1999