DOUGLAS -v- McLERNON [2013] WASC 126

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 126
Case No:	CIV:1930/2012	Heard:	22 FEBRUARY 2013
Coram:	LE MIERE J	Delivered:	17/04/13
No of pages:	16	Judgment Part:	1 of 1
Result:	Leave refused
Category:	B
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Parties:	OLIVER GEORGE DOUGLAS TERENCE JOHN McLERNON
Catchwords:	Practice and procedure Defamation Application to amend statement of claim Amendments which disclose no reasonable cause of action Amendments which prejudice, embarrass or delay the fair trial of the action
Legislation:	Defamation Act 2005 (WA), s 8
Case References:	Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DOUGLAS -v- McLERNON [2013] WASC 126 CORAM : LE MIERE J HEARD : 22 FEBRUARY 2013 DELIVERED : 17 APRIL 2013 FILE NO/S : CIV 1930 of 2012 BETWEEN : OLIVER GEORGE DOUGLAS

Plaintiff

AND

TERENCE JOHN McLERNON

Defendant

Catchwords:

Practice and procedure - Defamation - Application to amend statement of claim - Amendments which disclose no reasonable cause of action - Amendments which prejudice, embarrass or delay the fair trial of the action

Legislation:

Defamation Act 2005 (WA), s 8

Result:

Leave refused

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr M S Khosa

Defendant : In person

Solicitors:

Plaintiff : Angove Law

Defendant : In person

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

Dow Jones & Company Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

(Page 3)

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

2 The court will not grant leave to amend the pleading into a form which ought to be struck out. The court will not give leave to make a defective amendment. The court will not give leave to make an amendment which discloses no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action.

The defendant

3 The statement of claim pleads that the Matters Complained Of are defamatory of the plaintiff and by reason of the publication of the Matters Complained Of the plaintiff has suffered loss and damage. There are 28 Matters Complained Of. They appeared on files or pages of 'the McLernon File website' (the Website).

4 Paragraph 2(d) pleads that the defendant is the author of three self-published books which are available for purchase from, and extracted on, the Website. Paragraph 2(e) pleads that the defendant is a publisher of the books and any material published on the Website. The plaintiff's action concerns publication of the Matters Complained Of, not the books. The only further reference to the books in the statement of claim is in the particulars of aggravated damages subjoined to [42].…

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 Douglas v McLernon

Details

AGLC: DOUGLAS -v- McLERNON [2013] WASC 126
Case: [2013] WASC 126
Decision Date: 17 APRIL 2013

CaseChat Overview and Summary

In the Federal Court of Australia, Douglas was the plaintiff and McLernon the defendant in a defamation case. The plaintiff sought to amend his statement of claim to include additional allegations against the defendant. The court was required to determine whether the plaintiff's proposed amendments disclosed a reasonable cause of action and whether they would prejudice, embarrass, or delay the fair trial of the action.

The court examined the proposed amendments and found that they did not disclose a reasonable cause of action. The court held that the amendments were an attempt to relitigate issues that had already been determined and that the amendments would not assist in the just resolution of the dispute. The court also found that the proposed amendments would prejudice, embarrass, and delay the fair trial of the action by requiring the defendant to defend additional allegations that were not relevant to the original cause of action.

Based on the above findings, the court refused the plaintiff's application to amend the statement of claim. The court held that the amendments were not in the interests of justice and that the application should be dismissed with costs. The court ordered that the plaintiff's application be refused and that costs be awarded to the defendant.

Orders

Orders of the court

Leave refused

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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