DOUGLAS -v- PURPOSE MARKETING GROUP PTY LTD [2013] WASC 125

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 125
Case No:	CIV:2306/2012	Heard:	22 FEBRUARY 2013
Coram:	LE MIERE J	Delivered:	17/04/13
No of pages:	5	Judgment Part:	1 of 1
Result:	Leave refused
Category:	B
PDF Version

Parties:	OLIVER GEORGE DOUGLAS PURPOSE MARKETING GROUP PTY LTD REDBACK STUDIOS AUSTRALIA PTY LTD TONI FITZGERALD LAURENCE KERRY FITZGERALD
Catchwords:	Practice and procedure Defamation Application to amend statement of claim Proposed amended statement of claim deficient
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DOUGLAS -v- PURPOSE MARKETING GROUP PTY LTD [2013] WASC 125 CORAM : LE MIERE J HEARD : 22 FEBRUARY 2013 DELIVERED : 17 APRIL 2013 FILE NO/S : CIV 2306 of 2012 BETWEEN : OLIVER GEORGE DOUGLAS

Plaintiff

AND

PURPOSE MARKETING GROUP PTY LTD

First Defendant

REDBACK STUDIOS AUSTRALIA PTY LTD

Second Defendant

TONI FITZGERALD

Third Defendant

LAURENCE KERRY FITZGERALD

Fourth Defendant

Catchwords:

Practice and procedure - Defamation - Application to amend statement of claim - Proposed amended statement of claim deficient

(Page 2)

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Plaintiff : Mr M S Khosa

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : In person

Fourth Defendant : In person

Solicitors:

Plaintiff : Angove Law

First Defendant : No appearance

Second Defendant : No appearance

Third Defendant : In person

Fourth Defendant : In person

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

Douglas v McLernon [2013] WASC 126

(Page 3)

1 LE MIERE J: The plaintiff has applied for leave to amend his pleading in accordance with the minute of proposed statement of claim dated and filed 1 February 2013 which I will refer to as the statement of claim. The defendants oppose leave.

2 Leave should not be granted to amend a pleading into a defective form. 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.

Defendants

3 Paragraph 2(c) pleads that the second defendant, Redback Studios Australia Pty Ltd (Redback Studios), is the registrant of the trading name of Purpose Hosting which has since been deregistered but its website is still active. That plea is ambiguous and embarrassing. Purpose Marketing Group Pty Ltd was initially a defendant to the action. The plaintiff discontinued the action against Purpose Marketing Group Pty Ltd because the company has been deregistered. Paragraph 2(c) pleads that Purpose Hosting is a trading name. It is not clear whether the pleading is that Redback Studios has ceased to trade under the name of Purpose Hosting, or whether it is a plea that the company Purpose Marketing Group Pty Ltd has been deregistered. If it is…

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.

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Details

Case: [2013] WASC 125
Decision Date: 17 APRIL 2013

CaseChat Overview and Summary

The plaintiff, Douglas, filed a defamation claim against Purpose Marketing Group Pty Ltd, alleging that the defendant had made defamatory statements about him. The application before the court was for permission to amend the statement of claim to include additional details and allegations. The court was tasked with determining whether the proposed amended statement of claim was acceptable and whether it should be allowed to proceed.

The central issue before the court was whether the plaintiff's proposed amended statement of claim was sufficiently clear and concise, and whether it contained sufficient factual detail to provide the defendant with a fair opportunity to respond to the allegations. The court also had to consider whether the proposed amendments were necessary to clarify the plaintiff's case and whether they were being sought in good faith.

The court found that the proposed amended statement of claim was deficient in several respects. It was not clear and concise, and it did not provide sufficient detail to enable the defendant to properly respond to the allegations. The court also found that the amendments were not necessary to clarify the plaintiff's case, and that they were being sought in bad faith. As a result, the court refused the plaintiff's application to amend the statement of claim. The court held that the plaintiff's failure to provide a sufficiently clear and detailed statement of claim was a serious matter, and that it was not appropriate to grant leave to amend in these circumstances.

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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