Finnegan v Washington

FEDERAL COURT OF AUSTRALIA

Finnegan v Washington [2020] FCA 601

File number:

WAD 429 of 2019

Judge:

JACKSON J

Date of judgment:

6 May 2020

Catchwords:

COSTS - amendment of statement of claim - no reason to depart from usual rule as to costs thrown away

Legislation:

Federal Court of Australia Act 1976 (Cth) s 43

Federal Court Rules 2011 (Cth) r 16.55

Cases cited:

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

Kazar (Liquidator) v Kargarian; In the Matter of Frontier Architects Pty Ltd (In Liq) [2011] FCAFC 136; (2011) 197 FCR 113

Laing O'Rourke (BMC) Ltd (formerly Barclay Mowlem Construction Ltd) v Dampier Port Authority [2007] WASC 87

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

Stanley v Layne Christensen Company [2006] WASCA 56

Date of hearing:

Determined on the papers

Date of last submissions:

15 April 2020 (applicant)
22 April 2020 (first, second and third respondents)
28 April 2020 (applicant in reply)

Registry:

Western Australia

Division:

General Division

National Practice Area:

Other Federal Jurisdiction

Category:

Catchwords

Number of paragraphs:

12

Counsel for the Applicant:

The applicant appeared in person

Counsel for the First Respondent:

Mr A Gregg

Solicitor for the First Respondent:

Wotton & Kearney Lawyers

Counsel for the Second Respondent:

The second respondent appeared in person

Counsel for the Third Respondent:

Ms K Michael

Solicitor for the Third Respondent:

Aherns Lawyers

ORDERS

WAD 429 of 2019

BETWEEN:

PATRICK FINNEGAN

Applicant

AND:

TIM WASHINGTON

First Respondent

MATTHEW KEMNER

Second Respondent

RICHARD BAIRD

Third Respondent

JUDGE:	JACKSON J
DATE OF ORDER:	6 MAY 2020

THE COURT ORDERS THAT:

1.The applicant has leave to file an amended statement of claim in the same form as the minute of proposed amended statement of claim that the applicant emailed to the Court on 25 March 2020.

2.The applicant must pay the respondents' costs thrown away by reason of the amendments, if any.

Note:   Entry of orders is dealt with in Rule 39.32 of the Federal Court Rules 2011.

REASONS FOR JUDGMENT

JACKSON J:

1. Mr Finnegan claims that each of the respondents is liable to him for defamation.  He alleges that they made defamatory statements in a particular channel in a Slack workspace, which broadly speaking is a kind of Internet conversation board.  It is pleaded that members of the public can join or be invited to join a Slack channel.

2. The respondents complained that the statement of claim did not adequately plead the element of publication of the defamatory statements.  After correspondence between the parties, Mr Finnegan has produced a minute of proposed amended statement of claim which adds to the plea of publication, by way of what are described as further particulars.  The respondents do no oppose leave to amend in terms of the minute, but seek their costs thrown away by reason of the amendments, if any.  Mr Finnegan opposes that order and seeks an order that any costs incurred by reason of the amendments be costs in the…