Kelly v Burston (No.2) - [2021] NSWDC 794

District Court

New South Wales

Medium Neutral Citation: Kelly v Burston (No.2) [2021] NSWDC 794
Hearing dates: 16 September 2021
Date of orders: 16 September 2021
Decision date: 16 September 2021
Jurisdiction: Civil
Before: Gibson DCJ
Decision:
Order:
(1)   The document headed “Further Amended Statement of Claim” date 21 April 2021 is struck out with leave to replead.
(2)   The plaintiff is to file the following documents in 21days :
(a)   Amended Statement of Claim giving proper particulars of identification, pleading implication of appropriate for a group of liable (including any pleading of innuendo), and deleting particulars of malice
(b)   A Reply particularising malice.
(3)   Plaintiff is to pay the defendant’s cost of the application.
(4)   Matter stood over to the Defamation List on Thursday 21 October 2021 at 9am.

Catchwords:
TORT – defamation – application to strike out the current form of the statement of claim – pleading of imputations for a group libel – inclusion of material on malice in the statement of claim – whether leave to replead should be granted – leave granted

Cases Cited:
Kelly v Burston (District Court (NSW), 15 April 2021, unrep
McCormick v John Fairfax & Sons (1989) 16 NSWLR 485
Morten Christiansen v Fairfax Media Publications Pty Ltd & Ors [2012] NSWSC 1258
Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188

Category: Procedural rulings
Parties: Plaintiff: Peter James Kelly
Defendant: Brian Burston
Representation:
Plaintiff: self-represented

Counsel:
Defendant: Mr N Olson
Solicitors:
Defendant: Alexander Law

File Number(s): 2020/00029704

Judgment

The plaintiff brings proceedings for defamation by statement of claim filed on 29 January 2020. The matter complained of is a statement made by the defendant in the course of a television interview on Sky News on 29 January 2019 and is as follows:

“2 The plaintiff by statement of claim as amended on 22 April 2020 brings proceedings for defamation for statements made by the defendant in the course of a television interview of the defendant by Graham Richardson on Sky News on 29 January 2019. In the course of that interview, he was asked about the circumstances in which he had unfairly dismissed staff and, specifically, whether he had sacked up to 11 people in the three years just past. The defendant replied:
"No, well - there's five perhaps that I dismissed for breach of trust; there were four that were on probation or casual and I let them go after I completed the project I had set for them; the others were - er - um resignations...so whoever said that, that's a fallacy and as you state, I certainly must have some enemies somewhere".”

These proceedings have been difficult to case manage by reason of the combative attitudes of the plaintiff and defendant, each of whom has been self-represented. After I made observations as to the inadequacies of the statement of claim in my judgment of 15 April 2021 (Kelly v Burston (District Court (NSW), 15 April 2021, unrep), the plaintiff served a document headed “further amended statement of…

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: [2021] NSWDC 794
Decision Date: 16 September 2021

CaseChat Overview and Summary

The case before the court involved an application by Burston against Kelly to have the current form of the statement of claim struck out, arguing that it contained numerous defects. Kelly, the plaintiff, had filed a defamation suit against Burston, the defendant. The issues at the heart of the case were whether the plaintiff had correctly identified the defamatory imputations and if the inclusion of malice in the statement of claim was appropriate.

The court had to determine whether the plaintiff's statement of claim was legally sufficient and whether the plaintiff should be granted leave to amend the statement of claim to address the deficiencies. The court found that the plaintiff's statement of claim did not properly particularise the identification of the defamatory imputations, particularly concerning the group libel. Additionally, the inclusion of malice in the statement of claim was deemed inappropriate as it was not a necessary element in defamation cases in this jurisdiction. The court concluded that the plaintiff should be given leave to replead, with specific instructions to properly identify the defamatory imputations, address the issue of group libel, and remove references to malice.

The court granted leave for the plaintiff to file an amended statement of claim within 21 days, specifying the necessary changes. The plaintiff was also required to file a reply particularising any allegations of malice. The plaintiff was ordered to pay the defendant's costs associated with the application. The matter was stood over to the Defamation List for further proceedings.

Orders

Orders of the court

Order:

(1) The document headed “Further Amended Statement of Claim” date 21 April 2021 is struck out with leave to replead.

(2) The plaintiff is to file the following documents in 21days :

(a) Amended Statement of Claim giving proper particulars of identification, pleading implication of appropriate for a group of liable (including any pleading of innuendo), and deleting particulars of malice

(b) A Reply particularising malice.

(3) Plaintiff is to pay the defendant’s cost of the application.

(4) Matter stood over to the Defamation List on Thursday 21 October 2021 at 9am.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	Kelly v Burston (No.2) [2021] NSWDC 794
Hearing dates:	16 September 2021
Date of orders:	16 September 2021
Decision date:	16 September 2021
Jurisdiction:	Civil
Before:	Gibson DCJ
Decision:	Order: (1) The document headed “Further Amended Statement of Claim” date 21 April 2021 is struck out with leave to replead. (2) The plaintiff is to file the following documents in 21days : (a) Amended Statement of Claim giving proper particulars of identification, pleading implication of appropriate for a group of liable (including any pleading of innuendo), and deleting particulars of malice (b) A Reply particularising malice. (3) Plaintiff is to pay the defendant’s cost of the application. (4) Matter stood over to the Defamation List on Thursday 21 October 2021 at 9am.
Catchwords:	TORT – defamation – application to strike out the current form of the statement of claim – pleading of imputations for a group libel – inclusion of material on malice in the statement of claim – whether leave to replead should be granted – leave granted
Cases Cited:	Kelly v Burston (District Court (NSW), 15 April 2021, unrep McCormick v John Fairfax & Sons (1989) 16 NSWLR 485 Morten Christiansen v Fairfax Media Publications Pty Ltd & Ors [2012] NSWSC 1258 Lazarus v Deutsche-Lufthansa AG (1985) 1 NSWLR 188
Category:	Procedural rulings
Parties:	Plaintiff: Peter James Kelly Defendant: Brian Burston
Representation:	Plaintiff: self-represented Counsel: Defendant: Mr N Olson Solicitors: Defendant: Alexander Law
File Number(s):	2020/00029704