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

1. 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".”

2. 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…