Kimber v McDonald
[2018] NSWSC 1845
•30 November 2018
Supreme Court
New South Wales
Medium Neutral Citation: Kimber v McDonald [2018] NSWSC 1845 Hearing dates: 30 November 2018 Date of orders: 30 November 2018 Decision date: 30 November 2018 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings dismissed with costs
Catchwords: CIVIL PROCEDURE – pleadings – plaintiff unrepresented – statement of claim previously held to be liable to be struck out as embarrassing – where plaintiff sought an opportunity to amend – proposed amended pleading disclosing no discernible cause of action Category: Procedural and other rulings Parties: Janelle Kimber (plaintiff)
Jim McDonald (first defendant)
Scott Martin (second defendant)Representation: Counsel:
Solicitors:
Plaintiff self-represented
N Olson (defendants)
HWL Ebsworth Lawyers (defendants)
File Number(s): 2018/297515 Publication restriction: None
Judgment ex tempore – revised
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HER HONOUR: On 28 September 2018 Ms Janelle Kimber filed a statement of claim in the Supreme Court in the Common Law Division designating the matter for assignment to the Defamation List. That was appropriate in circumstances where the pleading endeavoured to plead a cause of action in defamation. Such proceedings are required to be assigned to this list in accordance with the Defamation List Practice Note SC CL4.
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The matter came before me for the first listing on 9 November 2018. On that occasion the defendant sought an order to have the pleading struck out. I explained to Ms Kimber that, on face of the pleading, no discernible cause of action was properly pleaded. Ms Kimber at that point indicated a desire to obtain legal advice in order to consider whether to file and serve an amended pleading.
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No amended pleading was served until late last night. Ms Kimber has this morning handed up in Court the proposed amended statement of claim, an affidavit affirmed by herself and a notice of motion. The notice of motion seeks a large number of orders or otherwise makes assertions which are wholly embarrassing within the legal understanding of that term. I decline to grant leave to file it in Court.
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The statement of claim similarly may be seen at a glance to be wholly embarrassing. It fails to articulate any cause of action in terms that either the Court or the defendant could understand. I decline leave to file that document.
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That takes me back to the original statement of claim filed on 28 September 2018. There being no sensible amendment to it, it is appropriate to strike out that pleading.
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On the strength of what I have heard from Ms Kimber this morning, I have formed a firm view that she is wholly unable and perhaps unwilling to articulate a cause of action in terms that could properly proceed before the Court. In those circumstances, I see no utility in granting leave to re-plead. For those reasons the proceedings are dismissed.
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I order the plaintiff to pay the defendant's costs.
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Decision last updated: 10 December 2018
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