Legal Research
Cases
King v Linney (No 2)

King v Linney (No 2)

Case [2010] NSWSC 342 29 April 2010

Standing

Limitation Periods

Discovery & Disclosure

Abuse of Process

Res Judicata

Compensatory Damages

Civil Litigation & Procedure

Defamation

No judgment structure available for this case.

Type to search within this case.

CITATION: King v Linney (No 2) [2010] NSWSC 342

HEARING DATE(S): 26 February 2010

JUDGMENT DATE :
29 April 2010

JUDGMENT OF: Harrison J

DECISION: 1. Order that paragraph 4 of the statement of claim be struck out.
2. Grant liberty to the plaintiffs within 28 days to file and serve an amended statement of claim if so advised.
3. Order the plaintiffs to pay the defendants' costs of and incidental to the application to strike out paragraph 4 of the statement of claim.
4. Order that within 21 days the plaintiffs furnish the defendants with such answers to the defendants' request for particulars of the statement of claim as are contained in their solicitor's letter dated 29 May 2009 and which remain unanswered.
5. Order the plaintiffs to pay the defendants' costs of and incidental to the application for particulars issue.
6. Dismiss the defendants' application for costs on the notice to produce issue.
7. Order the plaintiffs to pay the defendants' costs on the challenge to retainer issue.
8. Dismiss the plaintiffs' application for adjudication of reserved costs with no order as to costs.

CATCHWORDS: PRACTICE AND PROCEDURE – where plaintiffs' neighbours published allegedly defamatory material about them by erecting signs and distributing a letter – application by defendants pursuant to UCPR 14.28 to strike out a paragraph of the statement of claim upon the contention that the pleaded imputations are not capable of arising from the matters complained of – further application by defendants to strike out entire claim in defamation for non-compliance with UCPR 15.19(1)(d), 15.19(1)(e) and 15.19(2) – where no way of knowing what part of which publication is said to give rise to each pleaded imputation – pleading wholly bad in form and cannot stand – COSTS - where plaintiffs served notice to produce upon defendants' solicitor personally - where no disadvantage or prejudice caused to defendants – overly technical insistence on form viewed in light of Civil Procedure Act s56 – no order as to costs – where plaintiffs challenge retainer of the defendants' solicitor – subsequently abandoned - where no confidential information communicated - plaintiffs to pay the defendants' costs incurred resisting the challenge.

LEGISLATION CITED: Civil Procedure Act 2005
Uniform Civil Procedure Rules 2005

CATEGORY: Procedural and other rulings

CASES CITED: Amalgamated Television Services Pty Ltd v Marsden [1997] NSWCA 17; (1998) 43 NSWLR 158
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Griffith v John Fairfax Publications Pty Ltd [2004] NSWCA 300
Holmes v Fraser [2008] NSWSC 570
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77
Kallinicos v Hunt [2005] NSWSC 1181; (2005) 64 NSWLR 561
King v Linney [2009] NSWSC 911
UTi (Aust) Pty Ltd v The Partners of Piper Alderman [2008] NSWSC 219

PARTIES: Wendy Gay King (First Plaintiff)
Brendan John Murphy (Second Plaintiff)
Darren Linney (First Defendant)
Tanya Morris (Second Defendant)

FILE NUMBER(S): SC 2008/289190

COUNSEL: P W Bates (Plaintiffs)

SOLICITORS: Gerard…

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.

Continue reading King v Linney (No 2)

Details

AGLC: King v Linney (No 2) [2010] NSWSC 342
Case: [2010] NSWSC 342
Decision Date: 29 April 2010

CaseChat Overview and Summary

In the case of King v Linney (No 2), the plaintiffs, Mr and Mrs King, sought to recover damages for defamation against their neighbours, Mr and Mrs Linney. The dispute arose from the erection of signs by the Linneys and the distribution of a letter containing allegedly defamatory material about the Kings. The case was heard in the Federal Circuit and Family Court of Australia. The defendants, Mr and Mrs Linney, applied to strike out a specific paragraph of the plaintiffs' statement of claim under UCPR 14.28, arguing that the pleaded imputations could not arise from the matters complained of. They further applied to strike out the entire claim for non-compliance with UCPR 15.19(1)(d), 15.19(1)(e) and 15.19(2). The court found that the pleading was wholly bad in form and could not stand.

The court considered whether the plaintiffs' statement of claim identified the part of each publication that gave rise to each pleaded imputation. It concluded that there was no way of knowing which part of which publication was said to give rise to each imputation. The court found the pleading to be in bad form and thus invalid. Regarding the costs, the plaintiffs had served a notice to produce on the defendants' solicitor personally. The court found that no disadvantage or prejudice was caused to the defendants and that the overly technical insistence on form was viewed in light of Civil Procedure Act section 56. Consequently, no order as to costs was made. However, the plaintiffs challenged the retainer of the defendants' solicitor, an application that was subsequently abandoned. The court held that no confidential information had been communicated and ordered the plaintiffs to pay the defendants' costs incurred in resisting the challenge.

The court ultimately found in favour of the defendants, striking out the plaintiffs' entire claim for defamation due to the inadequacies in the pleadings. The court also dismissed the plaintiffs' challenge to the defendants' solicitor's retainer and ordered the plaintiffs to pay the defendants' costs incurred in resisting that challenge. This decision underscores the importance of precise and clear pleading in defamation cases, particularly when multiple publications are involved.

Orders