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Kone Elevators Pty Ltd v Elex Pty Ltd

Kone Elevators Pty Ltd v Elex Pty Ltd

Case [2000] FCA 711 30 May 2000

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FEDERAL COURT OF AUSTRALIA
Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711
PLEADINGS – defamation – whether necessary to plead precise words alleged to constitute defamatory imputation – whether O 11 r 4 has effect of relieving party from pleading precise words in such circumstances.
Trade Practices Act 1974 (Cth) s 52
High Court Rules O 20 r 22
Federal Court Rules O 11 r 2(a), O 11 r 3, O 11 r 4, O 11 r 10, O 12 r 4, O 12 r 5(1)(c),
O 12 r 5(3), O 12 r 5(5), O 23, O 62 r 36A, O 72
Occupational Health, Safety and Welfare Regulations 1995 (SA) reg 3.4.2
Supreme Court Rules, UK O 18 r 7
Supreme Court Rules, Australian Capital Territory O 23 r 21
Supreme Court Rules, New South Wales Pt 15 r 9
Supreme Court Rules, Northern Territory r 13.03
Supreme Court Rules, Queensland O 22 r 21
Supreme Court Rules, South Australia r 46.05
Supreme Court Rules, Tasmania O 21 r 23
Supreme Court Rules, Victoria r 13.03
Supreme Court Rules, Western Australia O 20 r 8
Rubenstein v Truth and Sportsman Ltd [1960] VR 473 referred to
DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 applied
Harris v Warre (1879) 4 CP 125 applied
Dare v Pulham (1982) 148 CLR 658 referred to
Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 referred to
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 applied
Bruce v Odlams Press Ltd [1936] 1 KB 697 referred to
Beach Petroleum NL v Johnson (1991) 105 ALR 456 applied
Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 applied
Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445 referred to
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 130 ALR 469 applied
Westside Typographics Pty Ltd v Flexi-Products International Pty Ltd (French J,
19 September 1988, unreported) referred to
KONE ELEVATORS PTY LTD (ACN 000 142 423) v
ELEX PTY LIMITED (ACN 050 098 489) and WARREN DARLEY
NG 1242 OF 1998
MANSFIELD J
30 MAY 2000
ADELAIDE

IN THE FEDERAL COURT OF AUSTRALIA

NEW SOUTH WALES DISTRICT REGISTRY

NG 1242 OF 1998

BETWEEN:

KONE ELEVATORS PTY LTD
(ACN 000 142 423)
APPLICANT

AND:

ELEX PTY LIMITED
(ACN 050 098 489)
FIRST RESPONDENT

WARREN DARLEY
SECOND RESPONDENT

JUDGE:

MANSFIELD J

DATE OF ORDER:

30 MAY 2000

WHERE MADE:

ADELAIDE

THE COURT ORDERS THAT:
1.The applicant file and serve particulars setting out the precise words in each of the first letter and the second letter which give rise to each of the defamatory allegations contained in par 23 of the Statement of Claim.

2.The applicant file and serve particulars of pars 17 and 27 of the Statement Claim, setting out with respect to each of the representations, the facts by reason of which it is alleged that each of the representations is false.

3.The…

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 Kone Elevators Pty Ltd v Elex Pty Ltd

Details

AGLC: Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711
Case: [2000] FCA 711
Decision Date: 30 MAY 2000

CaseChat Overview and Summary

In the matter of Kone Elevators Pty Ltd v Elex Pty Ltd, the primary issue before the court was the requirement of pleading specific words in defamation cases, particularly whether the obligation to do so could be circumvented by Order 11 rule 4 of the Supreme Court Rules. The plaintiff, Kone Elevators Pty Ltd, sought damages from the defendant, Elex Pty Ltd, alleging defamation in two letters sent by the defendant to the plaintiff’s clients. The court was tasked with determining whether the plaintiff was required to plead the precise words alleged to constitute the defamatory imputation in the letters.

The central legal issue revolved around the interpretation and application of Order 11 rule 4 in the context of defamation claims. This rule allows for a certain degree of generality in pleadings, but the court needed to ascertain whether it could be used to avoid specifying the precise words that allegedly caused the defamation. The court examined whether the plaintiff's Statement of Claim sufficiently identified the defamatory words or if it needed to be more specific as required by traditional defamation pleading standards.

The court held that, despite the provisions of Order 11 rule 4, the plaintiff was required to plead the precise words in each of the first and second letters that gave rise to the defamatory allegations. The court reasoned that in defamation cases, specificity regarding the words used is essential to enable the defendant to understand the precise nature of the allegations and to prepare an appropriate defence. Consequently, the plaintiff was ordered to provide detailed particulars of the defamatory words in the letters. Additionally, the court mandated that the plaintiff furnish further details regarding the alleged falsehoods and the claim for damages, as outlined in specific paragraphs of the Statement of Claim.

In light of the above, the court ordered that the plaintiff must file and serve particulars setting out the precise words in each letter that constitute the defamatory allegations, as well as particulars concerning the alleged falsehoods and the damages claimed. This ensures that the defendant is fully apprised of the nature of the plaintiff's claims, thereby facilitating a fair and effective legal process.

Orders

Orders of the court

1. The applicant file and serve particulars setting out the precise words in each of the first letter and the second letter which give rise to each of the defamatory allegations contained in par 23 of the Statement of Claim.

2. The applicant file and serve particulars of pars 17 and 27 of the Statement Claim, setting out with respect to each of the representations, the facts by reason of which it is alleged that each of the representations is false.

3. The applicant file and serve proper particulars of its claim for damages as made in each of pars 19, 25 and 30 of the Statement of Claim.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

MANSFIELD J

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Established by: MANSFIELD J

Full text does not contain this section.

Citations

AGLC Citation

Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711

Most Recent Citation

Nyoni v Chee Koon Hee (No 2) [2013] FCA 703

Cases citing this decision · 1 of 1 shown

Nyoni v Chee Koon Hee (No 2)
[2013] FCA 703 Para 20

…m, the precise words allegedly published. This is because the words actually published are the cause of action: Kone Elevators Pty Ltd v Elex Pty Ltd [2000] FCA 711 at [16]-[21]; Harris v Warre (1879) 4 CPD 125; (b)specify the date on which the alleged publication took place. This is essential because a one year…

View all 1 citing cases →

Cases cited in this decision · 11 of 11 shown

Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd
[1996] FCA 781 Para 2

…not to plead material facts where the pleading of those facts is a matter of “elementary and natural justice”, to use the words of Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 ( “Multigroup” ). I do not consider that O 11 r 4 has that effect. In my view it is directed to ensuring, where appropriate, the objective sp…
Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd
[1995] FCA 1082 Para 10

…d natural justice”. The proposed evidence of the applicant, through its witness statements, will not provide a substitute for proper pleadings: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 130 ALR 469. Order 11 r 2(a) provides that the pleading should not contain the evidence by which the facts alleged are to be proved.…
Beach Petroleum NL v Johnson
[1991] FCA 839 Para 8

…t 712-713. But the Court does not place such emphasis on the refined distinction between material facts and particulars as perhaps was once the case: Beach Petroleum NL v Johnson (1991) 105 ALR 456. The provision of that information by way of particulars will satisfy the need to ensure that the respondents are accorded procedural fai…
Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd
[1990] HCA 11 Para 7

…ecision. It is therefore necessary to secure the basic requirement of procedural fairness: Banque Commerciale SA, En Liquidation v Akhil Holdings Ltd (1990) 169 CLR 279 at 286.…
Schindler Lifts Australia Pty Ltd v Debelak
[1989] FCA 439 Para 9

…ations is blandly asserted in the Statement of Claim. The respondents rely on the decision of Pincus J in Schindler Lifts Australia Pty Ltd v Debelak (1989) 89 ALR 275 to say they are entitled to more. The applicants dispute that the respondents are entitled to any further particularity of the alleged falsity, and f…
Dare v Pulham
[1982] HCA 70 Para 2

…oposition. It is clear that the intention of pleadings to define the issues and so to inform the parties of the case they have to meet: Dare v Pulham (1982) 148 CLR 658 at 664, underlies O 11 generally. Order 11 r 2(a) requires a party to plead a statement in summary form of the material facts relied upon. The materi…
Allstate Life Insurance Co v ANZ
[1995] FCA 1368 Para 10

…witness statements, will not provide a substitute for proper pleadings: Allstate Life Insurance Co v Australia & New Zealand Banking Group Ltd (1995) 130 ALR 469. Order 11 r 2(a) provides that the pleading should not contain the evidence by which the facts alleged are to be proved.…
Harris v Cigna Insurance Australia Limited
[1995] FCA 1656 Para 3

…In Harris v Cigna Insurance Australia Ltd (1995) ATPR 41-445, Kiefel J said at 41,009: “It is not sufficient to require the respondents to speculate as to what are the circumstances alleged to give the facts alleged the quality of being misleading or deceptive.”…
Abram v Bank of New Zealand
[1996] FCA 635 Para 2

…a matter of “elementary and natural justice”, to use the words of Burchett J in Multigroup Distribution Services Pty Ltd v TNT Australia Pty Ltd (1996) ATPR 41-522 ( “Multigroup” ). I do not consider that O 11 r 4 has that effect. In my view it is directed to ensuring, where appropriate, the objective specified…
[1936] 1 KB 697
[1936] 1 KB 697 Para 8

…Statement of Claim. It is probably the case that that material is not properly particulars, as distinct from material facts: Bruce v Odlams Press Ltd [1936] 1 KB 697 at 712-713. But the Court does not place such emphasis on the refined distinction between material facts and particulars as perhaps was once the case…
[1973] QB 21
[1973] QB 21 Para 13

…enstein v Truth and Sportsman Ltd [1960] VR 473 at 476 ( “Rubenstein” ) and of Lord Denning MR in DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] QB 21 at 26 ( “DDSA” ). The respondents contend that their pleading is sufficient, and further that it complies with O 11 r 4 of the Federal Court Rules (“the…

Legislation cited in this decision · 2

Occupational Health, Safety and Welfare Regulations 1995 (SA)
3.4.2 2 mentions (from Para 3)
Trade Practices Act 1974 (Cth)
52 2 mentions (from Para 5)

IN THE FEDERAL COURT OF AUSTRALIA
NEW SOUTH WALES DISTRICT REGISTRY	NG 1242 OF 1998

BETWEEN:	KONE ELEVATORS PTY LTD (ACN 000 142 423) APPLICANT
AND:	ELEX PTY LIMITED (ACN 050 098 489) FIRST RESPONDENT WARREN DARLEY SECOND RESPONDENT
JUDGE:	MANSFIELD J
DATE OF ORDER:	30 MAY 2000
WHERE MADE:	ADELAIDE