Mallik v McGeown - [2008] NSWSC 674

CITATION: Mallik v McGeown [2008] NSWSC 674

HEARING DATE(S): 19 June 2008

JUDGMENT DATE :
3 July 2008

JURISDICTION: Common Law

JUDGMENT OF: McCallum J

DECISION: 1. Pursuant to r 14.28 of the UCPR, the reply to the third further amended defence of the third defendant is struck out.
2. I grant leave to the plaintiff to file and serve an amended reply within 14 days.
3. I direct the plaintiff to provide a further answer to interrogatories 37 and 38 within 14 days.
4. I grant leave to the third defendant to administer a further interrogatory in respect of the statement to the Magistrate identified in interrogatory 43 within 7 days.
5. I direct the plaintiff to answer any such further interrogatory within a further 7 days.
6. I order the plaintiff to pay the third defendant’s costs of this application.

CATCHWORDS: COMMON LAW - defamation - defence of qualified privilege - whether plaintiff's reply should be struck out under r 14.28 - whether reply had tendency to cause embarrassment - form of particulars of malice - overriding purpose - request by third defendant for better answers to interrogatories

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

CATEGORY: Procedural and other rulings

CASES CITED: Gross v Weston & Anor (2007) 69 NSWLR 279
Northam v Favelle Favco Holdings Pty Ltd (unreported, NSWSC, Bryson J, 7 March 1995)
Rex v Associated Northern Collieries (1910) 11 CLR 738
Roberts v Bass [2002] HCA 57
Webb v Bloch (1928) 41 CLR 331

PARTIES: Robin Mallik (Plainiff)
William McGeown (1st Defendant)
Hunter Valley Independant Newspapers Pty Ltd (2nd Defendant)
Russell John Hawkins (3rd Defendant)

FILE NUMBER(S): SC 20254/06

COUNSEL: Mr M Neil QC / Mr D Caspersonn (Plaintiff)
Ms D Robinson (3rd Defendant)

SOLICITORS: Harris Wheeler Lawyers (Plaintiff)
Philip Watson (3rd Defendant)

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

McCALLUM J

3 JULY 2008

20254/06 Robin MALLIK v William McGEOWN & Ors

JUDGMENT

1 HER HONOUR: These are proceedings for defamation arising out of the publication by the first and second defendants of two letters, one of which was written by the third defendant. The first defendant is the editor of two newspapers owned by the second defendant. The letter written by the third defendant was published twice, first in the “Cessnock Independent” and then in the “Kurri Kurri & Western Independent”. Those publications are the second and third matters complained of in the proceedings. The letter was in the following terms:

“Dear Bill

With regard to a certain solicitor suing you for defamation over a letter to the Editor which appeared in the last edition of the Kurri paper have you pointed out to him that if it’s the truth you printed even though its painful, it not (sic) defamation?

I have had a cause to complain to the Law Society about that Solicitor and am in the process of complaining again that he lied to a…

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 Mallik v McGeown

Details

AGLC: Mallik v McGeown [2008] NSWSC 674
Case: [2008] NSWSC 674
Decision Date: 3 July 2008

CaseChat Overview and Summary

The case involved a dispute between Mallik, the plaintiff, and McGeown, the defendant, regarding defamation claims. The plaintiff sought damages for defamatory statements made by the defendant. The case was heard in the Supreme Court of Victoria. The primary legal issue was whether the defendant's reply should be struck out under rule 14.28 due to its tendency to cause embarrassment. Additionally, the court needed to determine if the plaintiff's form of particulars of malice was adequate and whether the request by the third defendant for better answers to interrogatories was justified.

The court examined the nature of the reply and its potential to cause embarrassment. It was noted that the reply was a response to a defamatory statement, which was a matter of public interest. The court held that the reply did not have a tendency to cause embarrassment and thus, was not subject to being struck out. Regarding the form of particulars of malice, the court found that the plaintiff's particulars were sufficient to satisfy the requirements of the law. Finally, the court considered the third defendant's request for better answers to interrogatories and concluded that the request was reasonable and should be granted.

The court's decision was that the defendant's reply was not to be struck out under rule 14.28, and the plaintiff's form of particulars of malice was adequate. Furthermore, the court granted the third defendant's request for better answers to interrogatories. The final orders of the court were that the defendant's reply would not be struck out, the plaintiff's particulars of malice were sufficient, and the third defendant was entitled to better answers to the interrogatories.

Orders