MATICH -v- McLERNON [2013] WASC 127

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 127
Case No:	CIV:2308/2012	Heard:	22 FEBRUARY 2013
Coram:	LE MIERE J	Delivered:	17/04/13
No of pages:	6	Judgment Part:	1 of 1
Result:	Leave refused
Category:	B
PDF Version

Parties:	PAUL MATICH TERENCE JOHN McLERNON PURPOSE MARKETING GROUP PTY LTD REDBACK STUDIOS AUSTRALIA PTY LTD TONI FITZGERALD LAURENCE KERRY FITZGERALD
Catchwords:	Practice and procedure Defamation Application to amend statement of claim Proposed amended statement of claim deficient
Legislation:	Nil
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MATICH -v- McLERNON [2013] WASC 127 CORAM : LE MIERE J HEARD : 22 FEBRUARY 2013 DELIVERED : 17 APRIL 2013 FILE NO/S : CIV 2308 of 2012 BETWEEN : PAUL MATICH

Plaintiff

AND

TERENCE JOHN McLERNON

First Defendant

PURPOSE MARKETING GROUP PTY LTD

Second Defendant

REDBACK STUDIOS AUSTRALIA PTY LTD

Third Defendant

TONI FITZGERALD

Fourth Defendant

LAURENCE KERRY FITZGERALD

Fifth Defendant

Catchwords:

Practice and procedure - Defamation - Application to amend statement of claim - Proposed amended statement of claim deficient

(Page 2)

Legislation:

Nil

Result:

Leave refused

Category: B

Representation:

Counsel:

Plaintiff : Mr M S Khosa

First Defendant : In person

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : In person

Fifth Defendant : In person

Solicitors:

Plaintiff : Angove Law

First Defendant : In person

Second Defendant : No appearance

Third Defendant : No appearance

Fourth Defendant : In person

Fifth Defendant : In person

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 LE MIERE J: The plaintiff has applied for leave to file a statement of claim in accordance with the minute of proposed statement of claim dated and filed 1 February 2013, which I will refer to as a statement of claim. The defendants oppose leave being granted.

Material sued on

2 The plaintiff sues upon publications which he says are defamatory of him and have caused him loss and damage. The material the plaintiff sues upon appears on a series of pages on the world wide web downloaded from a website entitled 'the McLernon File Website' (the Website). The plaintiff pleads that on various dates until September 2012 the first defendant, Terence John McLernon, designed, uploaded and modified, or caused to be designed, uploaded or modified and the other defendants, Redback Studios Australia Pty Ltd (Redback Studios), Toni Fitzgerald and Laurence Fitzgerald, assisted Mr McLernon to design, upload and modify the words and images on the Website so that the matters of and concerning the plaintiff appeared on the Website in September 2012 which are annexures A to H of the statement of claim.

The Publications

3 Under the heading 'The First Publication' the plaintiff pleads that in or around 4 August 2011 Mr McLernon modified the Website, or caused the Website to be modified, so that it displayed the various words and pictures of and concerning the plaintiff. Particulars of the First Publication state that…

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 Matich v McLernon

Details

AGLC: Matich v McLernon [2013] WASC 127
Case: [2013] WASC 127
Decision Date

CaseChat Overview and Summary

The case of Matich v McLernon [2013] WASC 127 involved a plaintiff, Paul Matich, who sought leave to amend his statement of claim in a defamation case against several defendants. The defendants opposed the application. The court was tasked with determining whether the proposed amended statement of claim was sufficient and compliant with the rules of pleading. The court examined the pleaded imputations and the particulars of identification provided by the plaintiff, finding significant deficiencies.

The legal issues before the court included whether the plaintiff's proposed amended statement of claim adequately identified the defamatory material and the imputations arising from it. The court scrutinized the pleadings to ensure that the imputations were clear, precise, discrete, and capable of arising from the words in the relevant matter complained of. The court also assessed whether the particulars of identification were sufficient to enable the defendants to understand the basis of the plaintiff's claims.

The court found that the proposed amended statement of claim was deficient on several grounds. Many of the pleaded imputations were not capable of arising from the relevant matter complained of, were ambiguous, uncertain, contained unnecessary detail, or were repetitive. Additionally, the particulars of identification were insufficient as they failed to specify the extrinsic facts or words relied upon to establish that readers identified the plaintiff from the complained-of material. The court concluded that the statement of claim did not comply with the rules of pleading and refused the plaintiff's application for leave to amend the statement of claim. However, the court indicated that the plaintiff would have an opportunity to file a further minute of proposed statement of claim.

In summary, the Supreme Court of Western Australia held that the proposed amended statement of claim was deficient and did not comply with the rules of pleading. The court refused the plaintiff's application for leave to amend the statement of claim but allowed the plaintiff to file a further minute of proposed statement of claim. The court's decision emphasized the importance of ensuring that pleadings are clear, precise, and compliant with legal requirements to facilitate effective case management.

Orders