Matich v McLernon
[2013] WASC 127
MATICH -v- McLERNON [2013] WASC 127
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 127 | |
| Case No: | CIV:2308/2012 | 22 FEBRUARY 2013 | |
| Coram: | LE MIERE J | 17/04/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Leave refused | ||
| 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
- 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 'a hard copy of the words and pictures appearing on the archive pages of the Website as at 4 August 2011 is attached as Annexure A'. There is a similar plea in relation to the Second, Third, Fourth, Fifth, Sixth, Seventh and Eighth Publications which are annexures B to H respectively. However, the plaintiff does not sue on the Publications as publications giving rise to a cause of action. In [8] the plaintiff pleads that by reason of the publication of the Matters Complained Of the plaintiff has suffered loss and damage. The Matters Complained Of are separately pleaded. The 1st Matter Complained Of consists of words which appear in annexure A, the First Publication. The 2nd, 3rd, 4th, 5th, 6th and 7th Matters Complained Of are to be found in the Second, Third, Fourth, Fifth, Sixth and Seventh Publications respectively. The 8th and 9th Matters Complained Of are in the Eighth Publication.
(Page 4)
Imputations
4 The plaintiff pleads that the words in each of the Matters Complained Of in their natural and ordinary meaning give rise to one or more imputations that are defamatory of the plaintiff. None of the imputations are pleaded to arise by way of innuendo. It is not pleaded that any of the imputations arise from words other than those in the relevant Matter Complained Of. It is not pleaded that any of the imputations arise from the Publications as distinct from the Matters Complained Of.
5 Having regard to the way the plaintiff has chosen to plead in the statement of claim, each of the imputations must arise from the words contained in the relevant Matter Complained Of. As I have said, there is no plea that any of the Matters Complained Of give rise to a meaning by reason of any extrinsic fact or by reason of any words or images appearing in a part of the relevant Publication other than the relevant Matter Complained Of.
6 The plaintiff pleads that the Matters Complained Of together give rise to 35 imputations. It is particularly important where, as here, so many imputations are pleaded that the imputations are clear, precise and discrete. Effective case management requires that the court should ensure that the statement of claim does not proceed in a form which contains imputations which are not capable of arising from the relevant Matter Complained Of or are ambiguous or uncertain or contain unnecessary detail or are repetitive.
1st Matter Complained Of
7 The words 'of which his son Brett Matich is the leader' in imputation (i) are not capable of arising from the 1st Matter Complained Of and in any event are unnecessary detail.
2nd Matter Complained Of
8 None of the imputations pleaded are capable of arising from the words in the 2nd Matter Complained Of. Those words do not refer to the plaintiff. If the plaintiff relies upon extrinsic facts, whether contained elsewhere in the Second Publication or otherwise, then he must plead them and plead that readers of the 2nd Matter Complained Of knew those facts. The 2nd Matter Complained Of appears in the Second Publication. Paragraph 11 pleads 'particulars of identification' in relation to the Second Publication. The particulars are:
(Page 5)
- The Second Publication included numerous references to the plaintiff's name, picture and various nicknames given to him by the defendant, as well as other material concerning his business interests, from which the plaintiff can be easily identified.
- If the plaintiff relies upon various nicknames given to him by the defendant to identify the plaintiff as the person referred to in the Second Matter Complained Of, then the plaintiff must plead those nicknames, where they are to be found, and any facts relied upon to establish that readers of the 2nd Matter Complained Of identified the plaintiff as the person referred to in the 2nd Matter Complained Of by reason of the nicknames appearing in the Second Publication. Insofar as the plaintiff relies upon 'other material concerning his business interests' he must identify that material and any facts relied upon to establish that readers of the 2nd Matter Complained Of identified the plaintiff as the person referred to in the 2nd Matter Complained Of by reason of that material.
9 Furthermore, the imputations are an over-elaboration of the words in the 2nd Matter Complained Of. The 2nd Matter Complained Of does not say that the gangs associated with each other. If imputations (ii) and (iii) have any different meaning from imputation (i), then they are not capable of arising from the 2nd Matter Complained Of.
3rd Matter Complained Of
10 Imputation (iii) is not capable of arising from the words complained of. The words include 'publishing Websites under false names for money, attacking the families of people …' but do not refer to or imply that the material threatens women and children.
4th Matter Complained Of
11 The imputations pleaded are not capable of arising. The 4th Matter Complained Of refers to 'Matich'. In [13] the plaintiff pleads as particulars of identification that the 'Fourth Publication included numerous references to the plaintiff's name, picture and various nicknames given to him by the defendant, as well as other material concerning his business interests, from which the plaintiff can be easily identified'. That is not a sufficient pleading of particulars of identification for the same reason that the pleading of particulars of identification in relation to the 2nd Matter Complained Of is insufficient.
(Page 6)
5th Matter Complained Of
12 The imputations are not capable of arising. The words complained of refer to 'Brett Matich'. The particulars of identification are insufficient for the same reason that the pleading of particulars of identification in relation to the 2nd Matter Complained Of is insufficient. Imputations (ii) and (iii) are not capable of arising from the words complained of. The words do not say or imply that the plaintiff is an incompetent businessman and there is no reference to him being a director of a public company.
6th Matter Complained Of
13 Imputation (vii) is not capable of arising from the words complained of.
7th Matter Complained Of
14 The particulars of identification are defective and insufficient for the same reasons as I have set out in relation to the 2nd Matter Complained Of. Imputations (ii) and (iii) are not capable of arising.
8th Matter Complained Of
15 Imputation (ii) is not sufficiently distinct from imputation (i). The gist of the defamation is that the plaintiff stole assets, not how he applied them. Imputation (iii) consists of three imputations rolled into one - that the plaintiff is a criminal, that he is deceitful, and that he cannot be trusted.
9th Matter Complained Of
16 Imputation (i) does not arise from the words complained of. The words do not say or imply that the plaintiff accepted bribes. Imputation (iii) is not capable of arising. The words say that the plaintiff must personally attend board meetings not phone in his vote from a bar in Thailand. That might give rise to an implication that the plaintiff does or has attended meetings by telephone whilst in a bar in Thailand but there is nothing to imply that he was drunk when doing so.
Leave refused
17 For the reasons stated the statement of claim is deficient and does not comply with the rules of pleading. The plaintiff will have leave to file a further minute of proposed statement of claim.
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