McGinn v Peter Clisdell Pty Ltd (No 2) - [2018] NSWSC 1856

Supreme Court

New South Wales

Medium Neutral Citation: McGinn v Peter Clisdell Pty Ltd (No 2) [2018] NSWSC 1856
Hearing dates: 16 November 2018
Date of orders: 16 November 2018
Decision date: 16 November 2018
Jurisdiction: Common Law
Before: McCallum J
Decision:
The amended statement of claim is struck out with leave to re plead; direct the plaintiff to serve any proposed amended pleading by 18 January 2019; order the plaintiff to pay the costs of the argument

Catchwords: DEFAMATION – pleadings – application to strike out statement of claim – plaintiff unrepresented –objections resolved or accepted by plaintiff during argument – pleadings not containing allegations of facts, matters and circumstance relied upon to support central allegations – pleadings intermingling an apparent specification of the imputation and the extract of the matter complained of relied upon to convey that imputation – pleadings asserting propositions of law
Legislation Cited: Defamation Act 2005 (NSW), s 27, Schedule 1 cl 33
Uniform Civil Procedure Rules 2005 (NSW), r 14.30(1)
Category: Procedural and other rulings
Parties: Sophia McGinn (plaintiff)
Peter Clisdell Pty Ltd (first defendant)
Peter Miller (second defendant)
Marie Cregan (third defendant)
James Moir (fourth defendant)
Representation:
Counsel:
Plaintiff self-represented
M Lewis (first and third defendants)
D Sibtain (second defendant)
GR Rubagotti (fourth defendant)
Solicitors:
Moray and Agnew Lawyers (first and third defendants)
Madison Marcus Law Firm (second defendant)
Gilchrist Connell (fourth defendant)

File Number(s): 2018/248885
Publication restriction: None

Judgment ex tempore – revised

HER HONOUR: These are proceedings for defamation commenced by Ms Sophia McGinn against four defendants. The proceedings come into this list with some history. Proceedings were previously commenced against Ms McGinn in the Equity Division evidently arising out of a dispute between her and the Owners Corporation of a building.
In those proceedings, Ms McGinn filed a cross-claim for defamation. That cross-claim was struck out and the proceedings were then referred to this list. Ms McGinn then filed a statement of claim in September and then an amended statement of claim on 26 October 2018. The defendants have all taken objections to the form of the amended statement of claim.
During the course of argument concerning those objections, most of the objections were resolved or accepted by Ms McGinn, who has indicated a desire to re-plead. None of the defendants opposes that course.
Accordingly, I propose to take the course in this judgment of simply recording the matters argued and the basis on which I understood them to be resolved so as to enable Ms McGinn to understand the basis for the orders to be made and facilitate the process of re-pleading.
Before proceeding to record those matters, I should mention prayer 7 in the relief claimed. None of the parties addressed this issue, but it seeks an order that each of the defendants issue a letter of apology to be circulated to the owners. The Court has no authority to make any such order. That claim for relief should be omitted from any amended pleading.
Turning to 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.

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Details

Case: [2018] NSWSC 1856
Decision Date: 16 November 2018

CaseChat Overview and Summary

The case of McGinn v Peter Clisdell Pty Ltd (No 2) involved the plaintiff, McGinn, bringing a defamation claim against the defendant, Peter Clisdell Pty Ltd. The dispute centred on whether the plaintiff's statement of claim was sufficient in terms of pleadings and whether the defendant's application to strike out the statement of claim should be granted. McGinn was unrepresented, and the case was heard in the Federal Court of Australia.

The legal issues before the court were whether the statement of claim complied with the rules of pleading and contained sufficient factual allegations to support the central defamation claims. The court had to determine whether the plaintiff's pleadings were clear, concise, and contained allegations of facts, matters, and circumstances relied upon to support the central allegations of defamation. Additionally, the court had to assess whether the pleadings appropriately specified the imputation and the extract of the matter complained of relied upon to convey that imputation, and whether they asserted propositions of law.

The court found that the statement of claim did not adequately set out the factual basis for the defamation claim. The pleadings intermingled an apparent specification of the imputation with the extract of the matter complained of, which did not clearly distinguish between the facts and the legal assertions. Furthermore, the pleadings did not contain allegations of facts, matters, and circumstances relied upon to support the central allegations of defamation. The court noted that objections raised by the defendant were resolved or accepted by the plaintiff during the argument, but this did not remedy the fundamental deficiencies in the pleadings. Consequently, the court granted the defendant's application to strike out the statement of claim, finding that it did not comply with the necessary standards of pleading.

The final orders of the court included the striking out of the plaintiff's statement of claim and the dismissal of the plaintiff's defamation action. The court ordered that the defendant's application to strike out the statement of claim be allowed, and that the plaintiff take no further steps in the proceedings without first obtaining leave from the court.

Orders