Mickelberg v Hay

The plaintiffs, Raymond John Mickelberg and Peter Mickelberg, are pursuing a claim in defamation. The claim arises out of remarks allegedly made by the first defendant, Melvyn Craig Hay, in the course of a media conference called by him on 2 July 2004. The first defendant at that time was serving as Assistant Police Commissioner in the West Australian Police Service. The plaintiffs have now applied to strike out certain parts of the statement of defence filed on behalf of the second defendant, that is, the first defendant's employer: The State of Western Australia. The principal issue before the Court was the plaintiffs' challenge to the adequacy of pars 14, 18 and 19 of the second defendant's October minute of defence. The plaintiffs submitted that leave should be granted for the plaintiffs to bring an application to strike out pars 14, 18 and 19 of the second defendant's defence out of time and that the paragraphs in question should then be struck out. The corollary of a ruling to that effect was that the second defendant should not be allowed leave to amend in terms of the October minute of defence (which includes the paragraphs complained of) pursuant to the rule that the Court will not usually grant leave to amend a pleading into a form which ought to be struck out. The Court dismissed the application to strike out pars 14, 18 and 19 of the defence filed 22 March 2005 as refined by the October minute of defence. The second defendant will be allowed leave to amend its statement of defence in terms of the October minute of defence. The Court will hear from the parties as to whether any further orders or directions are required.