Mizikovsky v Berkley - [2021] QSC 294

SUPREME COURT OF QUEENSLAND

CITATION:

Mizikovsky v Berkley & Ors [2021] QSC 294

PARTIES:

LEV MIZIKOVSKY

(plaintiff)

v
LEIGH GEORGE BERKLEY

(first defendant)
and
MICHAEL KNOX
(second defendant)
and
ANTHONY RIVAS
(third defendant)
and
CATHERINE MARY McDOWELL
(fourth defendant)
and
SANDRA CHRISTINE BIRKENSLEIGH
(fifth defendant)
and
KRISTINE MAY
(sixth defendant)
and
COLLECTION HOUSE LIMITED (ACN 010 230 716)
(seventh defendant)
and
ASX LIMITED (ACN 008 624 691)
(eighth defendant)
and
ROWLAND PTY LTD (ACN 011 033 364)
(ninth defendant)

FILE NO:

2827 of 2019

DIVISION:

Trial

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court of Queensland

DELIVERED ON:

19 November 2021

DELIVERED AT:

Brisbane

HEARING DATE:

17 September 2021

JUDGE:

Dalton J

ORDER:

1.   Strike out paragraphs 9(c), 10 and 12 of the amended statement of claim filed 11 November 2019.

2.   Grant leave to the plaintiff to replead.

3.   Otherwise dismiss the application filed 10 August 2021.

CATCHWORDS:

DEFAMATION – DAMAGES – SEPCIAL DAMAGES – where the ninth defendant applied to have the plaintiff’s pleaded case as to special damages struck out – where the plaintiff’s damages case alleged that the plaintiff was a high profile director of four public companies listed on the ASX – where the plaintiff owned the beneficial interest in several private companies which owned shares in the public companies – where the plaintiff alleged that damage caused to the plaintiff’s reputation as a result of defamatory comments damaged the reputation of the public companies and the shareholding of the private companies and consequently the plaintiff’s personal fortune

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the damages case was not properly pleaded in terms of causation – where the subparagraphs of the particulars of loss and damage should have been pleaded as separate numbered allegations – where the pleaded case as to special damages was struck out – where the paragraphs relating to quantum of loss were struck out as the basis of the monetary amounts claimed from each defendant was not properly articulated – leave to replead

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the ninth defendant sought to have the plaintiff’s special or compensatory damages claim dismissed – where the ninth defendant submitted that the plaintiff put on no affidavit material to prove this part of the claim

Collins Stewart Ltd & Anor v The Financial Times Ltd [2004] EWHC 2337 (QB), considered
Farkas v R (2014) 243 A Crim R 388, cited
Haggarty & Ors v Wood (No 2) [2015] QSC 244, considered
Merker & Ors v Merker & Anor [2021] QSC 285, considered

COUNSEL:

N H Ferrett QC, with H L Blattman, for the applicant/ninth defendant
R J Anderson QC, with M R Wilkinson, for the respondent/plaintiff

SOLICITORS:

DLA Piper for the applicant/ninth defendant
Sparke Helmore Lawyers for the respondent/plaintiff

This is an application by the ninth defendant for…

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 Mizikovsky v Berkley

Details

AGLC: Mizikovsky v Berkley [2021] QSC 294
Case: [2021] QSC 294
Decision Date: 19 November 2021

CaseChat Overview and Summary

The case of Mizikovsky v Berkley involved the ninth defendant's application to have the plaintiff's pleaded case as to special damages struck out. The plaintiff alleged that defamatory comments had damaged their reputation, which in turn had negatively affected the reputation of four public companies listed on the ASX, in which the plaintiff held a beneficial interest. Consequently, the plaintiff claimed that the damage to their reputation had also affected the value of their shareholding in several private companies that owned shares in the public companies, impacting their personal fortune. The application was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the plaintiff's damages case was properly pleaded, particularly concerning causation and the articulation of the quantum of loss. The court found that the subparagraphs of the particulars of loss and damage should have been pleaded as separate numbered allegations. Additionally, the paragraphs relating to the quantum of loss were struck out as the basis of the monetary amounts claimed from each defendant was not properly articulated. Consequently, the court held that the plaintiff's pleaded case as to special damages was struck out.

The court granted the ninth defendant's application to strike out certain paragraphs of the amended statement of claim but also granted leave to the plaintiff to replead. The court dismissed the application for summary judgment, finding that the plaintiff had put on affidavit material to support the claim. The orders included striking out specific paragraphs of the statement of claim, granting leave to replead, and dismissing the application for summary judgment.

Orders

Orders of the court

1. Strike out paragraphs 9(c), 10 and 12 of the amended statement of claim filed 11 November 2019.

2. Grant leave to the plaintiff to replead.

3. Otherwise dismiss the application filed 10 August 2021.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Mizikovsky v Berkley & Ors [2021] QSC 294
PARTIES:	LEV MIZIKOVSKY (plaintiff) v LEIGH GEORGE BERKLEY (first defendant) and MICHAEL KNOX (second defendant) and ANTHONY RIVAS (third defendant) and CATHERINE MARY McDOWELL (fourth defendant) and SANDRA CHRISTINE BIRKENSLEIGH (fifth defendant) and KRISTINE MAY (sixth defendant) and COLLECTION HOUSE LIMITED (ACN 010 230 716) (seventh defendant) and ASX LIMITED (ACN 008 624 691) (eighth defendant) and ROWLAND PTY LTD (ACN 011 033 364) (ninth defendant)
FILE NO:	2827 of 2019
DIVISION:	Trial
PROCEEDING:	Application
ORIGINATING COURT:	Supreme Court of Queensland
DELIVERED ON:	19 November 2021
DELIVERED AT:	Brisbane
HEARING DATE:	17 September 2021
JUDGE:	Dalton J
ORDER:	1. Strike out paragraphs 9(c), 10 and 12 of the amended statement of claim filed 11 November 2019. 2. Grant leave to the plaintiff to replead. 3. Otherwise dismiss the application filed 10 August 2021.
CATCHWORDS:	DEFAMATION – DAMAGES – SEPCIAL DAMAGES – where the ninth defendant applied to have the plaintiff’s pleaded case as to special damages struck out – where the plaintiff’s damages case alleged that the plaintiff was a high profile director of four public companies listed on the ASX – where the plaintiff owned the beneficial interest in several private companies which owned shares in the public companies – where the plaintiff alleged that damage caused to the plaintiff’s reputation as a result of defamatory comments damaged the reputation of the public companies and the shareholding of the private companies and consequently the plaintiff’s personal fortune PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – PLEADINGS – STRIKING OUT – where the damages case was not properly pleaded in terms of causation – where the subparagraphs of the particulars of loss and damage should have been pleaded as separate numbered allegations – where the pleaded case as to special damages was struck out – where the paragraphs relating to quantum of loss were struck out as the basis of the monetary amounts claimed from each defendant was not properly articulated – leave to replead PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – ENDING PROCEEDINGS EARLY – SUMMARY DISPOSAL – SUMMARY JUDGMENT FOR DEFENDANT OR RESPONDENT: STAY OR DISMISSAL OF PROCEEDINGS – where the ninth defendant sought to have the plaintiff’s special or compensatory damages claim dismissed – where the ninth defendant submitted that the plaintiff put on no affidavit material to prove this part of the claim Collins Stewart Ltd & Anor v The Financial Times Ltd [2004] EWHC 2337 (QB), considered Farkas v R (2014) 243 A Crim R 388, cited Haggarty & Ors v Wood (No 2) [2015] QSC 244, considered Merker & Ors v Merker & Anor [2021] QSC 285, considered
COUNSEL:	N H Ferrett QC, with H L Blattman, for the applicant/ninth defendant R J Anderson QC, with M R Wilkinson, for the respondent/plaintiff
SOLICITORS:	DLA Piper for the applicant/ninth defendant Sparke Helmore Lawyers for the respondent/plaintiff