Mizikovsky v Berkley

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.