Mohareb v Jankulovski - [2014] NSWSC 767

Supreme Court

New South Wales

Case Title: Mohareb v Jankulovski

Medium Neutral Citation: [2014] NSWSC 767

Hearing Date(s): 6 June 2014

Decision Date: 06 June 2014

Before: McCallum J

Decision:
Application for order for further and better particulars refused.

Catchwords: DEFAMATION - pleading and particulars - application for order for further and better particulars of claim for aggravated damages

Cases Cited: Mohareb v Jankulovski [2013] NSWSC 850

Category: Interlocutory applications

Parties: Nader Mohareb (plaintiff)
Emil Jankulovski (first defendant)
Emil & Sons Pty Ltd t/as Inducta Engineering (second defendant)

Representation

- Counsel: Counsel:
C Dibb (plaintiff)
M Dulhunty (defendants)

- Solicitors: Solicitors:
C Jankulovska (defendants)

File Number(s): 2012/68684

Publication Restriction: None

JUDGMENT - EX TEMPORE

HER HONOUR: These are proceedings for defamation arising out of the publication of two letters. The application before the Court is the defendants' application for an order that the plaintiff provide further and better particulars of paragraph 8 of the second further amended statement of claim, which is the paragraph in which the plaintiff makes a claim for aggravated damages. I have reached the conclusion that the application must be dismissed, for the following reasons.
It is necessary to recite something of the history of the plaintiff's attempts properly to plead his claim. The claim originally included a claim for misleading or deceptive conduct in addition to the defamation claim. A challenge to that pleading was determined by Harrison AsJ on 27 June 2013: see Mohareb v Jankulovski [2013] NSWSC 850.
Harrison AsJ struck out the misleading or deceptive conduct claim with leave to replead. Her Honour also struck out paragraph 8 of the further amended statement of claim as it then existed. The form of the pleading her Honour was considering was the further amended statement of claim filed 31 May 2012. In that pleading, the plaintiff had pleaded a claim for aggravated damages in the following terms:
8. Further, as a result of the matters particularised hereunder, the plaintiff claims aggravated damages:
Particulars of Aggravated Damage
i. The plaintiff's knowledge of the falsity of the imputations;
ii. the first defendant's failure to verify the truth of any of the imputations before publication;
iii. the malice of the defendants towards the plaintiff including:
1. the refusal of the defendants to continue software support of their product in the knowledge that the plaintiff was using their software to complete a structural engineering design contract;
2. the first defendant's refusal to meet with the plaintiff in a meeting proposed by the representative of Sonenco Apartments (being the addressee of the matters complained of ) in late March or early April 2012, when that representative expressed his wish to meet with both the defendants and the plaintiff to understand and verify the defendants' claims.
3. the deliberate sabotaging of the plaintiff's own version of the software by remotely shutting down the software on the plaintiff's computer at the time when the defendants knew that the plaintiff was using their software to complete a structural engineering design contract;

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 Mohareb v Jankulovski

Details

AGLC: Mohareb v Jankulovski [2014] NSWSC 767
Case: [2014] NSWSC 767
Decision Date: 06 June 2014

CaseChat Overview and Summary

The Court heard an application in the Federal Circuit Court from the plaintiff, Mohareb, against the defendant, Jankulovski, concerning a defamation claim. The plaintiff sought aggravated damages for statements allegedly made by the defendant, and the defendant argued that the plaintiff's claim was vague and required further particulars. The court was required to determine whether the plaintiff's claim was sufficiently particularised to warrant proceeding to trial or if further details were needed.

The legal issues before the court involved the adequacy of the plaintiff's particulars in relation to the claim for aggravated damages. The court needed to assess whether the plaintiff had provided enough detail to support the claim and if the defendant could identify the specific defamatory imputations. The court also considered the balance between ensuring the defendant was not unfairly prejudiced by vague allegations and protecting the plaintiff's right to pursue a claim.

The court found that the plaintiff's particulars were insufficient to support the claim for aggravated damages. The plaintiff had not sufficiently identified the specific defamatory imputations that caused the alleged harm. The court ordered the plaintiff to provide further and better particulars within a specified timeframe, ensuring the defendant was not unfairly disadvantaged in defending the claim. The court's decision balanced the need for clear pleadings with the plaintiff's right to pursue a defamation claim.

Orders