Paule v McKay

[2020] ACTSC 145

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Paule v McKay

Citation:

[2020] ACTSC 145

Hearing Date:

07 May 2020

DecisionDate:

05 June 2020

Before:

Crowe AJ

Decision:

See [74]

Catchwords:

PRACTICE & PROCDURE – Application to amend originating proceedings and statement of claim – no need for claim for interlocutory relief to be added – proposed amendment of statement of claim comprehended by original pleading – amendments allowed

Legislation Cited:

Australian Securities and Investments Commission Act 2001 (Cth) s 8(1)(a)

Court Procedures Act 2004 (ACT) s 5A
Court Procedures Rules 2006 (ACT) r 501, 502, 503, 504, 505, 506, 514

Limitation Act 1985 (ACT) s 21B(2)

Cases Cited:

Aon Risk Services Australia Ltd v ANU [2009] HCA 27; 239 CLR 175

Mann v O’Neill [1997] HCA 28; 191 CLR 204
Bennet v ACT [2016] ACTSC 258
Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198
Carey v ABC [2010] NSWSC 709; (2010) 77 NSWLR 136
Grassby v R (1991) 55 A Crim R 419
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Walker v Brimblecombe [2016] 2 Qd R 384; [2015] QCA 232 Belbin v McLean [2004] QCA 181

Erglis v Buckley & Ors [2004] QCA 223; 2 Qd R 599

Parties:

Spiro Paule (Plaintiff)

David McKay (Defendant)

Representation:

Counsel

Mr Friedgut (Plaintiff)

Mr Karam (Defendant)

Solicitors

Harmers Workplace Lawyers (Plaintiff)

Just Dispute Resolution (Defendant)

File Number(s):

SC 11 of 2020

Crowe AJ:

1. The issues for decision arise from a long and complex history of litigation between the plaintiff (and/or related parties) and the defendant (and others). This has been conducted in the NSW Supreme Court, the Federal Court of Australia and in this Court. The background to this particular claim was summarised by Ward CJ in Eq in Findex Group Ltd v iiNet Ltd [2019] NSWSC 1198. I gratefully adopt her Honour’s summary which was as follows:

[3]   The plaintiffs (Findex Group Ltd (Findex), its managing director, and two of its senior officers) commenced proceedings in this Court on an ex parte basis in September 2016 (2016/00271090) seeking preliminary discovery; in essence, to ascertain the identity of the publisher of various allegedly defamatory publications. The plaintiffs obtained orders for preliminary discovery from McDougall J on 13 September 2016, as a result of which they ascertained that, as they had suspected, it was Mr McKay who had anonymously published those matters (using a false name). Mr McKay is a former (and obviously, by reference to his communications the subject of the present application, disgruntled) employee of Findex.

[4]    The plaintiffs then sought (and on 16 September 2016 obtained), again on an ex parte basis, search orders pursuant to which documents were seized from Mr McKay. Mr McKay objected to access being obtained by the plaintiffs to various of the documents that had been obtained under the search orders (both on the basis of confidentiality and, in respect of some of the seized documents, that they did not fall within the terms…