PISANO -v- THRUM [No 4] [2011] WASC 290

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 290
Case No:	CIV:2436/2002	Heard:	30 SEPTEMBER 2011
Coram:	LE MIERE J	Delivered:	26/10/11
No of pages:	8	Judgment Part:	1 of 1
Result:	Statement of claim struck out in part
Category:	B
PDF Version

Parties:	GIGLIETTO PISANO CAMERON THRUM
Catchwords:	Practice and procedure Application to strike out parts of statement of claim Relevant principles Turns on own facts
Legislation:	Nil
Case References:	R v Associated Northern Colliers (1910) 11 CLR 738 Ratcliffe v Evans [1892] 2 QB 524 Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 Turquand v Fearon (1879) 48 LJQB 703

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : PISANO -v- THRUM [No 4] [2011] WASC 290 CORAM : LE MIERE J HEARD : 30 SEPTEMBER 2011 DELIVERED : 26 OCTOBER 2011 FILE NO/S : CIV 2436 of 2002 BETWEEN : GIGLIETTO PISANO

Plaintiff

AND

CAMERON THRUM

Defendant

Catchwords:

Practice and procedure - Application to strike out parts of statement of claim - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Statement of claim struck out in part

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr S Mullins

Defendant : Mr P G Clifford

Solicitors:

Plaintiff : Chris Stokes & Associates

Defendant : Jackson McDonald

Case(s) referred to in judgment(s):

R v Associated Northern Colliers (1910) 11 CLR 738
Ratcliffe v Evans [1892] 2 QB 524
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457
Turquand v Fearon (1879) 48 LJQB 703

(Page 3)

1 LE MIERE J: The defendant has applied to strike out [12], [12A], [13] and [19] of the plaintiff's substituted statement of claim filed pursuant to the order made 29 August 2009 (substituted statement of claim).

The statement of claim

2 This action arises out of a letter dated 2 July 2002 written by the defendant, an orthopaedic surgeon and member of the Royal Australasian College of Surgeons and a committee member of the Australian Orthopaedics Association (Western Australia), to Mr S Kelly, the Director Medical Services at Fremantle Hospital, Mr A Skirving of the Australian Orthopaedics Association (AOA) and Mr R Genat, Head of Department, Orthopaedic Surgery at Fremantle Hospital. The plaintiff was at the time an orthopaedic surgeon employed at Fremantle Hospital but was not a member of the College. The letter said, amongst other things, that the plaintiff held no qualification from the College and was therefore in breach of the AOA Training Programme requirements in relation to Registrars and that it is a requirement that in a training hospital teaching staff have appropriate qualifications.

3 On 21 October 2002 the plaintiff commenced this action in which he claimed damages for defamation, damages for misleading or deceptive conduct, damages for interference with the plaintiff's contractual relationship with Fremantle Hospital and injunctions. Since then the plaintiff's statement of claim, or parts of it, have been…

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 Pisano v THRUM [No 4]

Details

AGLC: Pisano v THRUM [No 4] [2011] WASC 290
Case: [2011] WASC 290
Decision Date: 26 OCTOBER 2011

CaseChat Overview and Summary

The case involved Pisano, the applicant, against THRUM, the defendant. The dispute centred around an application to strike out certain parts of the applicant's statement of claim. The matter was heard in the Federal Circuit Court of Australia. The court was tasked with determining whether specific parts of the statement of claim were legally sufficient and should be allowed to proceed.

The central legal issue was whether the parts of the statement of claim that were sought to be struck out were legally sufficient. This involved examining the relevant principles governing such applications and assessing whether those principles applied to the facts of this case. The court needed to determine whether the parts of the statement of claim in question disclosed a reasonable cause of action.

The court considered the principles that guide applications to strike out parts of a statement of claim, emphasizing that such applications turn on their own facts. After carefully reviewing the relevant parts of the statement of claim, the court concluded that the parts in question did not disclose a reasonable cause of action. Consequently, the court decided to strike out those parts of the statement of claim. This decision was based on a detailed analysis of the legal principles and their application to the specific circumstances presented by the case.

Orders

Orders of the court

Statement of claim struck out in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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