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Saraceni v Mentha [No 2]

Saraceni v Mentha [No 2]

Case [2021] WASC 192 14 June 2021

Jurisdiction

Discovery & Disclosure

Abuse of Process

Res Judicata

Costs

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   SARACENI -v- MENTHA [No 2] [2021] WASC 192
CORAM:   KENNETH MARTIN J
HEARD:   25 MAY 2021
DELIVERED          :   14 JUNE 2021
FILE NO/S:   CIV 2734 of 2012
BETWEEN:   LUKE SARACENI
Plaintiff
AND
MARK MENTHA
First defendant
SCOTT LANGDON
Second defendant
KORDAMENTHA PTY LTD
Third defendant

Catchwords:

Defamation - Strikeout application - Amendments to long-standing pleaded popular/false innuendos - Subsequent objection to amendments as abuses of process - Truth defence implications - Other litigation decided by civil trial - Suggestion of amendment to avoid unstated repercussions of trial reasons

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
First defendant	:	Mr J MacLaurin SC
Second defendant	:	Mr J MacLaurin SC
Third defendant	:	Mr J MacLaurin SC

Solicitors:

Plaintiff	:	Bennett + Co
First defendant	:	Norton Rose Fulbright Australia
Second defendant	:	Norton Rose Fulbright Australia
Third defendant	:	Norton Rose Fulbright Australia

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

Batistatos v Roads and Traffic Authority NSW [2006] HCA 27; (2006) 226 CLR 256
PNJ v The Queen [2009] HCA 6; (2009) 83 ALJR
Rural Bank v Mammoth Investments [2019] WASC 409
Saraceni v Mentha [2013] WASC 95
UBS AG v Tyne [2018] HCA 45; (2018) 265 CLR 77
Victoria International Container Ltd v Lunt [2021] HCA 11
Walton v Gardiner [1993] HCA 77; (1993) 177 CLR 378
Westgem Investments Pty Ltd v Commonwealth Bank of Australia Ltd [No 6] [2020] WASC 302

KENNETH MARTIN J:

This is the defendants' application by chamber summons dated 9 December 2020 to strike out certain paragraphs within the plaintiff's most recent pleading of his statement of claim. This is the plaintiff's second further re‑amended statement of claim, amended without leave and filed on 2 December 2020 (the 2FREASOC).
There had been an earlier amendment to the plaintiff's pleading on 13 October 2020 (when the plaintiff filed an amended statement of claim (ASOC)). Some of the October amendments were, in effect, revised somewhat by the 2 December 2020 amendments under the 2FREASOC.
Prior to October 2020 the plaintiff's statement of claim had been unchanged since his amendments of 22 July 2016.
A previous interlocutory decision of mine in this same action delivered now over some eight years ago, had dealt with a number of interlocutory aspects of the then pleadings in this defamation action, which was commenced by writ some time ago on 18 October 2012: see Saraceni v Mentha [2013] WASC 95 (Saraceni v Mentha [2013]).
The state of the pleadings in the action looks to have remained static in the period after 2 September 2016 (when the defendants had filed an amended substituted defence (ASD)), until 13 October 2020 ‑ when the first of the two tranches of 2020 amendments made to the statement of claim pleading were effected.
Under the Rules of the Supreme Court 1971 (WA) (RSC), leave to amend a pleading…

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 Saraceni v Mentha [No 2]

Details

AGLC: Saraceni v Mentha [No 2] [2021] WASC 192
Case: [2021] WASC 192
Decision Date

CaseChat Overview and Summary

In the Supreme Court of Western Australia, the case of Saraceni v Mentha [No 2] involved a defamation action brought by Luke Saraceni against Mark Mentha, Scott Langdon, and Kordamentha Pty Ltd. The defendants applied to strike out certain paragraphs of the plaintiff's statement of claim, alleging that the amendments made without leave constituted an abuse of process and were not reasonably arguable. The court dismissed the application, finding that the amendments were reasonably arguable and did not amount to an abuse of process. The court also rejected the defendants' subsequent application for costs thrown away, finding that there was no evidence of wasted work.

In dismissing the interlocutory application by the defendants to strike out certain paragraphs of the plaintiff's statement of claim, the Court found that the amendments made without leave were reasonably arguable and did not amount to an abuse of process. The Court rejected the defendants' primary contention that the amendments were an attempt to circumvent adverse repercussions arising from a previous decision in another case. The Court also found that the amendments were not made in bad faith and did not prejudice the defendants' ability to defend the action. The Court further found that the amendments did not render the defendants' defence pleas unusable, and that any need for the defendants to revise their defence pleading would not necessarily result in wasted costs.

In rejecting the defendants' subsequent application for costs thrown away, the Court found that there was no evidence of wasted work attributable to the plaintiff's amendments to his statement of claim. The Court noted that the defendants had not demonstrated any level of wasted preparatory work, and that the costs incurred by the defendants in responding to the amendments were not wasted in the true sense. The Court found that the defendants' claims for costs thrown away were misconceived and dismissed the application with costs.

Orders