Toben v Mathieson; Toben v Nationwide News Pty Ltd

The plaintiffs, Toben, sought leave to amend their statements of claim against the defendants, Mathieson and Nationwide News, to include causes of action under the Australian Consumer Law. The basis of the claims was comments made by Mathieson, a politician, to a journalist, which were subsequently published by Nationwide News. Toben alleged that these comments were misleading and deceptive conduct under the Australian Consumer Law and defamatory. The defendants objected to the leave to amend on the basis that the claims were statute-barred and that the defamation claim was not in the proper form as it contained rhetorical questions.

The court had to decide whether the comments made by the politician could be considered conduct in trade or commerce and whether Toben should be granted leave to amend their statements of claim. The court also needed to address the defendants' objections to the form of the defamation claim and whether the claims were statute-barred. The court considered the nature of the comments and whether they could be seen as conduct in trade or commerce. It found that the comments were made in a political context and did not have a commercial purpose or effect, and therefore did not amount to conduct in trade or commerce.

The court also considered whether Toben should be granted leave to amend their statements of claim. The court found that the claims were not statute-barred and that the form of the defamation claim was not a valid objection. The court granted Toben leave to amend their statements of claim to include the causes of action under the Australian Consumer Law and the defamation claim. The defendants' objections to the leave to amend were dismissed. The court found that the comments made by the politician did not amount to conduct in trade or commerce and that Toben should be granted leave to amend their statements of claim.