Warpforge Limited v Gorecki - [2022] WASC 435

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   WARPFORGE LIMITED -v- GORECKI [2022] WASC 435
CORAM:   KENNETH MARTIN J
HEARD:   21 OCTOBER 2022
DELIVERED          :   13 DECEMBER 2022
FILE NO/S:   CIV 1994 of 2021
BETWEEN:   WARPFORGE LIMITED
First Plaintiff
GRANT CHRISTOPHER REYNOLDS
Second Plaintiff
AND
MARCIN JANUSZ GORECKI
Defendant
MARCIN JANUSZ GORECKI
Plaintiff by counterclaim
AND
WARPFORGE LIMITED
First defendant by counterclaim
GRANT CHRISTOPHER REYNOLDS
Second defendant by counterclaim

Catchwords:

Defamation - Pleadings - Strikeout of proposed defence minute - Leave required - Some defence amendments opposed - Pleas of truth or substantial truth to alternate imputations - Interlocutory rulings

Legislation:

Defamation Act 2005 (WA)

Result:

Leave refused to amend certain paragraphs of minute of amended defence pleading
Special costs orders made on prior application not pursued

Category: B

Representation:

Original Action

Counsel:

First Plaintiff	:	Mr C Chenu
Second Plaintiff	:	Mr C Chenu
Defendant	:	Mr T Lettenmaier

Solicitors:

First Plaintiff	:	Steedman Stagg Lawyers
Second Plaintiff	:	Steedman Stagg Lawyers
Defendant	:	Forbes Kirby

Counterclaim

Counsel:

Plaintiff by counterclaim	:	Mr T Lettenmaier
First defendant by counterclaim	:	Mr C Chenu
Second defendant by counterclaim	:	Mr C Chenu

Solicitors:

Plaintiff by counterclaim	:	Forbes Kirby
First defendant by counterclaim	:	Steedman Stagg Lawyers
Second defendant by counterclaim	:	Steedman Stagg Lawyers

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

Buckeridge v Walter [2010] WASCA 134
Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219
West Australian Newspapers v Elliott [2008] WASCA 172; (2008) 37 WAR 387

KENNETH MARTIN J:

I am dealing with an opposed application made by the defendant seeking leave to file what would be a further amended defence and amended counterclaim in this action, responding to the statement of claim ('SOC') of the plaintiffs filed 2 March 2022 (folio 6).
Pursuant to orders 1 through 5 of my orders of 7 September 2022 (folio 36), certain paragraphs within the defendant's then defence and counterclaim filed 3 June 2022 were struck out. Under order 6 of those orders there was, however, leave to replead on the basis that an application for leave be made accompanied by a minute of proposed amendments - in respect of paragraphs struck out and sought to be repleaded. In the event that the repleaded amendments submitted under a minute were opposed, I had programmed a timetable for an exchange of submissions between the parties with a view to resolving those issues at a special appointment, if necessary.
Essentially, that course has ensued by reference to a first iteration of a minute of proposed further amended defence and amended counterclaim filed 30 September 2022. That minute, however, has now been overtaken and leave to amend was ultimately sought by the defendant in accord with a substituted minute of proposed further amended defence and amended counterclaim ('Minute') filed 6 October 2022 (folio 46).
Various tranches of written submissions have been filed and exchanged as between the plaintiffs' and the defendant's lawyers in the lead-up to the appointment hearing…

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 Warpforge Limited v Gorecki

Details

AGLC: Warpforge Limited v Gorecki [2022] WASC 435
Case: [2022] WASC 435
Decision Date

CaseChat Overview and Summary

The Supreme Court of Western Australia was asked to decide whether the defendant in a defamation case, Marcin Janusz Gorecki, could amend his defence and counterclaim in response to a statement of claim filed by the plaintiffs, Warpforge Limited and Grant Christopher Reynolds. The plaintiffs had brought the action against Gorecki, alleging defamation arising from publications made by him. The defendant had previously sought leave to amend his defence and counterclaim, but certain paragraphs were struck out by the court. The defendant then sought further leave to amend the struck out paragraphs and add new pleas.

The court considered whether the proposed amendments and new pleas were acceptable. The court found that some of the proposed amendments, such as pleas of truth or substantial truth to alternate imputations, did not meet the legal criteria. For example, the court found that a plea that the plaintiff was "manipulative" could not be supported by evidence of a single incident. The court also found that some of the proposed amendments were unclear or "embarrassing" as they did not precisely identify the conduct relied upon.

However, the court did allow some of the proposed amendments, such as a plea that the plaintiff was a "liar", on the basis that it was for the triers of fact to decide whether the particulars provided were sufficient to justify the plea.

The court also considered the plaintiffs' application for special costs orders beyond the usual scale limits. The court found that the scale limits for certain items, such as chambers work, were likely inadequate given the complexity and importance of the issues that were to be raised. The court therefore varied the scale limit for chambers work to $30,000.

In summary, the court refused leave to amend certain paragraphs of the defendant's defence and counterclaim, but allowed some other proposed amendments. The court also varied the scale limit for certain costs to allow for special costs orders beyond the usual scale limits.

Orders