Williams v Melky

Case [2011] NTSC 77

Williams v Melky [2011] NTSC 77

PARTIES:   JOHN RUSSELL WILLIAMS

v

ELI MELKY

TITLE OF COURT:   SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION:   SUPREME COURT OF THE TERRITORY EXERCISING TERRITORY JURISDICTION

FILE NO:   144 OF 2010 (2103171)

DELIVERED:   29 SEPTEMBER 2011

HEARING DATES:   25 JULY 2011

JUDGMENT OF:   MASTER LUPPINO

CATCHWORDS:

Practice and Procedure – Application to strike out Statement of Claim pursuant to r 23.02 – Appropriate test to apply.

Defamation – Whether alleged imputation is capable of being conveyed – Requirements of pleadings in defamation cases - Whether a pleading is embarrassing – Extent of specificity required in pleadings in defamation cases.

Defamation Act ss 18, 33
Supreme Court Rules 13.02, 23.01, 23.02, 23.04, 36.03, 46.04, 48.12

Matzat v The Gove Flying Club Inc & Ors(1994) NTSC 17.
General Steel Industries v Commissioner for Railways(NSW) & Ors(1964) 112 CLR 125.
Jones v Skelton [1964] NSWR 485.
Chapman & Chapman v Australian Broadcasting Corporation [2000] SASC 146.
Farquhar v Bottom & Anor [1980] 2 NSWLR 380.
Lewis v Daily Telegraph Ltd [1964] AC 234.
Northern Territory of Australia v John Holland Pty Ltd & Ors (2008) NTSC 4.
Favell & Anor v Queensland Newspapers Pty Ltd [2004] QCA 135.
Polly Peck (Holdings) Plc v Trelford [1986] 2 WLR 845.
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148.
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
Morosi v Mirror Newspapers Ltd (1977) 2 NSWLR 749.
Singleton v John Fairfax & Sons, unreported, 20 February 1980, New South Wales Supreme Court, Hunt J.
Munro v Coyne [1990] WAR 333.
Triggell v Pheeny (1951) 82 CLR 497.
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44.

REPRESENTATION:

Counsel:

Plaintiff:   Mr Goldsmith

Defendant:   Mr Roper

Solicitors:

Plaintiff:   De Silva Hebron

Defendant:   Halfpennys Lawyers

Judgment category classification:    B

Judgment ID Number:   LUP1108

Number of pages:   20

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Williams v Melky [2011] NTSC 77

No. 141 of 2010 (21043171)

BETWEEN:

JOHN RUSSELL WILLIAMS

Plaintiff

AND:

ELI MELKY

Defendant

CORAM:     MASTER LUPPINO

REASONS FOR DECISION

(Delivered 29 September 2011)

  1. This application by the Defendant seeks orders striking out the Statement of Claim and in the alternative for particulars to be provided.

  2. The Summons specifies that the application is made pursuant to Rule 23.02 of the Supreme Court Rules (“the Rules”). That Rule provides:-

    23.02 Striking out pleading

    Where an endorsement of claim on a writ or originating motion or a pleading or a part of an endorsement of claim or pleading:

    (a)     does not disclose a cause of action or defence;

    (b)     is scandalous, frivolous or vexatious;

    (c)     may prejudice, embarrass or delay the fair trial of the proceeding; or

    (d)     is otherwise an abuse of the process of the Court,

    the Court may order that the whole or part of the endorsement or pleading be struck out or amended.

  3. The…

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Williams v Melky [2011] NTSC 77
Case
[2011] NTSC 77
Decision Date

CaseChat Overview and Summary

Williams v Melky was a case before the court where the plaintiff, Williams, sought to recover damages for defamation against the defendant, Melky. The dispute centred on whether the defendant's failure to make an offer to make amends could be considered in assessing the damages for defamation. The court was required to decide whether the alleged imputation was capable of being conveyed and whether the pleadings in the defamation case were sufficient. Specifically, the court had to determine if the pleadings were embarrassing and the level of specificity required in defamation pleadings.

The court examined whether the plaintiff's pleadings adequately supported the claim for aggravated damages due to the defendant's failure to make an offer to make amends. The court referred to the principle established in Triggell v Pheeny, which held that a defendant is entitled to defend proceedings where a bona fide and justifiable defence exists. Additionally, the court considered the relevance of section 18 of the Act, which prevents the admission of evidence related to offers to make amends in legal proceedings. The court held that the plaintiff could not rely on the defendant's failure to make an offer as it did not meet the threshold for pleadings in defamation cases. The court concluded that the particulars in the Statement of Claim were liable to be struck out under Rule 23.02(a).

In light of the court's reasoning, the court struck out the relevant parts of the Statement of Claim. The court found that the particulars in sub-paragraph 4 E of the Statement of Claim, when read with paragraphs 2(a) and (b) of the particulars, did not sufficiently support the claim for aggravated damages. The matters in paragraph 2(c) of the particulars were deemed inadmissible as they were akin to statements made at a settlement conference. Therefore, the court ruled that these parts of the pleadings were not available for trial.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

Mr Roper referred me to two authorities. Firstly, Triggell v Pheeny,[24] a High Court decision which held that a Defendant was entitled to defend proceedings where a bona fide and justifiable defence existed. Mr Roper argued that the Defendant’s conduct of a defence could only result in aggravated damages if the defence lacked bona fides, was improper or was otherwise unjustified. Secondly he referred to Carson v John Fairfax & Sons Ltd[25] which he cited as an instance of the numerous authorities for the principle that the failure to make an offer to make amends is a matter which goes to question of mitigation and not a matter which can properly be said to increase the injury to the Plaintiff. Lastly, Mr Roper submitted that in any event, the Plaintiff could not rely on those matters by reason of section 18 of the Act. That section provides:-18 Inadmissibility of evidence of certain statements and admissions(1) Evidence of any statement or admission made in connection with the making or acceptance of an offer to make amends is not admissible as evidence in any legal proceedings (whether criminal or civil).(2) Subsection (1) does not prevent the admission of evidence in any legal proceedings in order to determine:(a) any issue arising under, or relating to the application of, a provision of this Division; or(b) costs in defamation proceedings. The Plaintiff submits that this is a matter of argument on the law and should be left for trial. Mr Goldsmith argues also that the objection of the Defendant based on section 18(1) of the Act is misconstrued. He submits the effect of section 18 is that any statement or admission made in connection with the making or acceptance of an offer to make amends (emphasis added) is not admissible whereas what the Plaintiff relies on is the Defendant’s failure to make an offer to make amends (emphasis also added). Mr Goldsmith submits therefore that section 18(1) does not render this inadmissible. I do not agree with Mr Goldsmith’s interpretation. In any case, it overlooks the effect of the High Court authority Mr Roper relied on. Absent the Plaintiff pleading facts which supports an increase in harm, that aspect cannot proceed to trial as it is not shown to be available on the pleadings. As things currently stand the particulars in sub-paragraph 4 E of the Statement of Claim, read in conjunction with paragraphs 2(a) and (b) of the particulars, are liable to be struck out under Rule 23.02(a). The matters in paragraph 2(c) of the particulars go to the nature of the material which forms part of the settlement conference. It is of the same effect as if it was a statement made at the settlement conference. It is my view that is rendered inadmissible by the provisions of Order 48.12(8) of the Rules. That provides as follows:-48.12 Settlement conference (8) Except to prove that a settlement was reached between the parties and the terms of the settlement, evidence of things said or admissions made at a settlement conference is not admissible in either the proceeding or a court without the consent of those parties.

Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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