Wilson v Basson - [2019] NSWSC 1449

Supreme Court

New South Wales

Medium Neutral Citation: Wilson v Basson [2019] NSWSC 1449
Hearing dates: 18 October 2019
Date of orders: 21 October 2019
Decision date: 23 October 2019
Jurisdiction: Equity
Before: Slattery J
Decision:
Plaintiff/cross-defendant’s strike out motion is dismissed. Order that the plaintiff/cross-defendant pay the defendant/cross-claimant’s costs of the strike out motion. The plaintiff/cross-defendant’s motion to amend is declined but the plaintiff/cross-defendant is granted leave to circulate a further proposed amended statement of claim. The plaintiff/cross-defendant is ordered to pay the defendant/cross-claimant’s costs of the motion for leave to amend.

Catchwords:
PRACTICE AND PROCEDURE – motions – costs – plaintiff/cross-defendant seeks to strike out part of a cross claim – plaintiff/cross-defendant does not wish to proceed with her strike out motion – consensus as to outcome – argument as to costs – whether costs should lie where they fall – whether either party has conducted herself unreasonably, or whether one or other party was certain to succeed.
PRACTICE AND PROCEDURE – amendment of pleadings – plaintiff brings motion for amendment to statement of claim – new allegations of oral defamation to be introduced by the proposed amendment – whether the proposed amendments sufficiently identify the defamatory words alleged to have been spoken and the occasions upon which the defamatory words were said and the persons responsible for them – whether the amendments should be allowed.
Legislation Cited: Limitation Act 1969, s 14B
Uniform Civil Procedure Rules 2005, r 15.19
Civil Procedure Act 2005, ss 22, 56
Cases Cited: Australian Securities Commission v Aust-Home Investments Limited (1993) 44 FCR 194
Baker v Martin [2014] VSCA 302
Collins v Jones [1955] 1 QB 564
Gumina v Williams (No. 1) (1990) 3 WAR 342
Martech International Pty Ltd v Energy World Corp Ltd [2004] FCA 1470
Oxford Funding Pty Ltd v Oxford Asia Pacific Investments Pty Ltd (No. 2) [2006] FCA 1542
Pollack v Harris [2001] NSWSC 852
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
Tournier v National Provincial and Union Bank of England [1923] All ER Rep 550
Texts Cited: TK Tobin and NG Sexton, Australian Defamation Law
in Practice (1991, Butterworths), at [25,075].
Category: Procedural and other rulings
Parties: Applicant: Jessica May Wilson
Respondent: Mary Jane Basson
Representation:
Counsel:
Applicant: E. Young
Respondent: D. Pritchard SC; T. Senior
Solicitors:
Applicant: M Cakic – MC Lawyers
Respondent: D.R.S Creais - Bartier Perry

File Number(s): 2018/393886
Publication restriction: No

Judgment

Jessica Wilson and Mary Jane Basson were once close. Ms Basson, a retired barrister with an interest in horses took Ms Wilson in to work on her property. There Ms Wilson assisted on the property, including in the care of Ms Basson's horses. This suited Ms Wilson, a younger woman who needed accommodation and financial support, and who also had equestrian interests.
But Ms Wilson and Ms Basson fell out. The reasons in their relationship break down are far less clear than the accusations that they now level at one another in…

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 Wilson v Basson

Details

AGLC: Wilson v Basson [2019] NSWSC 1449
Case: [2019] NSWSC 1449
Decision Date: 23 October 2019

CaseChat Overview and Summary

Wilson v Basson involved a dispute between the plaintiff, Wilson, and the defendant, Basson. The plaintiff initially brought an action against the defendant and later sought to strike out part of a cross-claim, which the plaintiff no longer wished to pursue. The central issue before the court was whether the plaintiff was entitled to costs after abandoning her strike-out motion and whether either party had acted unreasonably or if one party was certain to succeed. Additionally, the court had to determine if the plaintiff could amend her statement of claim to include new allegations of oral defamation and whether the proposed amendments sufficiently identified the defamatory words and the relevant parties.

The court found that the plaintiff had not acted unreasonably in abandoning her strike-out motion as both parties had reached a consensus on the outcome of the motion. The court further held that costs should lie where they fall and that neither party had acted unreasonably or was certain to succeed. Regarding the amendment of the statement of claim, the court found that the proposed amendments did not sufficiently identify the defamatory words, the occasions on which they were said, or the persons responsible for them. The court ruled that the amendments should not be allowed as they did not meet the necessary standards for clarity and specificity.

The final orders of the court included the dismissal of the plaintiff's motion to strike out part of the cross-claim without costs to either party. Furthermore, the court denied the plaintiff's motion to amend her statement of claim to include the new allegations of oral defamation. The plaintiff was ordered to pay the defendant's costs of the motion to amend the statement of claim.

Orders