HER HONOUR: These are proceedings for injurious falsehood commenced by the plaintiff against Mr Adrian McRae. The present application is the defendant's application to have an amended statement of claim, filed on 17 September 2015, struck out. The plaintiff has had two previous opportunities to bring in an amended pleading. As recorded in my judgment published 18 September 2015, the proceedings came before me on 21 August 2015, when the plaintiff was represented by Mr Potter of counsel: see Ferrier v McRae [2015] NSWSC 1379. Mr Potter said he had only come just into the matter and wished to have an adjournment to pay attention to the form of the pleading.
On the next occasion, 18 September 2015, Mr Potter had evidently gone out of the matter and the plaintiff was represented by Mr Connell of counsel. Mr Connell also sought an adjournment in order to give some attention to the form of the pleading.
Each of those barristers is an experienced practitioner in this field. Either would have been more than able to bring the pleading into proper form. However, all that has happened since the commencement of the proceedings is that, as already noted, on 17 September 2015 an amended statement of claim was filed, evidently with all changes being made by the plaintiff personally. The only changes made to that pleading are that the plaintiff appears to have scored out in pen a number of the paragraphs. There are no additional paragraphs; the deletion of the paragraphs scored out has the result that the pleading makes less rather than more sense than it did before.
Ms Barnett, who appears for the defendant, has articulated in careful terms the difficulties with the existing pleading.
Three discrete sorts of allegation are made against Mr McRae in the pleadings. The first is a claim for injurious falsehood based on the contention that Mr McRae made remarks to directors of an entity known as Paynes Find Gold Limited as a result of which Mr Ferrier alleges a company of which he was the sole director and shareholder, MJF Mining Services WA Pty Limited, lost a lucrative contract.
The vices of the pleading of that claim are manifest. The principal difficulty is that the pleading of the representations allegedly made by Mr McRae to a director or directors of Paynes, set out in para 12 of the amended statement of claim, wholly fails to articulate a claim that can be understood by Mr McRae so as to enable him to meet the case. Mr Ferrier explained that the claim is based on emails and text messages which he has seen but which he does not have. He informed me that he has written to the directors concerned to obtain access to that material. Whether or not that is so, the existing pleading is inadequate.
Outside the terms of the pleading, there is a separate difficulty with the claim which is that the entire damages claim is premised on the proposition that Mr Ferrier was the sole beneficial shareholder of MJF Mining Services WA Pty Limited.
The defendant tendered an ASIC search which records that the company is now deregistered but, more importantly, that the former company details prior to deregistration are that Mr Ferrier was indeed the sole shareholder but that the 120 ordinary shares he held were not beneficially owned. Mr Ferrier has informed me that that is simply incorrect. His initial response to my question as to whether he understood what it meant to say that the shares were not beneficially owned was that he was not 100% sure as to what it meant, but he appears confident that those shares were held outright by him in his own name and for his own benefit. Having regard to the inconsistency of that position with the corporate records, that is an issue which, in my view, is appropriately addressed by a requirement for evidence.
The second and third claims in the amended statement of claim each allege that Mr McRae provided information to two separate media organisations and that, as a result, each of those media organisations published information about Mr Ferrier which was false. The pleading of those two claims is plainly unsatisfactory.
The plaintiff does not plead the content of any publication by the defendant to the media organisations in question save by annexing copies of the articles concerned. In each case, he says the statements made by the defendant to the journalists "were reflected in" the relevant publications. An examination of the publications themselves does not bear out that allegation or, indeed, even hint at any suggestion of Mr McRae's having participated in the publication of the articles or provided any information to the journalists for their publication.
In all the circumstances, I am satisfied that the whole of the amended statement of claim should be struck out as failing to disclose any reasonable cause of action. Ms Barnett opposed the plaintiff having any leave to re-plead and submitted alternatively that at most leave should be confined to re-pleading the Paynes Find Gold allegation.
There would appear to be real difficulties with that claim, not least among which is the apparent difficulty of establishing any entitlement to damages (if Mr Ferrier was not a beneficial owner of the shares he held in the named company) but also because the prospect of his obtaining access to the documents by which Mr McRae is alleged to have made the representations to the directors of Paynes Find Gold (otherwise than by compulsory process) would appear to be optimistic.
However, since Mr Ferrier is representing himself today and owing to the fact that the proceedings were commenced only some months ago, I am concerned it would be too draconian a sanction to strike out the pleading without leave to re-plead that claim at this stage. I do, however, having regard to the number of opportunities Mr Ferrier has had, think it appropriate to make a self-executing order at this point.
For those reasons the orders are:
1. That the amended statement of claim of filed 17 September 2015 be struck out.
2. That the plaintiff have leave to re-plead, such leave being confined to re-pleading the claim presently appearing under the heading "Paynes Fine Gold" and the further heading "The Paynes Allegations" but not extending to the claims presently appearing under the headings "The Allegations to Adam Shand" and "The Allegations to the Australian Broadcasting Corporation".
3. I direct the plaintiff to file and serve any further amended statement of claim in accordance with order 2 within fourteen days of today, following which the proceedings will automatically be dismissed.
4. I direct the plaintiff within fourteen days of today to file and serve an affidavit sworn by him personally explaining the facts, matters and circumstances on the strength of which he contends that the ASIC record to the effect that his shares in MJF Mining Services WA Pty Limited were not beneficially owned is wrong.
5. I order the plaintiff to pay the defendant's costs of today's argument.
ADDENDUM: After determining the present application, I heard argument in separate proceedings commenced by Mr Ferrier against Nationwide News Pty Ltd. In those proceedings, Mr Ferrier made certain statements the content of which suggested that he may be operating under a legal incapacity and should accordingly be conducting those proceedings through a tutor in accordance with r 7.14 of the UCPR. Those proceedings were stood part-heard on the understanding that Mr Ferrier will address that issue in the meantime. It will be necessary to address the same issue in these proceedings.
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Decision last updated: 16 October 2015