PENTHOUSE PUBLICATIONS LTD v McWILLIAM [1991] NSWCA 222

PENTHOUSE PUBLICATIONS LTD v McWILLIAM

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

PRIESTLEY, MEAGHER JJA and WADDELL AJA 19 October 1990, 14 March 1991 [1991] NSWCA 222

APPEAL FROM: LUSHER AJA — COMMON LAW DIVISION PLEADING — application under Pt13 RS5 for final dismissal of Statement of Claim — approach to be taken to such applications. CAUSES OF ACTION — on a broad view of allegations in Statement of Claim two causes of action not so clearly bound to fail as to justify final dismissal — one cause of action based on Beaudesert Shire Council v Smith (1966) 120 CLR 145 — the other on conspiracy.

Priestley JA In August and September of 1982 events took place which led to the filing on 14 July 1988 of the first statement of claim in these proceedings. The defendants named in it moved for summary dismissal or that it be struck out. Master McLaughlin gave leave on 4 August 1989 for the filing of an amended statement of claim. On 8 February 1990 Master McLaughlin gave detailed reasons for his opinion that the amended statement of claim disclosed no reasonable cause of action. He ordered that the proceedings be dismissed. The plaintiffs appealed against his decision. The appeal was upheld by Lusher AJ who set aside the Master's order dismissing the proceedings; he indicated that the statement of claim, although in his opinion it disclosed a reasonably arguable cause of action, was in an unsatisfactory state from a pleading point of view, and granted leave to amend it within twenty-eight days. He said that the leave to amend was on a limited basis, but it is unnecessary to discuss what these limitations were in light of what subsequently happened.

The defendants sought leave to appeal against Lusher AJ's orders. The application came before a court comprising Kirby P and Clarke and Meagher JJA. In the course of argument there was discussion concerning deficiencies in the statement of claim as it then stood. The court was inclined to think that none of the causes of action which counsel for the plaintiffs indicated the plaintiffs wished to pursue had been pleaded in the statement of claim. The President asked counsel for the plaintiffs why it was not appropriate for the court to give leave to appeal, list the appeal expeditiously and then expect the plaintiffs upon the hearing of the appeal to present their "very best statement of claim" on the clear understanding they would be out of court if not then able to show an arguable cause of action. Some discussion followed after which the court decided to do what the President had suggested. His final words before the making of the orders were that "When the appeal is returned we expect the Amended Statement of Claim to be in the possession of the respondents so that it can be placed before the court and it should be in such a form as sustains the cause of action, because