FOWLER v STATE OF NEW SOUTH WALES AND ANOR [1994] NSWCA 98

FOWLER v STATE OF NEW SOUTH WALES SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

KIRBY P, CLARKE and POWELL JJA 3 February 1994, 3 February 1994

[1994] NSWCA 98

DEFAMATION — pleading — need for precision and avoidance of embarrassment — action struck out as failing to disclose the course of action — held: Leave to appeal refused — leave to re-plead granted.

DEFAMATION — pleading — need for clarity and certainty — need to avoid embarrassment — plaintiff sues State and Barristers' and Solicitors' Admission Board for alleged defamation in publishing a letter indicating that he had failed an examination — the primary judge (Levine J) strikes out his statement of claim as disclosing no cause of action in defamation — on summons for leave to appeal — held (dismissing the summons); (1) The Statement of Claim was embarrassing and properly struck out; and (2) The plaintiff should have leave to re-plead in proper form.

Kirby P This is an application for leave to appeal to this Court. It began before the Court on Monday. It has continued before the Court today although in the absence of the claimant, Mr Fowler. Mr Fowler notified the Court that he did not wish to be present today or could not be present. Written submissions have been provided by him to the Court and considered by it.

In the Common Law Division of the Supreme Court Mr Fowler has sued the State of New South Wales and the Barristers' and Solicitors' Admission Boards. He apparently claims that he has been defamed by the Board(s) for treating him as having failed an examination. Put broadly, he says that this conclusion was communicated to others in a letter "falsely and maliciously". He claims that the Board and the State are liable to him for the damage which he has suffered as a consequence. Levine J struck out his statement of claim. He challenges that order by a summons seeking leave to appeal against his Honour's strike out order.