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. In my view leave to appeal should be refused. Mr Fowler relied on the suggested inadequacy of the reasons of Levine J. Although the reasons given by his Honour are brief, in my opinion they adequately establish the grounds upon which his Honour acted. Levine J's reasons thus reached the standard required. See Soulemezis v Dudley (Holdings) Pty Ltd (1987) 10 NSWLR 247 (CA), 273, 281. The other matters relied upon by Mr Fowler were, in part at least, matters which would not be in any serious contest (namely that an application for summary disposal or for orders of the kind that Levine J made must be acceded to only in a clear case; that the onus is upon the party seeking such relief to make out a case for it; and that a party should have leave to amend where that is appropriate). There is no suggestion that Levine J was unaware of these familiar principles or that he failed to approach his decision bearing them in mind. Counsel for the State of New South Wales indicated to the Court that, whatever doubt might arise out of the reasons given and precise orders made by Levine J, the State would not be contending - if Mr Fowler were to return to the Supreme 2 UNREPORTED JUDGMENTS Court with a pleading in proper form which was not embarrassing - that by reason of Levine J's orders Mr Fowler was forever out of court. In other words, the State agreed that he should have leave to re-plead. That is inherent, as I take it, in what Levine J ordered, certainly as accepted by the opponents. It is the basis upon which I would approach the present summons. Accordingly, in proposing that the summons for leave to appeal should be dismissed, I do so upon the assumption that, if Mr Fowler can re-plead in proper form, he will be permitted to do so by the order of the Judge administering the relevant Practice List. Mr Fowler finally referred to what Lord Justice Denning said in Packer v Packer [1954] AC 15 (CA) at 22 concerning novel causes of action. Certainly, the cause of action upon which he is suing is, in its application to the State and the Boards here, novel. But it is not upon that basis that I am disposing of his summons for leave to appeal. It is simply on the basis that his pleading is not in an acceptable and clear form. The order which I propose is that the summons for leave to appeal be dismissed. Mr Fowler must pay the opponents' costs. Clarke JA I agree. Powell JA I, too, agree. Summons dismissed with costs. Counsel for the claimant: In person Solicitors for the claimant: In person Counsel for the opponent: D A Caspersonn Solicitors for the opponent: H K Roberts, State Crown Solicitor