Statement of Claim Part VIII : Franchise Central (Australia) Pty Ltd & Ors v Fairfax Media Publications Pty Ltd [2011] VSC 379

The plaintiffs provided consultancy services in relation to franchising. In January 2008, the defendants published an article in the BRW “From building to bail out”, and a further article in February 2008, “ASIC acts on franchise accusations”.

The plaintiffs started the case in May 2008 and the matter had been fixed for trial on 22 February 2011. Thirteen days before that, the plaintiffs sought to amend their claim. The trial started and a lot of court time was spent on the pleadings. On day 4, the trial was adjourned for the parties to amend. Since then, the plaintiffs delivered 2 further amended statements of claim and a further draft, which was the 8th statement of claim.

The plaintiffs said there had been only 4 statements of claim, and they had just been trying to appease the defendants, either way, Justice Beach said no great regard had been had to determining the dispute economically or efficiently. No surprise there.

So it was left to the plaintiffs to seek leave to file and serve Statement of Claim Part VIII. Justice Beach did not grant leave, because some of the imputations were too vague, but made a few remarks along the way on the following imputations:

  • The first plaintiff dishonestly advertised a gold plating business for acquisition that was defunct: IN.
  • It was reasonably suspected that the second plaintiff was dishonestly using a false name to assist her brother in avoiding detection of his bankruptcy in circumstances where he was illegally de facto directing the plaintiff: MUST BE RECAST.
  • It was reasonably suspected that the third plaintiff was dishonestly using a false name to assist in concealing his bankruptcy while he was acting illegally in de facto directing the plaintiff: MUST BE RECAST.
  • As the director of the first plaintiff, she had committed or permitted it to act or be involved in the matters referred to in [A](a) to [A](c) inclusive hereof: MUST BE RECAST: DO NOT ROLL IN OTHER REFERENCES INTO A SINGLE PLEA.
  • She dishonestly used a false name to assist her brother in avoiding detection of his bankruptcy in circumstances where he was illegally de facto directing the first plaintiff: IN.
  • As a de facto director of the first plaintiff, he had caused or permitted the first plaintiff to be involved in:
  1. the conduct of the subject of ASIC’s alleged investigation set forth in sub-paragraph 12[A](a) hereof;
  2. the conduct the subject of ASIC’s alleged investigation set forth in sub-paragraph 12[A](b) hereof;
  3. the conduct of the first plaintiff in respect of the lack of services and support set forth in sub-paragraph 12[A](c) hereof.

OUT. VAGUE AND AMBIGUOUS.

  • He dishonestly used a false name to assist in concealing his bankruptcy whilst he was acting illegally in de facto directing the first plaintiff: IN.

These are the games that defamation lawyers play. But it has to be said about imputations: do not roll in references to other paragraphs and the simpler and the shorter – the better.

As for this case …. on to the next trial.

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