Barrow v McLernon & Anor [2012] VSC 134 (12 April 2012):Discovery, use of discovered documents in subsequent proceedings, use discovered documents to amend pleadings, ss 26 and 27 of Civil Procedure Act 2010 & s35 Defamation Act 2005

April 12, 2012

Today Justice Beach, in Barrow v McLernon & Anor [2012] VSC 134 handed down a very interesting and useful decision regarding discovery and the operation of section 27 of the Civil Procedure Act. It is an appeal from a decision of an Associate Justice.


The Plaintiff is suing Hugh McLernon and IMF (Australia) Limited for defamation arising out of the publication on 30 May 2011 of an email and two pdf attachments [1]. The Plaintiff wishes to use documents discovered in this proceeding in support of issuing other proceedings, also a cause of action in defamation [2].  Five documents discovered constitute Read the rest of this entry »

Defamation, extent of publication, twitter; Chris Lance Cairns v Lalit Modi [2010] EWHC 2859 (QB)

November 22, 2010

The High Court sitting in the Queens Bench division recently rejected an application by the defendant, Modi, to order a trial on the extent to which the tweet the subject of  the action was read in jurisdiction.  The Defendant applicant argued that issue was relevant to both liabilityand damages. The  High Court ruled that numbers of readers alone was not decisive.


An expert giving evidence on behalf of Modi estimated that only 35 people viewed the message.  The Defendant argued that, as in Yousef Jameel and Dow Jones , the damage from any libel case would be so small as to be not warrent proceeding and so any case would be an abuse of the court process.

There was conflicting evidence as to extent of publication (see [19][ 22]). Cairns’ expert estimated the audience for the tweet to be around 100, by looking at the number of Modi’s followers in the court’s jurisdiction. While Cairn’s counsel accepted that not all of Modi’s followers would have seen the tweet directly, it was argued that some people would have received a communication of it by other means.

Decision and reasoning

Mr Justice Tugendhat found that the number of people who saw the message was only one of a number of considerations in a defamation case. He found at  [34]:

In any event, the Jameel type of abuse of process does not depend on numbers alone.  [Cairns] has resided in this jurisdiction in the past, and expects to return to live here again. There have been recent cases in which the court has declined to strike out claims based on a direct communication to a single publishee.

Mr Justice Tugendhat said Read the rest of this entry »