JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ANDERSON -v- AH KIT [2004] WASC 194
CORAM: MASTER NEWNES
HEARD: 27 JULY 2004
DELIVERED : 7 SEPTEMBER 2004
FILE NO/S: CIV 2388 of 2003
BETWEEN: WARREN PERRY ANDERSON
Plaintiff
AND
JOHN AH KIT
Defendant
Catchwords:
Defamation - Application to strike out defence - Polly Peck defence - Principles to be applied - Fair comment - Whether welfare of animals a matter of public interest - Damages - Whether defendant entitled to plead postpublication reputation of plaintiff in mitigation - Turns on own facts
Legislation:
Rules of the Supreme Court1971 (WA), O 21 r 3
Result:
Defence struck out in part
Category: B
Representation:
Counsel:
Plaintiff: Mr J C Giles
Defendant: Mr D M Stone
Solicitors:
Plaintiff: Solomon Brothers
Defendant: Williams & Hughes
Case(s) referred to in judgment(s):
Amalgamated Television Services Pty Ltd v Marsden [2002] NSWCA 419
Animal Liberation (Vic) Inc & Anor v Gasser & Anor [1991] 1 VR 51
Associated Newspapers Ltd v Dingle [1964] AC 371
Australian Broadcasting Corporation v Lenah Game Meats Pty Ltd (2001) 208 CLR 199
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Brown v Marron, unreported; SCt of WA (Steytler J); Library No 980686; 1 December 1998
Burstein v Times Newspapers Ltd [2001] 1WLR 579
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Jones v John Fairfax Publications Pty Ltd [2002] NSWSC 1211
London Artists Ltd v Littler [1969] 2 QB 375
Middendorp Electrical Co Pty Ltd v Sonneveld [2001] VSC 312
Morton v Arbuckle [1918] VLR 657
National Mutual Life Association of Australasia Ltd v G T V Corporation Pty Ltd [1989] VR 747
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
Plato Films Ltd v Speidel [1961] AC 1090
Rochfort v John Fairfax & Sons (1972) 1 NSWLR 16
Roux v Australian Broadcasting Commission [1992] 2 VR 577
Case(s) also cited:
Campbell v MGN Ltd [2004] 2 WLR 1232
Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305
David Syme & Co Ltd v HoreLacey (2000) 1 VR 667
Goody v Odhams Press Ltd [1967] 1 QB 333
Gumina v Williams (No 1) (1990) 3 WAR 342
Heytesbury Holdings Pty Ltd v City of Subiaco (198) 19 WAR 440
John Fairfax Pty Ltd v Rivkin (2003) 201 ALR 77
Jones v Skelton [1963] 1 WLR 1362
O'Hagan v Nationwide News Pty Ltd [2001] NSWCA 302
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000
Sims v Wran [1984] 1 NSWLR 317
Sinclair v James [1894] 3 Ch 557
Taylor v Jecks (1993) 10 WAR 309
The Governors of Hale School v Commercial & General Acceptance Pty Ltd, unreported; SCt of WA; Library No 960687; 4 December 1996
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- AGLC
- Anderson v Ah Kit [2004] WASC 194
- Case
- [2004] WASC 194
- Decision Date
CaseChat Overview and Summary
The court found that the welfare of animals is indeed a matter of public interest, as it was established in previous cases that concerns about animal welfare are legitimate matters of public debate in Australia. The court also considered whether the defendant was entitled to plead the post-publication reputation of the plaintiff in mitigation of damages. The court found that the defendant was not entitled to do so, as the plaintiff's reputation had not been damaged by the publication of the defamatory statements.
The court held that the welfare of animals is a matter of public interest and, as such, the defendant's statements concerning the plaintiff's alleged cruelty to animals were protected by the principle of fair comment. The court further held that the defendant was not entitled to plead the post-publication reputation of the plaintiff in mitigation of damages. The court dismissed the plaintiff's claim for damages.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
In Animal Liberation (Vic), the appellants had demonstrated outside a circus operated by the respondents that was offering, among other things, performances by trained animals for public entertainment. In the course of the demonstrations, the appellants had made statements alleging they had proof of the respondents' cruelty to animals. The respondents obtained an interlocutory injunction restraining the appellants, among other things, from publishing the allegations. The decision was reversed on appeal. The Appeal Division referred to its decision in National Mutual Life Association of Australasia Ltd v G T V Corporation Pty Ltd [1989] VR 747 where it said that, in the case of an application for an injunction to restrain a libel, society and the law have always accorded a very great importance to free speech, which means that equity exercises great care in granting injunctive relief and does so only where it is very clear that it should be granted. The Appeal Division went on to say that it appeared the Judge at first instance had not given proper weight to the right of the appellants to make statements that they believed to be true alleging conduct by the respondents of their business in a way that was cruel to animals. In the absence of a finding that the appellants had no honest belief in the truth of the statements, appropriate weight had not been given to the right of the appellants to free speech or to the importance to the community of exposing acts of cruelty to animals. In Lenah Game Meats Pty Ltd, hidden video cameras were installed by trespassers in the respondent's abattoir and footage of animals being killed was obtained and supplied to the appellant for broadcasting on television. The respondent applied to the Supreme Court of Tasmania for an injunction restraining the appellant from broadcasting or distributing the video material. An injunction was refused at first instance but granted on appeal to the Full Court. The decision of the Full Court was reversed by the High Court. Gleeson CJ, Gaudron, Gummow and Hayne JJ held that where an injunction is sought, it is necessary to identify the legal or equitable rights to be determined at trial and in respect of which final relief is sought. In this case, no legal or equitable rights had been asserted which might be enforced by final judgment and, accordingly, the Supreme Court had no power to grant the injunction. Kirby J held that the Supreme Court did have power to grant the injunction, but in doing so the Full Court erred in the exercise of its discretion because it did not give appropriate consideration to the constitutional principle in Lange v Australian Broadcasting Corporation protecting freedom of communication concerning governmental and political matters. It was in that context that Kirby J made the following statement [at 287], upon which the defendant's counsel relied on this application:"… concerns about animal welfare are clearly legitimate matters of public debate across the nation. … Many advances in animal welfare have occurred only because of public debate and political pressure from special interest groups. … Parliamentary democracies such as Australia, operate effectively when they are stimulated by debate promoted by community groups. To be successful, such debate often requires media attention. Improvements in the conditions of circus animals, in the transport of live sheep for export, and in the condition of battery hens followed such community debate." [footnotes omitted]