Archer v Channel Seven Perth Pty Ltd - [2001] WASC 195

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ARCHER -v- CHANNEL SEVEN PERTH PTY LTD [2001] WASC 195

CORAM: McLURE J

HEARD: 11 JULY 2001

DELIVERED : 1 AUGUST 2001

FILE NO/S: CIV 1271 of 2001

BETWEEN: STEPHEN JOHN ARCHER
Plaintiff
AND
CHANNEL SEVEN PERTH PTY LTD (ACN 008 679 294)
Defendant

Catchwords:

Defamation - Application to strike out - Imputations arising from words complained of - Turns on its own facts

Practice and procedure - O 59 r 9 certificate - Waive requirement for certificate

Legislation:

Supreme Court Rules, O 59 r 9(1)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Mr S J Penrose
Defendant: Mr R L Le Miere QC

Solicitors:

Plaintiff: Tottle Christensen
Defendant: Freehills

Case(s) referred to in judgment(s):

Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Bond v West Australian Newspapers Ltd [1999] WASC 63
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gumina v Williams (No 1) (1990) 3 WAR 342
Lewis v Daily Telegraph Ltd [1964] AC 234
Lionetti v Romeo, unreported; SCt of WA; Library No 960737; 19 December 1996
Peters v R (1998) 151 ALR 51
Smith v Littlemore (1996) 15 WAR 289
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Wilson v Chambers & Co Pty Ltd (1926) 38 CLR 131

Case(s) also cited:

Bond v West Australian Newspapers Ltd [1999] WASC 225
Dominion Investments Pty Ltd v Total Vision Design Pty Ltd [2000] WASC 130
Emerson v Walker & Ors [1999] WASC 265
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Jones v Skelton [1963] 1 WLR 1362
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Philipps v Philipps (1878) 4 QBD 127
Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90
Russell-Davison v Prosin, unreported; SCt of WA; Library No 980277; 22 May 1998
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Vitale v Bednall [2000] WASC 207
Williams v Grainger [2000] WASC 96

McLURE J: The defendant applies to strike out pars 4 and 6(i) of the amended statement of claim in this defamation action. The plaintiff says the Court does not have power to make an order on the defendant's application because of its failure to comply with O 59 r 9 of the Supreme Court Rules. I deal with that issue first.

Order 59 r 9 of the SCR

Order 59 r 9 provides:
"(1)No order shall be made on an application in chambers unless the application was filed with a memorandum stating -
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
(2)The court may waive the operation of paragraph (1) in a case of urgency or for other good reason."
On a literal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2001] WASC 195
Decision Date

CaseChat Overview and Summary

Archer commenced proceedings against Channel Seven Perth Pty Ltd in the Supreme Court of Western Australia, alleging defamation through several imputations in television broadcasts. The broadcaster sought to have certain parts of the statement of claim struck out as being vague, ambiguous, or repetitious. The court was required to determine whether the plaintiff's pleadings met the necessary specificity for defamation claims, particularly in relation to the word "dishonest" and the imputation of fraudulent transfer of assets. The court also considered whether certain imputations were repetitious and thus redundant.

The court examined whether the word "dishonest" was sufficiently specific or if it was ambiguous in the context of the imputations. Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation provided guidance that the specificity required in pleadings can vary based on practical justice rather than strict philology. The court found that "dishonest" in this context was not ambiguous and thus not problematic. Regarding the imputation of fraudulent transfer, the court held that the specific allegation of transferring all assets to the plaintiff's wife was too unqualified and speculative, warranting its removal from the statement of claim. The court also noted that the imputations in question were not repetitious of each other, as they involved different purposes and contexts.

The court ruled that subparagraph 4(c) of the amended statement of claim should be struck out because it made an unqualified assertion about the fraudulent transfer of assets to the plaintiff's wife, which was considered too speculative and not adequately supported by the evidence. The court did not find the word "dishonest" to be ambiguous or weasel-like, and thus did not strike out those parts of the pleadings. The court ordered that subparagraph 4(c) be removed from the statement of claim, while the rest of the pleadings were to remain as part of the proceedings.

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

The pleading of imputations was considered by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137 in the following terms:"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him ... , is one of which, in its practical application, raises question of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." The issue is whether the word 'dishonest' is, to use the language of Hunt J in Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW (Hunt J); 26 September 1991, a "weasel" word being one which has a variety of meanings so that its use is ambiguous or equivocal. Weasel words generally only survive in an imputation if such a word is accompanied by particulars (eg, corrupt as a result of accepting a bribe). I understand the principle to apply where a word has more than one shade of meaning and the different shades of meaning import a different degree of seriousness or impropriety. It is not satisfied merely because dishonesty may reflect itself in different type of conduct. In my opinion, the word "dishonest" in imputation 4(b) is not a weasel word in this sense and is not embarrassing. The defendant's objections to subparagraph 4(c) of the amended statement of claim only emerged with any specificity in oral submissions. The first ground of objection was that the words complained of did not support the unqualified assertion of a fraudulent transfer to the plaintiff's wife of all his assets. Indeed, the words complained of refer to a number of alternative possibilities. Paul Barry is reported as saying "they go bankrupt, they put their assets with their wives or in family trusts or in family companies". I agree the imputation goes too far in making an unqualified assertion of fraudulent transfer to the plaintiff's wife. Even so, if the identity of the transferee was irrelevant to the defamatory sting or the defendants could justify the sting by proof of transfer to another, I would refuse to strike out the subparagraph. However, these contentions were not advanced by the plaintiff nor addressed in detail by the defendant. In the circumstances, the appropriate course is to strike out subparagraph 4(c) on this narrow basis. The second ground of objection was that this imputation is repetitious of the imputation in subparagraph 4(a). That is clearly not so. The purpose of the conduct in subparagraph 4(c) (to defeat creditors) is different and wider than the purpose in subparagraph 4(a) (to evade the payment of tax).