Askew v Morris - [2004] WASC 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ASKEW -v- MORRIS & ORS [2004] WASC 256

CORAM: MASTER NEWNES

HEARD: 26 OCTOBER 2004

DELIVERED : 2 DECEMBER 2004

FILE NO/S: CIV 1227 of 2003

BETWEEN: THOMAS ASKEW
Plaintiff
AND
PATRICIA MITZI MORRIS
First Defendant
ADELLE COCHRAN
Second Defendant
RONALD JOHANNES BOUWER
Third Defendant
WERNER CORBE
Fourth Defendant
RAY HAEREN
Fifth Defendant
TREVOR PERKINS
Sixth Defendant
RODNEY KIM CROFT
Seventh Defendant
RONALD MITCHELL
Eighth Defendant
SUSAN IWANYK
Ninth Defendant
ANTONIO PISANO
Tenth Defendant
MARJORY CAROL MATISON
Eleventh Defendant
MICHAEL DEVEREUX
Twelfth Defendant
STUART JARDINE
Thirteenth Defendant
GERARD VAN RONGEN
Fourteenth Defendant
GARY McHUGH
Fifteenth Defendant
JOELEY PETIT
Sixteenth Defendant
STEVEN COLE
Seventeenth Defendant
DAVID GRIFFITHS
Eighteenth Defendant
TOM STEPHENS
Nineteenth Defendant
EXAMINER NEWSPAPERS
Twentieth Defendant
THE CITY OF GOSNELLS
Twenty-First Defendant

Catchwords:

Defamation - Application for leave to amend statement of claim - Whether amendments disclose reasonable cause of action or embarrassing - Turns on own facts

Legislation:

Crown Suits Act 1947 (WA), s 6(1)(a)

Rules of the Supreme Court 1971 (WA), O 20 r 9(3), O 21 r 5(3)

Result:

Application to amend allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Ms F L Askew
First Defendant             :     Mr S M Davies
Second Defendant         :     Mr S M Davies
Third Defendant           :     Mr S M Davies
Fourth Defendant          :     Mr S M Davies
Fifth Defendant            :     Mr S M Davies
Sixth Defendant            :     Mr S M Davies
Seventh Defendant        :     Mr S M Davies
Eighth Defendant          :     Mr S M Davies
Ninth Defendant           :     Mr S M Davies
Tenth Defendant           :     Mr S M Davies
Eleventh Defendant      :     Mr S M Davies
Twelfth Defendant        :     Mr S M Davies
Thirteenth Defendant     :     Mr S M Davies
Fourteenth Defendant     :     No appearance
Fifteenth Defendant      :     No appearance
Sixteenth Defendant      :     No appearance
Seventeenth Defendant :     Mr J A Sefton
Eighteenth Defendant     :     Ms C Galati
Nineteenth Defendant    :     Mr J A Sefton
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Mr S M Davies

Solicitors:

Plaintiff:     Askew & Co
First Defendant             :     Phillips Fox
Second Defendant         :     Phillips Fox
Third Defendant           :     Phillips Fox
Fourth Defendant          :     Phillips Fox
Fifth Defendant            :     Phillips Fox
Sixth Defendant            :     Phillips Fox
Seventh Defendant        :     Phillips Fox
Eighth Defendant          :     Phillips Fox
Ninth Defendant           :     Phillips Fox
Tenth Defendant           :     Phillips Fox
Eleventh Defendant      :     Phillips Fox
Twelfth Defendant        :     Phillips Fox
Thirteenth Defendant     :     Phillips Fox
Fourteenth Defendant     :     Corrs Chambers Westgarth
Fifteenth Defendant      :     Corrs Chambers Westgarth
Sixteenth Defendant      :     Corrs Chambers Westgarth
Seventeenth Defendant :     State Solicitor
Eighteenth Defendant     :     Edwards Wallace
Nineteenth Defendant    :     State Solicitor
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Phillips Fox

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

Askew v Morris & Ors [2004] WASC 117
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386
Judamia v Western Australia, unreported; FCt SCt of WA; Library No 960114; 1 March 1996
Taylor v…

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.

Continue reading Askew v Morris

Details

AGLC: Askew v Morris [2004] WASC 256
Case: [2004] WASC 256
Decision Date: 2 DECEMBER 2004

CaseChat Overview and Summary

In the case of Askew v Morris, the applicant sought leave to amend his statement of claim in a defamation action. The respondents, including the City of Gosnells and certain councillors, opposed the application on various grounds, including that the proposed amendments did not disclose a reasonable cause of action and were embarrassing. The court was required to determine whether the amendments to the statement of claim disclosed a reasonable cause of action and whether they were embarrassing or oppressive to the respondents.

The court considered whether the nature of the alleged impropriety was sufficiently defined, taking into account the words complained of and the circumstances of the case. The court noted that the requirement for specificity in a defamation claim is a matter of practical justice rather than philology. In this case, the court found that the nature of the alleged impropriety was sufficiently defined, and therefore allowed the imputation. The court also found that certain paragraphs, which were argued to be insufficiently specific, were in fact related to damages and not the cause of action itself. The court held that the respondents' complaints about these paragraphs were not valid grounds for striking them out.

The court further addressed the respondents' argument that certain paragraphs were embarrassing. The court found that the allegations related to the handling of a report and the decision to bear costs, and did not constitute an embarrassing cause of action. The court emphasised that the focus should be on the nature of the alleged impropriety and whether it was sufficiently defined, rather than on the specific words used in the pleadings.

The court allowed the applicant leave to amend his statement of claim, subject to certain conditions. The court found that the amendments disclosed a reasonable cause of action and were not embarrassing. The court also noted that the amendments were not intended to cause oppression or undue delay to the respondents. The court ordered that the applicant file the amended statement of claim within a specified timeframe and that the respondents file their defence within a further specified timeframe.

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 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ said at 137 that:"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him is one which, in its practical application, raises questions 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 necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." In the present case, on balance, I consider that the nature of the alleged impropriety is sufficiently defined, having regard to the nature of the words complained of, and I would allow the imputation. The next complaint was as to par 21 which pleads, in substance, that the natural and probable consequence of the original publication was that the words would be republished on the City of Gosnells' website and in other news reports. On the hearing of an application to strike out an earlier version of the statement of claim, Senior Counsel for the plaintiff said that par 21, and also pars 25, 31, 32, 36, 37 and 44, went to damages only. In my earlier decision, I allowed the pleas on that basis: Askew v Morris & Ors (supra) at [52] and [53]. I think it is now sufficiently clear that the pleas go only to damages, so the complaint that the pleas do not expressly say so is not a ground on which they would be struck out. I would therefore reject the complaint in respect of each of those paragraphs. The next complaint of the council defendants was as to par 28.3. That paragraph pleads one of three imputations which the plaintiff says arises from the words pleaded in par 27 of the minute. Paragraph 27 is as follows:"27.At a City of Gosnells Ordinary Council Meeting of 14 May 2002 a ratepayer Ms Nuala Brown asked various questions of Jardine. These questions were put on notice to be answered by Jardine at the next Ordinary Council Meeting. The questions and response by Jardine were stated by Jardine in the Council meeting of 28 May 2002 as follows;(a)Whether the Councillors have seen the terms of reference provided by the Local Government and Regional Development Minister, Mr Tom Stephens?(b)How long were the Councillors given to study the contents of the report before being asked to vote on the recommendations?(c)How long did it take the Shire to prepare the 387 page report? (d)Who made the decision that the costs would be borne by the ratepayers and why then is the report not available to be viewed by them?Response:In reply to Nuala Brown, the Chief Executive Officer provided the following written response on the 23 May 2002:I refer to the questions you asked at the Ordinary Council Meeting on the 14 May 2002 and now provide the following response.The cost to date of responding to the assessment of issues raised by the Department of Local Government and Regional Development and associated actions is estimated to be $64,622. The actual cost of producing the written response was less than $500.Point (a)-Yes.Point (b)- Council considered and approved the written response prepared by the Executive Team at a Special Council Meeting held on the 19 March 2002. The meeting opened at 6.31 pm and concluded at 9.57 pm.Point (c)- Several weeks.Point (d)- It was not the City which instigated the allegations. The City was obliged by virtue of section 8.2(2) of the Local Government Act, 1995 to respond in a proper and comprehensive fashion to the questions posed to it by the Department. To the extent that there has been expenditure, the responsibility for the incurring of that expenditure ought to be addressed to each of the complainant and the Department as the instigator and inquirer respectively. The City is currently looking at ways of recovering ratepayer's money expended in relation to this issue. The baseless unsubstantiated allegations of former Councillor Tom Askew were made directly to the Department of Local Government and Regional Development and it is the Department which has prepared a report to the Minister (this report has not been released to the City of Gosnells).Furthermore:1. The Crown Solicitor has advised that the allegations defame the City of Gosnells Executive Team.2. Following research and inquiry no substantiation could be established.3. To circulate the allegations themselves (which, effectively, is what is proposed to be done) will give currency to the allegations in circumstances where they have been investigated and found to have no validity.4. As a consequence, there could be the possibility of mischief caused by the airing of the allegations, particularly in the run up to the local election."