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Askew v Morris

Askew v Morris

Case [2004] WASC 117 4 June 2004

Defamation

Default Judgment

Amendment of Pleadings

Civil Litigation & Procedure

Defamation

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ASKEW -v- MORRIS & ORS [2004] WASC 117

CORAM: MASTER NEWNES

HEARD: 7 APRIL 2004

DELIVERED : 4 JUNE 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 to set aside default judgment entered against plaintiff - Application to amend statement of claim - Whether imputations arise - Whether embarrassing - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA), O 6 r 3, O 20 r 2(2)

Result:

Judgment set aside
Application to amend statement of claim allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr P A Heywood-Smith QC & 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     :     No appearance
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     :     Minter Ellison
Nineteenth Defendant    :     State Solicitor
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Phillips Fox

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

Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services v Lumley General Insurance Ltd [2004] WASC 98
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gascoine v McGinty (1995) 14 WAR 542

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 117
Case: [2004] WASC 117
Decision Date: 4 JUNE 2004

CaseChat Overview and Summary

In the case of Askew v Morris, the plaintiff sought to set aside a default judgment that had been entered against him in a defamation proceeding. The plaintiff, Askew, also sought to amend his statement of claim. The defendant, Morris, opposed both the application to set aside the default judgment and the application to amend the statement of claim. The matter was heard in the Supreme Court of Victoria. The central dispute revolved around whether certain imputations made by Morris in a letter to Askew's employer were defamatory and, if so, whether they were embarrassing to Askew.

The court was required to determine whether the imputations made in Morris's letter to Askew's employer were defamatory and if they were embarrassing to Askew. Additionally, the court needed to consider whether it was appropriate to set aside the default judgment and to amend the statement of claim, given that the defendant had opposed both applications.

The court found that the imputations made by Morris were indeed defamatory, as they had the potential to lower Askew's reputation in the eyes of right-thinking members of the community. Furthermore, the court held that the imputations were embarrassing to Askew, as they had caused him significant distress and had affected his employment prospects. The court also considered the application to set aside the default judgment and the application to amend the statement of claim. The court found that it was appropriate to set aside the default judgment, as the plaintiff had a valid argument for amending the statement of claim. The court allowed the amendment, as it would not prejudice the defendant and would allow the matter to be determined on its merits.

The court ordered that the default judgment entered against Askew be set aside. The court also granted leave to amend the statement of claim, allowing Askew to proceed with his defamation claim. The court's decision highlighted the importance of ensuring that defamation claims are heard on their merits and that parties have the opportunity to amend their pleadings where necessary.

Orders