Bond v John Fairfax Publications Pty Ltd - [2002] WASC 130

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOND -v- JOHN FAIRFAX PUBLICATIONS PTY LTD & ANOR [2002] WASC 130

CORAM: HASLUCK J

HEARD: 14 MAY 2002

DELIVERED : 5 JUNE 2002

FILE NO/S: CIV 1650 of 2000

BETWEEN: ALAN BOND
Plaintiff
AND
JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720)
First Defendant
MARK DRUMMOND
Second Defendant

Catchwords:

Defamation - Application to strike out defence - Polly Peck defence - Particulars of justification - Turns on own facts

Legislation:

Companies (Western Australia) Code, s 229(1)(b)

Criminal Code, s 371

Rules of the Supreme Court, O 20 r 19

Result:

Application to strike out allowed
Application to amend dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr S J Lemonis
First Defendant             :     Mr R L Le Miere QC
Second Defendant         :     Mr R L Le Miere QC

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     Freehills
Second Defendant         :     Freehills

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

Bond v John Fairfax Publications Pty Ltd & Anor [2001] WASC 336
Clark v Richards & Anor [2002] WASC 49
Templeton v Jones [1984] 1 NZLR 448

Case(s) also cited:

Bryce v R (1955) 40 Cr App Rep 62
Gaston v United Newspapers Ltd (1915) 32 TLR 143
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Ilich v The Queen (1987) 162 CLR 110
Inkhorn Pty Ltd v Herbert [2000] WASCA 333
Jones v Skelton [1964] NSWR 485
Karsales (Harrow) Ltd v Wallis [1956] 2 All ER 866
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Lever Bros Ltd v Bell [1931] 1 KB 557
Millington v Loring (1880) 6 QBD 190
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Speidel v Plato Films Ltd [1961] AC 1090
Sutherland v Stopes [1925] AC 47
Sydney City Council v Ke-Su Investments Pty Ltd (1985) 1 NSWLR 246
TWT Ltd v Moore (1991) 105 FLR 350

HASLUCK J: The plaintiff, Alan Bond, has applied to strike out certain paragraphs of the amended defence filed on behalf of the first defendant, John Fairfax Publications Pty Ltd, and the second defendant, Mark Drummond, who is an employee of John Fairfax Publications. The defendants brought on for hearing simultaneously an application for leave to further amend the amended defence. In essence, the matter in controversy at the hearing before me concerned the adequacy of par 5 as pleaded in the defendants' minute of proposed further amended defence. However, in order to understand the matters in issue it is necessary to look briefly at the events leading up to these applications.
The plaintiff complains of an article published in the Australian Financial Review on Friday, 26 May 2000 which included the following passage:
"Who would have figured on Bell Resources being a stellar share market performer after Alan Bond had been convicted of stealing more than $1 billion in cash from the company in Australia's biggest…

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: [2002] WASC 130
Decision Date

CaseChat Overview and Summary

Alan Bond, the plaintiff, filed a defamation suit against John Fairfax Publications Pty Ltd and Mark Drummond, an employee of the first defendant, over an article published in the Australian Financial Review. The article suggested that Bond had been convicted of stealing over $1 billion from Bell Resources. Bond argued that this implied he had stolen the money, damaging his reputation and credit. The defendants denied liability but offered two alternative justifications: that Bond had been convicted of defrauding in his capacity as a director, or that the statement meant he had stolen the money. The court previously ruled that one of the justifications was acceptable, but the other needed more specific details.

The current issue was whether the defendants could further amend their defence to clarify their justification. Specifically, they wanted to rely on a detailed statement of facts from Bond's earlier legal proceedings to support their claim that Bond stole the money. Bond argued this was too vague and would prejudice him. The court had to decide if the proposed amendment was sufficiently specific to justify the claim and not overly vague or prejudicial.

The court ruled that the proposed amendment still relied too heavily on the earlier statement of facts, which was not designed for this defamation case. The details in the statement were too broad and did not clearly show the specific acts Bond was accused of doing. The court also noted that the defendants' attempt to link "stealing" with "fraudulent conversion" was not clearly explained. Because the proposed amendment did not clearly state the specific facts and intentions behind the claim that Bond stole the money, the court decided to strike it out. However, the defendants were allowed to try to rephrase their defence with more precise details.

Orders