Bond v West Australian Newspapers Ltd

[1999] WASC 225

BOND -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [1999] WASC 225

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[1999] WASC 225
Case No:	CIV:2282/1998	Heard:	8 NOVEMBER 1999
Coram:	ANDERSON J	Delivered:	12/11/99
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed in part
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Parties:	JOHN BRYAN BOND WEST AUSTRALIAN NEWSPAPERS LTD MARK DRUMMOND
Catchwords:	Practice and procedure Defamation Pleading Innuendo Words not capable of bearing innuendo Application to strike out innuendo plea
Legislation:	Nil
Case References:	Bond v West Australian Newspapers Ltd & Anor [1999] WASC 63 Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW; No 2045 of 1986; 27 February 1987 Lewis v Daily Telegraph Ltd [1963] 1 QB 340 Mirror Newspapaers Ltd v Harrison (1989) 149 CLR 293 Nationwide News Pty Ltd v Abboud, unreported; FCt SCt of WA; Library No 960710; 12 September 1996 Peters v R (1998) 151 ALR 51

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BOND -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [1999] WASC 225 CORAM : ANDERSON J HEARD : 8 NOVEMBER 1999 DELIVERED : 12 NOVEMBER 1999 FILE NO/S : CIV 2282 of 1998 BETWEEN : JOHN BRYAN BOND

Plaintiff

AND

WEST AUSTRALIAN NEWSPAPERS LTD
First Defendant

MARK DRUMMOND
Second Defendant

Catchwords:

Practice and procedure - Defamation - Pleading - Innuendo - Words not capable of bearing innuendo - Application to strike out innuendo plea

Legislation:

Nil

Result:

Application allowed in part

(Page 2)

Representation:

Counsel:

Plaintiff : Mr R W Richardson
First Defendant : Mr R L Le Miere QC
Second Defendant : Mr R L Le Miere QC

Solicitors:

Plaintiff : Bennett & Co
First Defendant : Minter Ellison
Second Defendant : Minter Ellison

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

Bond v West Australian Newspapers Ltd & Anor [1999] WASC 63

Case(s) also cited:

Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW; No 2045 of 1986; 27 February 1987
Lewis v Daily Telegraph Ltd [1963] 1 QB 340
Mirror Newspapaers Ltd v Harrison (1989) 149 CLR 293
Nationwide News Pty Ltd v Abboud, unreported; FCt SCt of WA; Library No 960710; 12 September 1996
Peters v R (1998) 151 ALR 51

(Page 3)

1 ANDERSON J: This is an application to strike out paragraphs of a statement of claim in defamation proceedings. The statement of claim is actually an amended statement of claim which was amended pursuant to leave granted by me on 16 June last. The relevant facts and the defamatory material are fully set out in my judgment in those earlier proceedings. See Bond v West Australian Newspapers Ltd & Anor [1999] WASC 63. There is no need to set out that material again. The pleading now under attack is the imputation plea which was substituted for the earlier plea. Paragraphs 5 and 11, which were successfully attacked in the original statement of claim, were substituted by new par 5A to par 5D and par 11A to par 11D. At the hearing of the present application, Mr Richardson, on behalf of the plaintiff, obtained leave to delete the new par 5A to 5D and par 11A to 11D and to include different pleadings in substitution for them in the form of par 5A, par 5B, par 11A and par 11B.. Mr Le Miere QC, on behalf of the defendants, then moved to strike out those paragraphs.

2 It is only necessary to set out the new par 5A and par 5B which are as follows:

"5A. The first matter complained of meant and was understood to mean in its ordinary and natural meaning that by participating in a scheme with the purpose and intent of moving a $10 million asset beyond the reach of Alan Bond's personal and corporate creditors, the Plaintiff was guilty of criminal fraud.

5B. In the alternative, the first matter complained of meant and was understood to mean in its ordinary and natural meaning that by participating in a scheme with the purpose and intent of moving a $10 million asset beyond the reach of Alan Bond's personal and corporate creditors, the Plaintiff committed a civil fraud."

3 In my opinion, the first article is not capable of giving rise to the imputation that the plaintiff was guilty of criminal fraud.

4 I am not prepared to say that the article is not capable of giving rise to the imputation pleaded in par 5B. It is at least arguable that the first article implies that there was a scheme to defraud Bond's creditors, in which the plaintiff knowingly participated. I think that is the imputation that is pleaded. Whether the material does, in fact, carry that imputation should be decided at trial. I venture to say that I think the 26 words from

(Page 4)

"by participating" to "corporate creditors" in par 5B and par 11B are otiose and may actually confine the plaintiff as to the ordinary and natural meaning of the matter complained of. However, it is for the plaintiff to plead his case and no objection is taken by the defendants to that part of the innuendo plea .

5 For these reasons, I would strike out par 5A and par 11A but not par 5B or par 11B.

6 I am not presently disposed to make an order for costs. I think the parties should bear their own costs of this application. If either party wishes to persuade me to the contrary, I will hear further submissions.