Bond v West Australian Newspapers Ltd - [1999] WASC 63

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BOND -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [1999] WASC 63

CORAM: ANDERSON J

HEARD: 13 MAY 1999

DELIVERED : 16 JUNE 1999

FILE NO/S: CIV 2252 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 - Ambiguity in innuendo plea - "Fraudulently" - Application to strike out whole plea

Legislation:

Nil

Result:

Application allowed in part

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):

Nil

Case(s) also cited:

Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd [1995] ATR 62,709
Foord v John Fairfax & Sons Ltd, unreported; SCt of NSW; (Hunt J); No 2045 of 1986; 27 February 1987
Gascoine v McGinty (1995) 14 WAR 542
Lewis v Daily Telegraph Ltd [1963] 1 QB 340
Mirror Newspapers Ltd v Harrison (1982) 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
R v Cushion (1997) 150 ALR 45

ANDERSON J: This is an application to strike out a statement of claim, or parts of it, in defamation proceedings. The defendant is the publisher of The West Australian newspaper and on 31 October 1998 it published a page 1 story as follows:
"Bond family takes over $l0m manor
Estate quarantined from bankruptcy creditors
• By Mark Drummond
THE family of jailed entrepreneur Alan Bond has assumed ownership of a 16th century manor and rural estate in England worth about $10 million which has eluded Bond's corporate and personal creditors who are owed billions of dollars.
Investigations by The West Australian have revealed how both the freehold and leasehold titles over the 400ha Upp Hall estate in Hertfordshire were transferred out of Bond Corporation and into a $2 Bond shelf company through a series of confidential corporate manoeuvres.
The Upp Hall transactions centred around Lindsey Trading Properties, a company controlled by Jurg Bollag - the elusive Swiss financier identified as the central figure in a four-year Australian Federal Police investigation into allegations that Bond concealed assets and income from his bankruptcy creditors.
With Mr Bollag's involvement, the Upp Hall estate has been effectively quarantined from Bond's bankruptcy creditors. The collapse of the Bond empire left public and private creditors more than $3 billion out of pocket.
Upp Hall came under the scrutiny of Federal police, who raided the property and seized documents in 1995 while investigating links between Bond and Mr Bollag.
But the police's Operation Oxide was abandoned this month after Mr Bollag used the Swiss legal system to help frustrate repeated attempts to examine him under oath.
Upp Hall, two…

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: [1999] WASC 63
Decision Date: 16 JUNE 1999

CaseChat Overview and Summary

The matter of Bond v West Australian Newspapers Ltd was before the Supreme Court of Western Australia, where the primary dispute centred on a defamation claim. The plaintiff, Bond, alleged that the defendant, West Australian Newspapers Ltd, published defamatory statements concerning him in their newspaper. The defendant's plea involved innuendo, which was central to the defamation claim, but there was contention over the interpretation of the word "fraudulently" within the innuendo plea. The plaintiff sought to have the entire innuendo plea struck out due to perceived ambiguity.

The court had to determine whether the innuendo plea was sufficiently clear and precise to allow the defendant to respond adequately. The ambiguity in question revolved around the term "fraudulently", which was used in the context of the innuendo. The court needed to assess if this ambiguity rendered the innuendo plea defective, thereby justifying a strike-out. The issue was whether such ambiguity in the innuendo plea was fatal to the defendant's case or if it could be resolved through further particulars or clarification.

The court held that the term "fraudulently" did introduce an element of ambiguity, but this did not render the entire innuendo plea defective. The court reasoned that while the term could be clarified, it did not invalidate the plea to the extent that it necessitated a strike-out. Instead, the court saw merit in allowing the defendant the opportunity to clarify the term through further particulars, if necessary. Consequently, the application to strike out the whole plea was dismissed, but the defendant was given leave to amend the plea to address the ambiguity. This decision balanced the need for clarity in legal pleadings with the desire to allow the defendant to properly respond to the allegations.

Orders