Legal Research
Cases
Bowes v Fehlberg (No 2)

Bowes v Fehlberg (No 2)

Case [2001] TASSC 24 14 March 2001

Defamation

Jurisdiction

Standing

Discovery & Disclosure

Abuse of Process

Defamation

Administrative Law

Type to search within this case.

[2001] TASSC 24

CITATION: Bowes v Fehlberg & Ors (No 2) [2001] TASSC 24

PARTIES:  BOWES, John Robert
  v
  FEHLBERG, Ivan Robertson

AMOS, Julian John
THE AUSTRALIAN BROADCASTING CORPORATION

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  Original
FILE NO/S:  1602/1994
DELIVERED ON:  14 March 2001
DELIVERED AT:  Hobart
HEARING DATES:  20 and 23 October 2000
JUDGMENT OF:  Underwood J

CATCHWORDS:

Defamation - Statements amounting to defamation - In general - Imputations - Standard by which defamatory meaning determined - Question of law for judge whether words capable of bearing defamatory meaning - Natural and ordinary meaning.

Lewis v Daily Telegraph Ltd [1964] AC 234; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, applied.
Bowes v Fehlberg & Ors 53/1997, followed.
Aust Dig Defamation [6]

Procedure - Supreme Court procedure - Tasmania - Practice under Rules of Court - Amendments - Amendment of statement of claim - Discretion of court - Whether proposed amendment would be so obviously futile it would be struck out of an original pleading.

Commissioner for Railways v Bielewicz [1963] NSWR 482; Horton v Jones (No 2) (1939) 39 SR (NSW) 305, applied.
Coyne v West Australian Newspapers Ltd (No 1) (1995) 15 WAR 51; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354, referred to.
Bowes v Fehlberg & Ors 53/1997, followed.
Aust Dig Procedure [276]

REPRESENTATION:

Counsel:
      Plaintiff/Applicant:  P W Tree
      Respondent/Defendant Fehlberg:  J W Avery
      Respondent/Defendant Amos:  D F M Zeeman
      Respondent/Defendant Australian Broadcasting Corporation: K B Procter
Solicitors:
      Plaintiff/Applicant:  Hugh Murray
      Respondent Defendant Fehlberg:  John Avery
      Respondent Defendant Amos:  Butler McIntyre & Butler
      Respondent Defendant Australian Broadcasting Corporation:   Murdoch Clarke

Judgment Number: [2001] TASSC 24
Number of Paragraphs: 33

Serial No 24/2001
File No 1602/1994

JOHN ROBERT BOWES v IVAN ROBERTSON FEHLBERG, JULIAN JOHN AMOS and THE AUSTRALIAN BROADCASTING CORPORATION (NO 2)

REASONS FOR JUDGMENT UNDERWOOD J

14 March 2001

Introduction

These proceedings commenced on 22 September 1994 but have since made little progress. In 1997 the plaintiff applied for leave to make substantial amendments to the statement of claim. Crawford J refused to grant leave with respect to the majority of the proposed amendments, but gave leave to make some amendments (Bowes v Fehlberg & Ors 53/1997). However, the plaintiff did not take advantage of the leave that was granted to him, and by virtue of the then Rules of Court, O31, r8, the order giving leave became void.

The plaintiff appealed against the refusal to grant leave. The appeal was dismissed (Bowes v Fehlberg & Ors 43/1998). All the members of the Full Court, of which I was one, were of the view that none of the proposed amendments should have been allowed. However, by a majority, it was held that as there was no cross-appeal, the only order that could be made was an order dismissing the appeal.

Now, almost six years after the writ was filed,…

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 Bowes v Fehlberg (No 2)

Details

AGLC: Bowes v Fehlberg (No 2) [2001] TASSC 24
Case: [2001] TASSC 24
Decision Date: 14 March 2001

CaseChat Overview and Summary

Bowes v Fehlberg (No 2) is a defamation case involving a plaintiff, John Robert Bowes, who is suing multiple defendants for defamatory statements made about him. The defendants include Ivan Robertson Fehlberg, Julian John Amos, and the Australian Broadcasting Corporation (ABC). The case revolves around allegations made in 1994 concerning conversations between Bowes and others relating to the proposed surveillance of a Liberal Member of Parliament. The plaintiff is seeking to amend his statement of claim to include new allegations against the defendants. The court must decide whether the plaintiff should be allowed to amend his statement of claim and, if so, which specific allegations should be included. The court must also determine the legal standard for establishing defamation and whether the proposed amendments meet that standard. In its decision, the Supreme Court of Tasmania denied the plaintiff's application to amend the statement of claim. The court found that the proposed amendments were either too tenuous or had already been considered and rejected in previous proceedings. The court also held that the plaintiff had not met the legal standard for establishing defamation, as the proposed innuendos were either so obviously untenable that they could not possibly succeed or were not supported by the evidence. The court emphasised the importance of the natural and ordinary meaning of the words used and the need for a reasonable person to understand the defamatory imputation. The court also considered the principle of issue estoppel and found that it did not apply to the interlocutory order that had previously been made in the case. Overall, the court found that the proposed amendments would be an exercise in futility and denied the plaintiff's application to amend the statement of claim.

Orders