JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUCKERIDGE -v- WALTER [2010] WASCA 134
CORAM: McLURE P
OWEN JA
BUSS JA
HEARD: 23 APRIL 2010
DELIVERED : 23 JULY 2010
FILE NO/S: CACV 118 of 2009
BETWEEN: LEONARD WALTER BUCKERIDGE
Appellant
AND
JULIAN ALAN WALTER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :LE MIERE J
Citation :JWH GROUP PTY LTD -v- BUCKERIDGE [No 3] [2009] WASC 271
File No :CIV 2566 of 2003
Catchwords:
Defamation - Interlocutory appeal- Pleadings - Whether Polly Peck imputation capable of arising - Whether Polly Peck imputation lacks precision - Whether a permissible Polly Peck defence - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 48(1)
Result:
Leave granted and appeal allowed on grounds 1, 2 and 3
Leave refused on grounds 4 and 5
Category: B
Representation:
Counsel:
Appellant: Mr T K Tobin QC & Mr S M Davies SC
Respondent: Mr R W Richardson & Mr J D MacLaurin
Solicitors:
Appellant: Mallesons Stephen Jaques
Respondent: Clayton Utz
Case(s) referred to in judgment(s):
Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Buckeridge v Walter [2007] WASCA 19
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24; (2000) 1 VR 667
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Lewis v Daily Telegraph Ltd [1964] AC 234
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Vitale v Bednall [2001] WASC 278
West Australian Newspapers v Elliott [2008] WASCA 172
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
McLURE P: The appellant (defendant) applies for leave to appeal, and if leave is granted, to appeal from orders made by Le Miere J on 17 September 2009 striking out his Polly Peck defence in a defamation action. In particular, the appellant seeks to appeal from the striking out of [4B.2], [4B.3] and [10A] of the further re‑amended substituted defence dated 13 May 2009 (the defence). This was the respondent's (plaintiff) second successful application to strike out the appellant's Polly Peck defence. See Buckeridge v Walter [2007] WASCA 19.
Statement of claim
The respondent (Mr Walter) pleads that he is and at all material times was the managing director of JWH Group Pty Ltd (JWH). The appellant (Mr Buckeridge) is and at all material times was a director of J‑Corp…
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- AGLC
- Buckeridge v Walter [2010] WASCA 134
- Case
- [2010] WASCA 134
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to address included whether the defamatory imputations pleaded by Walter were capable of arising from the words in the newsletter, whether those imputations lacked precision, and whether a permissible Polly Peck defence was available. The court was required to determine if the words in the newsletter could reasonably convey the alleged defamatory meanings and if the imputations were specific enough to be actionable. Additionally, the court needed to assess whether Walter's allegations were precise enough to avoid being struck out as groundless.
The court concluded that the defamatory imputations pleaded by Walter were capable of arising from the words in the newsletter. The court found that the words in question could reasonably convey the alleged defamatory meanings and that Walter had presented a reasonably arguable case that the imputations were defamatory. The court rejected Buckeridge's argument that the words required a forced or unreasonable interpretation to convey the defamatory meanings. Instead, the court held that the ordinary reader, who was assumed to be a person of fair average intelligence, could reasonably understand the defamatory imputations from the words in the newsletter. The court also found that Walter's allegations were sufficiently precise to avoid being struck out as groundless.
The court granted leave for an interlocutory appeal on the grounds that the primary judge's decision was attended with sufficient doubt to justify the grant of leave and that Walter would suffer a substantial injustice if the decision was not reversed. The court allowed the appeal on grounds 1, 2, and 3, but refused leave on grounds 4 and 5. The court's decision was based on the need to balance the interests of both parties and to ensure that justice was served in this complex commercial dispute.
Orders
Orders of the court
Leave granted and appeal allowed on grounds 1, 2 and 3
Leave refused on grounds 4 and 5
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
As the appellant requires leave to appeal, he must demonstrate that the decision of the primary judge was wrong or attended with sufficient doubt to justify the grant of leave and that he would suffer a substantial injustice if the decision was not reversed: Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40; Wilson v Metaxas [1989] WAR 285. A pleading should only be struck out if the court concludes that it is clearly untenable or manifestly groundless: Taylor v Jecks (1993) 10 WAR 309, [45]; General Steel Industries Inc v Commissioner for Railways(NSW) (1964) 112 CLR 125, 130. Whether the imputations pleaded by the appellant are capable of being conveyed by the words complained of is a question of law and is to be determined having regard to the General Steel test. In deciding whether or not words are capable of conveying the alleged defamatory imputation, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation and will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction: Lewis v Daily Telegraph Ltd [1964] AC 234, 285; Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186, 190. The first Polly Peck imputation is that:Mr Walter had consciously and without oversight not paid approximately $700,000 to J‑Corp and Kimpura which sum he was legally obliged to pay. An issue at the hearing of the appeal was whether the words 'consciously and without oversight' (which can be taken to mean 'knowingly') applies to both (1) not paying the money and (2) the legal liability to pay. The position of the appellant was that it applied, and was intended to apply, to both (ts 61). I will proceed on that basis. Accordingly, the substance of the imputation is that Mr Walter had knowingly not paid approximately $700,000 to J-Corp and Kimpura which sum he was (to his knowledge) legally liable to pay. It was also accepted by both parties that it is reasonably arguable that it is defamatory to say that a person cannot or will not pay his debts or has delayed paying his debts: Aspro Travel Ltd v Owners Abroad Group plc [1996] 1 WLR 132, 137; Gatley on Libel and Slander (11th ed), [2.21]. Gatley explains:No element of misconduct is required; even if delay in paying or inability to pay a debt is the result of misfortune, to impute such delay or inability to someone would tend to injure his credit in a financial sense, which the law protects as part of his reputation [2.21]. The appellant does not persist with his claims, struck out by the primary judge, that an imputation in the same terms as the first Polly Peck imputation arises from the spoken words complained of. He relies on the additional material contained in the article to support that imputation. It is necessary to refer to the entire article which is as follows:BUCKERIDGE, WALTER SLING BRICKBATSTHE simmering row between construction mogul Len Buckeridge and his former business partner, Julian Walter, has erupted into tit‑for‑tat litigation over the carve‑up of their former building joint venture J‑Corp Pty Ltd.Mr Buckeridge is pushing for a quick judgment in the WA Supreme Court after two of his private companies, including J-Corp Pty Ltd itself, sued Mr Walter for about $700,000 last month over valuations of J-Corp and its assets.The companies are claiming to be owed the money as a deferred settlement payment over their carve‑up in July of J‑Corp that ended with Mr Buckeridge owning 100 per cent of J‑Corp and Mr Walter owning its Oswald, Rural Building Co and WA Country Builders brands.In other developments, Mr Buckeridge has vowed to cut off the credit provided by his building materials operations for material supplied to Mr Walter's new home building venture, JWH Group.Mr Walter is hitting back with a defamation action in the WA Supreme Court, claiming his reputation was damaged in the in‑house newsletter of the mogul's flagship BGC group.In the newsletter, Mr Buckeridge described the buy‑out of J‑Corp as a very unpleasant business and gave his interpretation of what he described as an accountancy investigation.Mr Walter said his lawyers would lodge a writ against Mr Buckeridge for defamation today unless he retracted comments in the BGC Bulletin and apologised.Mr Buckeridge vowed to fight, saying he would use truth as a defence to a defamation action.Industry observers had been expecting a legal war in the wake of Mr Walter and Mr Buckeridge breaking up in July after 18 years together as joint owners of J‑Corp, which was WA's second biggest building group last year.But until recent weeks, litigation was confined to JWH suing J‑Corp over the former joint venture company advertising two home designs that Mr Walter claims went with him.J-Corp and Buckeridge‑controlled Kimpura Pty Ltd lodged a writ in the Supreme Court last month alleging they are owed $698,947 plus interest under a formula that was included in a deed governing the carve‑up of J‑Corp assets in July.Mr Buckeridge told WestBusiness that the claim was based on figures compiled by PricewaterhouseCoopers, which had been nominated by Mr Walter to carry out calculations for the deed.'I think he doesn't want to pay because he hasn't got the money', he said.Mr Buckeridge said BGC had difficulty being paid by JWH for building materials supplied since the carve‑up and would only supply Mr Walter's new group as cash‑on‑delivery basis from next month.But Mr Walter rejected claims by Mr Buckeridge that JWH had not paid BGC for building materials, saying his group had withheld some money recently because BGC was slow in paying rebates for bulk discounts. He would no longer use BGC as a supplier if credit was cut.Mr Walter said the Supreme Court action would be defended because the final accounts were based on valuations acceptable to BGC and involved changes to the underlying accounting policies at J‑Corp.