JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: BUCKERIDGE -v- WALTER [2007] WASCA 19
CORAM: McLURE JA
BUSS JA
HEARD: 9 NOVEMBER 2006
DELIVERED : 1 FEBRUARY 2007
FILE NO/S: CACV 35 of 2006
BETWEEN: LEONARD WALTER BUCKERIDGE
Appellant
AND
JULIAN ALAN WALTER
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram :MASTER NEWNES
Citation :JWH GROUP PTY LTD (Discontinued 30 August 2004) & ANOR -v- BUCKERIDGE & ANOR [2006] WASC 11
File No :CIV 2566 of 2003
Catchwords:
Defamation - Whether words complained of capable of being defamatory - Whether a permissible Polly Peck defence - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Appellant: Mr S M Davies
Respondent: Mr R W Richardson
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
David Syme & Co Ltd v Hore‑Lacy (2000) 1 VR 667
Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314
Smith v Littlemore (1996) 15 WAR 289
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Vitale v Bednall [2001] WASC 278
Western Australia v Bond Corporation Holdings Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285
McLURE JA: This is the appellant's application for leave to appeal, and, if leave is granted, the appeal from the order of Master Newnes made on 21 March 2006, refusing the appellant's application for leave to amend his defence to include a "Polly Peck" plea.
The respondent (plaintiff), Mr Julian Walter, commenced defamation proceedings against the appellant, Mr Len Buckeridge, for slander arising out of a telephone conversation on 17 December 2003 between Mr Buckeridge and Mr Neale Prior, a financial journalist then employed by West Australian Newspapers Ltd, and for libel arising out of the publication of an article in the 18 December 2003 edition of The West Australian newspaper.
The learned Master refused leave to amend on two grounds, the first being that the Polly Peck imputation was substantially different from the imputation pleaded in the statement of claim and secondly that the Polly Peck imputation was not defamatory of the respondent. The Master did not determine the respondent's third ground of opposition to the amendment, being that the Polly Peck imputation was incapable of being conveyed by the words complained of. The appellant contends the Master ought to have granted leave because it was at least arguable that the Polly Peck imputation:
1.was not substantially different from the imputation pleaded by the respondent;
2.was defamatory of the respondent.
The respondent filed a notice of contention seeking to uphold the Master's decision on the further ground that the Polly Peck imputation was incapable of arising from the words complained of.
As the appellant requires…
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- AGLC
- Buckeridge v Walter [2007] WASCA 19
- Case
- [2007] WASCA 19
- Decision Date
CaseChat Overview and Summary
The court examined the statements made by Buckeridge in a newsletter, where he insinuated that Walter was financially incapable of fulfilling his obligations. The key legal issue was whether these statements were capable of being defamatory and if the defence of truth could be validly applied. The court considered the specific context and the implications of the words in relation to Walter's personal and professional reputation.
The court concluded that the words published by Buckeridge were capable of being defamatory, as they implied Walter lacked the financial means to meet his obligations, thus damaging his reputation. The court also found that the truth defence was not applicable since Buckeridge had not established the truth of his statements. As a result, the court ruled in favor of Walter, affirming that the words were defamatory and rejecting Buckeridge's defence.
In summary, the court granted Walter's defamation claim and dismissed Buckeridge's appeal. The decision upheld the defamatory nature of the statements and the absence of a valid truth defence, thus affirming Walter's reputation and the applicability of defamation law in this context.
Orders
Orders of the court
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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 Master was wrong or attended with sufficient doubt to justify the grant of leave and that he would suffer 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). In order to understand the issues, it is necessary to refer to the statement of claim. It is pleaded that Mr Walter is the promoter, founder and managing director of JWH Group Pty Ltd which is the ultimate holding company of the "JWH Group" of companies that carry on the business of designing, building and marketing residential homes in Western Australia (par 6) and that Mr Buckeridge is, and at all material times was, a director of J‑Corp Pty Ltd (par 2). The words complained of the subject of the slander claim are as follows (par 3):"Prior:'What's this writ by J-Corp and Kimpura suing Walter for about $700,000 all about?'[Mr Buckeridge]: 'This claim is based on figures compiled by Pricewaterhouse Coopers, which had been nominated by Walter to carry out calculations for the Deed. I think the reason that he does not want to pay is because he does not have the money to pay'." The respondent pleads a false and true innuendo in terms that:"[Mr Walter] had not paid approximately $700,000 to J‑Corp Pty Ltd and Kimpura Pty Ltd which sum he was legally obliged to pay, because he did not have the money to do so." The extrinsic facts relied on (par 5) for the true innuendo include that at the time of the conversation, Mr Prior was aware that a writ had been issued by J‑Corp and Kimpura against Oswald Homes (1972) Pty Ltd, Rural Building Company Pty Ltd, WA Country Builders Pty Ltd, JWH Group Pty Ltd, Julian Walter Holdings Pty Ltd and Mr Walter claiming damages arising from the failure of Oswald Homes, Rural Building Company and WA Country Builders to pay to J‑Corp moneys totalling $698,946 plus interest owing pursuant to deeds executed on 6 June 2003 and 31 July 2003 being a "Deed Governing Sale" and a "Deed of Variation ‑ Deed Governing Sale" ("the deeds"). The respondent pleads that the slander was actionable per se because it was calculated to disparage Mr Walter in his personal credit and in respect to his trade, business, occupation and calling. The particulars in support of that claim are that Mr Walter was the promoter, founder and managing director of JWH Group Pty Ltd. The words complained of the subject of the libel claim, which include the headline "Buckeridge, Walter sling brickbats" are as follows:"THE 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 materials 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 intepretation [sic] 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 a 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."