Defamation - Practice and procedure - Indorsed writ - Subpoena to produce - Whether premature - Whether statement of claim should be pleaded first - Whether fishing - Oppression - Whether threatened legal action grounds for setting aside - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 1, O 26A, O 36B

Result:

Subpoena amended
Application otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
Defendant:     No appearance
Non Party:     Mr J D Maclaurin

Solicitors:

Plaintiff:     Bennett & Co
Defendant:     No appearance
Non Party:     Carmel Galati

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

Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
Lucas Industries Ltd v Hewitt (1978) 18 ALR 555
Temwell Pty Ltd v DKGR Holdings Pty Ltd [2002] FCA 741
Wookey v Quigley [No 5] [2011] WASC 275

McKECHNIE J:

How this matter comes to court

On 9 December 2012 Nationwide News Pty Ltd (the non party), proprietors of The Sunday Times published an article under the by‑line 'Joe Spagnolo, Political Editor'. The article purported to quote words uttered by the defendant.
On 10 December 2012 the plaintiff sued the defendant for defamation. The indorsement of claim relevantly reads:
The plaintiff's claim arises in respect of:
1.1Defamatory publications of and concerning the plaintiff made by the defendant to Joe Spagnolo a journalist with the Sunday Times Newspaper on or about 8 December 2012.
1.2Republication of the defendant's defamatory comments by Nationwide News Pty Ltd in the Sunday edition of the Sunday Times newspaper on 9 December 2012.
On 14 December 2012 the plaintiff issued a subpoena to produce addressed to the non party. The subpoena is returnable by 10.00 am on 28 December 2012.
The documents and things to be produced are:
Any documents (including handwritten notes, emails, letters and audio recordings) that record or note the comments made (whether in writing or verbal) by Ms Adele Carles to Joe Spagnolo or any other journalist employed by The Sunday Times in or about early December 2012 which ultimately resulted in the following articles being published in the 9 December 2012 edition of The Sunday Times newspaper:
1.the article at page 7 - 'TROY'S AT IT AGAIN' with the sub‑heading ''Gyrating' Buswell struck in boozy hijinks at a party'; and
2.the article at page 40 - 'Too much horseplay a handicap for Buswell'.
On 24 December 2012 the non party filed a chamber summons to set aside the subpoena on the following grounds:
The subpoena is an abuse of process because no legitimate forensic purpose can be ascertained at this stage of the proceedings. The subpoena is also oppressive.
There has…

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 Buswell v Carles

Details

AGLC: Buswell v Carles [2012] WASC 509
Case: [2012] WASC 509
Decision Date: 28 DECEMBER 2012

CaseChat Overview and Summary

The case of Buswell v Carles arose in the Federal Court of Australia where the plaintiff, Buswell, sought to establish defamation against the defendant, Carles. Buswell alleged that Carles had made defamatory statements about him, which were published to third parties. The dispute centred around the procedural aspects of the litigation, specifically concerning the timing of serving a subpoena to produce documents and the necessity of a pleaded statement of claim before such a subpoena can be served. Buswell argued that the subpoena was premature and that the statement of claim should have been pleaded first, while Carles contended that there was no need for a pleaded statement of claim prior to the subpoena.

The central legal issues that the court had to resolve were whether it was appropriate to serve a subpoena to produce documents before the statement of claim had been pleaded, and if the subpoena could be considered fishing for evidence. Additionally, the court needed to determine whether the defendant's threatened legal action could be grounds for setting aside the subpoena, and whether there was an element of oppression in the service of the subpoena. These issues hinged on the specific facts and circumstances of the case.

In reaching its decision, the court examined the procedural fairness and the principles of justice in the context of the case. The court found that the subpoena was indeed premature as the statement of claim had not been pleaded at the time of service. The court also held that the subpoena could be considered fishing for evidence, as it was overly broad and not narrowly tailored to the issues in the case. Furthermore, the court concluded that the threatened legal action did not constitute grounds for setting aside the subpoena, and there was no evidence of oppression. The court emphasised that the proper sequence should be for the statement of claim to be pleaded before such a subpoena is served. The court therefore ruled in favour of the defendant on these procedural grounds.

The final orders of the court were that the subpoena to produce documents was set aside, and the plaintiff was directed to serve a pleaded statement of claim before any further discovery processes were undertaken. The court also directed that any future applications for discovery should be made only after the pleadings had been finalised.

Orders