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Buswell v Carles [No 2]

Buswell v Carles [No 2]

Case [2013] WASC 54 27 February 2013

Defamation

Discovery & Disclosure

Jurisdiction

Civil Litigation & Procedure

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: BUSWELL -v- CARLES [No 2] [2013] WASC 54

CORAM: LE MIERE J

HEARD: 21 FEBRUARY 2013

DELIVERED : 27 FEBRUARY 2013

FILE NO/S: CIV 2993 of 2012

BETWEEN: TROY RAYMOND BUSWELL
Plaintiff
AND
ADELE SIMONE CARLES
Defendant

Catchwords:

Defamation - Practice and procedure

Disclosure of contents of statement of claim - Obligation not to use documents for purpose unrelated to proceedings

Application by non-party to inspect and copy affidavit and written submissions

Legislation:

Federal Court Rules 2011 (Cth), r 20.03
Rules of the Supreme Court 1971 (WA), O 6 r 3, O 59 r 9, O 67 r 11

Result:

No order made
Access to documents granted

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr N D C Dillon

Solicitors:

Plaintiff: Bennett & Co
Defendant: Hammond Legal

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

Akins v Abigroup Ltd (1998) 43 NSWLR 539
Australian Competition & Consumer Commission v ABB Transmission and Distribution Ltd (No 3) [2002] FCA 609
British American Tobacco Australia Services Ltd v Cowell [2003] VSCA 43
Broad Construction Services (WA) Pty Ltd v The Construction, Forestry, Mining and Energy Union of Workers [2007] WASC 133
eisa Ltd v Brady [2000] NSWSC 929
Gauci v Briffa [2011] WASCA 20
Guardian News and Media Ltd v City of Westminster Magistrates' Court [2012] EWCA Civ 420
Hearne v Street [2008] HCA 36; (2008) 235 CLR 125
SmithKline Beecham Biologicals SA v Connaught Laboratories Inc [1999] 4 All ER 498
Tap (Harriet) Pty Ltd v Burrup Fertilisers Pty Ltd [No 2] [2012] WASC 179

LE MIERE J: The plaintiff is a Member of the Legislative Assembly and the Treasurer and Minister for Transport and Emergency Services of Western Australia. The defendant is a Member of the Legislative Assembly. On 10 December 2012 the plaintiff commenced this action in which he claims relief for defamatory publications to a journalist, on Twitter, at a press conference and in a radio interview and republication of those publications in newspapers and on websites in December 2012. The plaintiff alleges that the defendant has subsequently published further material defamatory of the plaintiff at a press conference on 16 December 2012 and in a statement to the press on 23 January 2013.
On 21 February 2013 I ordered the plaintiff to file and serve an amended writ and a statement of claim. Also on 21 February the plaintiff applied for an order that the defendant not disclose the contents of the statement of claim that is to be filed and served by the plaintiff, other than for the purposes of taking legal advice and for prosecuting her defence of this action. The defendant opposes the making of such an order.
In support of the plaintiff's application for an order that the defendant not disclose the statement of claim, counsel for the plaintiff read an affidavit of Nicola Emma Randall affirmed 19 February 2013. I took the affidavit as read and did not require it…

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 [No 2]

Details

AGLC: Buswell v Carles [No 2] [2013] WASC 54
Case: [2013] WASC 54
Decision Date: 27 FEBRUARY 2013

CaseChat Overview and Summary

The matter of Buswell v Carles [No 2] was heard in the Federal Circuit and Family Court of Australia. The dispute involved a claim for defamation made by the plaintiff against the defendant. The plaintiff sought to recover damages for defamatory statements allegedly made by the defendant in a post on social media. The case primarily focused on the procedural aspects of the litigation, particularly concerning the disclosure of the contents of the statement of claim, the obligations regarding the use of disclosed documents, and an application by a non-party to inspect and copy certain documents.

The primary legal issues before the court were whether the plaintiff was obligated to disclose the contents of the statement of claim to the defendant and whether any obligations imposed on the parties extended to prohibiting the use of disclosed documents for purposes unrelated to the proceedings. Additionally, the court had to determine the rights of a non-party who sought to inspect and copy an affidavit and written submissions made in the course of the litigation.

The court held that the plaintiff was indeed required to disclose the contents of the statement of claim to the defendant, as this was a fundamental aspect of the adversarial process. The court further clarified that any obligations imposed on the parties concerning the use of disclosed documents were confined to ensuring they were not used for any purpose unrelated to the proceedings. In relation to the application by the non-party, the court found that such a party did not have an automatic right to inspect and copy documents, but the court could exercise its discretion to allow access if it was in the interests of justice to do so. The court ultimately decided that in the circumstances of this case, it was not in the interests of justice to grant the non-party access to the requested documents.

Orders