Cohen v McEvoy
[2003] WASCA 23
•7 MARCH 2003
COHEN -v- McEVOY [2003] WASCA 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASCA 23 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:43/2002 | 9 DECEMBER 2002 | |
| Coram: | ANDERSON J PARKER J OLSSON AUJ | 7/03/03 | |
| 4 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| B | |||
| PDF Version |
| Parties: | BRUCE COHEN JUDY McEVOY |
Catchwords: | Practice and procedure Appeals Defamation action Application after trial to file reply alleging express malice Prejudice Application refused |
Legislation: | Nil |
Case References: | Nil Bell v Lever Bros Ltd [1932] AC 161 Capital and Counties Bank v Henty (1880) 5 CPD 539 Cock v Hughes [2001] WASC 151 Geelong Building Society (in liq) v Encel [1996] 1 VR 594 Gerhold v Baker (1918) WN 368 Horrocks v Lowe (1975) AC 135 Howe & McColough v Lees (1910) 11 CLR 361 Jones v Littler (1841) 7M&W 423 Kiam v Neill [1996] EMLR 493 Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360 O'Brien v Komesaroff (1982) 150 CLR 310 Paltara Pty Ltd v Dempster (1991) 6 WAR 85 Pinniger v John Fairfax (1979) 53 ALJR 691 Ronald v Harper (1910) 11 CLR 63 Sims v Wran [1984] 1 NSWLR 317 Toogood v Spyring (1834) 1 Cr M&R 181 Ward v Weeks (1830) 7 Bing 211 Winstanley v Bampton [1943] KB 319 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : COHEN -v- McEVOY [2003] WASCA 23 CORAM : ANDERSON J
- PARKER J
OLSSON AUJ
- Appellant
AND
JUDY McEVOY
Respondent
Catchwords:
Practice and procedure - Appeals - Defamation action - Application after trial to file reply alleging express malice - Prejudice - Application refused
Legislation:
Nil
Result:
Appeal dismissed
(Page 2)
Category: B
Representation:
Counsel:
Appellant : Mr R A Zilkens
Respondent : Ms F C E Davis
Solicitors:
Appellant : Zilkens & Co
Respondent : Phillips Fox
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Bell v Lever Bros Ltd [1932] AC 161
Capital and Counties Bank v Henty (1880) 5 CPD 539
Cock v Hughes [2001] WASC 151
Geelong Building Society (in liq) v Encel [1996] 1 VR 594
Gerhold v Baker (1918) WN 368
Horrocks v Lowe (1975) AC 135
Howe & McColough v Lees (1910) 11 CLR 361
Jones v Littler (1841) 7M&W 423
Kiam v Neill [1996] EMLR 493
Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360
O'Brien v Komesaroff (1982) 150 CLR 310
Paltara Pty Ltd v Dempster (1991) 6 WAR 85
Pinniger v John Fairfax (1979) 53 ALJR 691
Ronald v Harper (1910) 11 CLR 63
Sims v Wran [1984] 1 NSWLR 317
Toogood v Spyring (1834) 1 Cr M&R 181
Ward v Weeks (1830) 7 Bing 211
Winstanley v Bampton [1943] KB 319
(Page 3)
1 JUDGMENT OF THE COURT: This is an appeal from a judgment of Hasluck J delivered on 22 February 2002 in which he decided to dismiss the appellant's claim for damages for slander. In the statement of claim it was pleaded that the respondent was a "Perth City Councillor" and that the appellant was "involved in litigation with the City of Perth" and that as to this the respondent had said to other members of the Council and to municipal staff that "we won't have to worry about him [the appellant] any more because he has been thrown out of his unit for not paying rent".
2 The appellant pleaded that these words "meant and were understood to mean that the [appellant] was not able to pay his debts as they fell due …".
3 Amongst the matters pleaded by way of defence was a plea by the respondent that if the words were spoken by her they were spoken on an occasion of qualified privilege.
4 Hasluck J found that the words were spoken and that they were defamatory and actionable per se but that they were spoken on an occasion of qualified privilege in that they were spoken at a briefing session the purpose of which was to inform the elected councillors of current issues which would have to be dealt with by the City. The litigation which had been started by the appellant against the City was one such issue; and it was in the course of discussion with respect to that issue that the words were spoken.
5 The finding that the occasion was privileged is not now challenged. The ground of appeal by which it was challenged was formally abandoned at the start of the hearing of the appeal. The decision to take this step was obviously correct. There was no prospect that the ground of appeal could succeed.
6 Mr Zilkens, who appeared for the appellant, frankly conceded that the finding in favour of the respondent that the slander was protected by qualified privilege was fatal to the appellant's case unless the appellant could rely on express malice. He was not in a position to do so at trial because he had not pleaded express malice by way of reply to the claim of qualified privilege. It should be observed that the appellant had conducted his own case and did in fact try to open up the question of malice by cross-examination but his attempts to do so were objected to on the ground that there was no plea of express malice; and because there was indeed no such plea the objections had to be upheld. It was, of course, then open to the appellant to make an application for leave to file a
(Page 4)
- reply out of time. Whether the application would have been successful is another question but no such application was made. It appears that the appellant simply accepted the Judge's ruling and the trial proceeded on the basis that there was no issue of express malice.
7 Mr Zilkens sought to overcome this formidable obstacle by moving this Court for leave to file a reply in order to allege malice. This motion was opposed by counsel for the respondent, Ms Davis and we held that it was far too late to allow such an important amendment. The issue of malice was not explored at trial for reasons just explained and it would be grossly unfair to the respondent to allow an amendment now.
8 That being our ruling Mr Zilkens accepted that the appeal could not succeed. That is in truth the position. The appeal cannot succeed and must be dismissed.
6
1