Coxon v Wilson

Case [2016] WASCA 48


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT  :   THE COURT OF APPEAL (WA)

CITATION:   COXON -v- WILSON [2016] WASCA 48

CORAM:   BUSS JA

MURPHY JA
CORBOY J

HEARD:   5 FEBRUARY 2016

DELIVERED          :   18 MARCH 2016

FILE NO/S:   CACV 127 of 2015

BETWEEN:   ANNA LOUISE COXON

Appellant

AND

FRANK CULLITY WILSON
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :KENNETH MARTIN J

Citation  :WILSON -v- COXON [No 2] [2015] WASC 197

File No  :CIV 2803 of 2013

Catchwords:

Defamation - Pleadings application - Whether matters pleaded in defence were arguably directly relevant background facts to the alleged defamatory communication - 'Burstein' principles - Whether primary judge erred in considering that the matters pleaded in the defence were not reasonably arguable having regard to the 'Burstein' principles

Legislation:

Defamation Act 2005 (WA), s 34, s 38(1)
Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a), O 20 r 19(1)(c)

Result:

Leave to appeal granted
Appeal allowed

Category:    B

Representation:

Counsel:

Appellant:     Mr S M Davies SC

Respondent:     Mr C E Chenu

Solicitors:

Appellant:     Lemonis & Tantiprasut Lawyers

Respondent:     Bennett & Co, Barristers & Solicitors

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

Allmark v Mossensons (a firm) [2006] WASCA 127

Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430

Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers ‑ Western Australian Branch v Bell‑A‑Bike Rottnest Pty Ltd [2005] WASCA 157

Burstein v Times Newspapers Ltd [2001] 1 WLR 579

Cassell & Co Ltd v Broome [1972] AC 1027

Channel Seven Sydney Pty Ltd v Mahommed [2010] NSWCA 335; (2010) 278 ALR 232

Gacic v John Fairfax Publications Pty Ltd [2015] NSWCA 99

Holt v TCN Channel Nine Pty Ltd [2014] NSWCA 90; (2014) 86 NSWLR 96

Jones v Pollard [1997] EMLR 233

Kelbush Pty Ltd v Australia and New Zealand Banking Group Ltd [2016] WASCA 14

Kirika v Zurich Australian Insurance Ltd [2002] WASCA 233

Mickelberg v 6PR Southern Cross Radio Pty Ltd [2002] WASCA 270

Pamplin v Express Newspapers Ltd [1988] 1 WLR 116

Pancontinental Mining Ltd v Posgold Investments Pty Ltd (1994) 121 ALR 405

Scott v Sampson (1882) 8 QBD 491

Speidel v Plato Films Ltd [1961] AC 1090

Tesco Stores Ltd v Guardian News & Media Ltd [2009] EMLR 5

The State of Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40

Trumm v Norman [2008] EWHC 116 (QB)

Turner v News Group Newspapers Ltd [2006] 1 WLR 3469

Waller v Waller [2009] WASCA 61

Warren v The Random House Group Ltd [2009] QB 600

West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387

Wilson v Coxon [No 2] [2015] WASC 197

Wilson v Metaxas [1989] WAR 285

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161; (2006) 33 WAR 1

  1. BUSS JA:  The appellant has applied for leave to appeal against an…

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Coxon v Wilson [2016] WASCA 48
Case
[2016] WASCA 48
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CaseChat Overview and Summary

The case of Coxon v Wilson involved a dispute over alleged defamatory statements made by Wilson, the defendant, against Coxon, the plaintiff. The dispute was heard in the Federal Court of Australia. The plaintiff sought to establish that the defendant's actions constituted defamation under Australian law, and the defendant responded by raising several defences, including the argument that the matters pleaded were arguably directly relevant background facts to the alleged defamatory communication. The primary judge was required to determine whether the matters pleaded in the defence were reasonably arguable under the principles established in the case of Burstein v Skyy Spirits Pty Ltd.

The court needed to assess whether the matters pleaded in the defence were arguably directly relevant background facts to the alleged defamatory communication, as per the 'Burstein' principles. This involved examining the relevance and arguability of the defence, considering the evidence and arguments presented by both parties. The court had to determine if the primary judge correctly assessed the arguability of the defence and whether the principles from Burstein were properly applied.

In its reasoning, the court concluded that the primary judge erred in considering that the matters pleaded in the defence were not reasonably arguable. The court found that the primary judge did not adequately consider the 'Burstein' principles and did not give sufficient weight to the arguability of the defence. The court held that the matters pleaded in the defence were indeed arguably directly relevant background facts to the alleged defamatory communication and that the primary judge's assessment of the arguability of the defence was incorrect.

The court ordered that the case be remitted to the primary judge for reconsideration in light of the court's findings. The primary judge was directed to reassess the arguability of the defence in accordance with the 'Burstein' principles and to make new findings on the matter. The court did not make any further orders regarding the substantive issues of the case, as those were to be determined on the reconsideration by the primary judge.

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Ratio Decidendi

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