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)
Automotive, Food, Metals, Engineering, Printing & Kindred Industries Union of Workers ‑ Western Australian Branch v Bell‑A‑Bike Rottnest Pty Ltd [2005] WASCA 157
BUSS JA: The appellant has applied for leave to appeal against an…
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 Coxon v Wilson
Sign in free to access the full text
Details
AGLC
Coxon v Wilson [2016] WASCA 48
Case
[2016] WASCA 48
Decision Date
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.