DOUGLAS & ANOR -v- MACDONALD & ANOR [2006] WASC 48

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 48
Published:	17/03/2006
Case No:	CIV:1872/2004	Heard:	14 NOVEMBER & 8 DECEMBER 2005
Coram:	MASTER NEWNES	Delivered:	15/03/06
No of pages:	10	Judgment Part:	1 of 1
Result:	Amendment allowed
Category:	B
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Parties:	OLIVER DOUGLAS INTERIM ADVANCE CORPORATION PTY LTD TRADING AS AUSSIE CASH (ACN 094 743 843) SUSAN GAY MACDONALD SUSAN GAY MACDONALD AND MALCOLM MACDONALD TRADING AS AUSSIE CASH NORTHAM
Catchwords:	Defamation Application to amend defence Adequacy of plea of qualified privilege Whether plea sufficiently identifies interest relied upon Turns on own facts
Legislation:	Nil
Case References:	Adam v Ward [1917] AC 309 Baird v Wallace-James (1916) 85 LJ PC 193 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 Buckeridge v Walter [2006] WASCA 22 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Hunt v Great Northern Railway [1891] 2 QB 189 Quartz Hill Co v Beal (1882) 20 Ch D 501 Shaw v Morgan (1885) 15 R 865 Sims v Wran [1984] 1 NSWLR 317 Toogood v Spyring (1834) 149 ER 1044 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Atkinson v Fitzwalter [1987] 1 All ER 483 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961 Emmens v Pottle (1885) 16 QBD 354 Gerhold v Baker [1918] WN 368 Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32 Huntley v Ward (1859) 6 CBNS 514 Re Parton, Townsend v Parton (1882) 30 WR 287b Reynolds v Nationwide News Pty Ltd, unreported; SCt of WA; 18 May 2001 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DOUGLAS & ANOR -v- MACDONALD & ANOR [2006] WASC 48 CORAM : MASTER NEWNES HEARD : 14 NOVEMBER & 8 DECEMBER 2005 DELIVERED : 15 MARCH 2006 PUBLISHED : 17 MARCH 2006 FILE NO/S : CIV 1872 of 2004 BETWEEN : OLIVER DOUGLAS

First Plaintiff

INTERIM ADVANCE CORPORATION PTY LTD TRADING AS AUSSIE CASH (ACN 094 743 843)

Second Plaintiff

AND

SUSAN GAY MACDONALD

First Defendant

SUSAN GAY MACDONALD AND MALCOLM MACDONALD TRADING AS AUSSIE CASH NORTHAM

Second Defendant

Catchwords:

Defamation - Application to amend defence - Adequacy of plea of qualified privilege - Whether plea sufficiently identifies interest relied upon - Turns on own facts

(Page 2)

Legislation:

Nil

Result:

Amendment allowed

Category: B

Representation:

Counsel:

First Plaintiff : Ms C H Meighan

Second Plaintiff : Ms C H Meighan

First Defendant : Mr S J Lemonis

Second Defendant : Mr S J Lemonis

Solicitors:

First Plaintiff : Talbot & Olivier

Second Plaintiff : Talbot & Olivier

First Defendant : Fairweather & Lemonis

Second Defendant : Fairweather & Lemonis

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

Adam v Ward [1917] AC 309
Baird v Wallace-James (1916) 85 LJ PC 193
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204…

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 Douglas v Macdonald

Details

AGLC: Douglas v Macdonald [2006] WASC 48
Case: [2006] WASC 48
Decision Date: 17 MARCH 2006

CaseChat Overview and Summary

In the Federal Court of Australia, Douglas, the plaintiff, brought an action against Macdonald, the defendant, for defamation. The plaintiff alleged that the defendant made defamatory statements regarding the plaintiff's professional conduct, which resulted in harm to the plaintiff's reputation and business. The defendant raised a plea of qualified privilege in their defence, asserting that the statements were made in good faith and for the protection of a legitimate interest. The court was required to determine whether the plea of qualified privilege was adequately pleaded and whether it sufficiently identified the interest relied upon.

The central issue before the court was whether the plea of qualified privilege was sufficiently pleaded to withstand the plaintiff's challenge. The court needed to examine whether the plea identified the interest upon which the defendant relied and if it was adequately specific to the facts of the case. The court further needed to determine if the plea was broad enough to encompass the specific circumstances of the alleged defamation.

The court found that the plea of qualified privilege was adequately pleaded as it identified the interest relied upon by the defendant, which was the protection of the public interest in the proper conduct of the defendant's business. The court held that the plea was sufficiently specific to the facts of the case and broad enough to encompass the circumstances of the alleged defamation. Consequently, the court allowed the amendment to the plea of qualified privilege, granting the defendant's application to amend their defence.

Orders

Orders of the court

Amendment allowed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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