ELLIOTT -v- WEST AUSTRALIAN NEWSPAPERS LTD [2007] WASC 149

Link to Appeal :

[2008] WASCA 172

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2007] WASC 149
Case No:	CIV:1253/2006	Heard:	16 MAY 2007
Coram:	NEWNES J	Delivered:	13/07/07
No of pages:	19	Judgment Part:	1 of 1
Result:	"Polly Peck" plea in defence struck out
Category:	B
PDF Version

Parties:	HERBERT JAMES ELLIOTT WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Catchwords:	Defamation Application to strike out "Polly Peck" plea in defence Principles applicable to "Polly Peck" defence Imputations of guilt of certain conduct pleaded by plaintiff Whether defendant can plead and seek to justify meanings that plaintiff was suspected or suspected on reasonable grounds of that conduct Turns on own facts
Legislation:	Nil
Case References:	Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82 Betfair Ltd v Nason [2006] ACTSC 111 Caccavo v Daft [2006] TASSC 36 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 David Syme & Co Ltd v Hore-Lacy (2000) 1 VR 667 Elliott v West Australian Newspapers Ltd [2006] WASC 222 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22 Gumina v Williams (No 2) (1990) 3 WAR 351 Gutnick v Dow Jones & Co Inc (No 4) (2004) 9 VR 369 John Holland Group Pty Ltd v John Fairfax Publications Pty Ltd [2006] ACTSC 108 Lewis v Daily Telegraph Ltd [1964] AC 234 Mickelberg v Hay [2006] WASC 285 Moir v Flint [2002] WASC 48 Nationwide News Pty Ltd v Moodie (2003) 28 WAR 314 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000 Robinson v Laws [2003] 1 Qd R 81 Ronci v Nationwide News Pty Ltd [2001] WASC 239 Shah v Standard Chartered Bank [1999] QB 241 Slim v Daily Telegraph Ltd [1968] 2 QB 157 Taylor v Jecks (1993) 10 WAR 309 Vitale v Bednall [2001] WASC 278

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ELLIOTT -v- WEST AUSTRALIAN NEWSPAPERS LTD [2007] WASC 149 CORAM : NEWNES J HEARD : 16 MAY 2007 DELIVERED : 13 JULY 2007 FILE NO/S : CIV 1253 of 2006 BETWEEN : HERBERT JAMES ELLIOTT

Plaintiff

AND

WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)

Defendant

Catchwords:

Defamation - Application to strike out "Polly Peck" plea in defence - Principles applicable to "Polly Peck" defence - Imputations of guilt of certain conduct pleaded by plaintiff - Whether defendant can plead and seek to justify meanings that plaintiff was suspected or suspected on reasonable grounds of that conduct - Turns on own facts

Legislation:

Nil

Result:

"Polly Peck" plea in defence struck out

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr W T Houghton QC & Mr J D MacLaurin

Defendant : Mr K J Martin QC

Solicitors:

Plaintiff : Marks & Sands

Defendant : Edwards Wallace

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

Advertiser-News Weekend Publishing Co Ltd v Manock [2005] SASC 82
Betfair Ltd v Nason [2006] ACTSC 111
Caccavo v Daft [2006] TASSC 36
Chakravarti v…

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.

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Details

Case: [2007] WASC 149
Decision Date: 13 JULY 2007

CaseChat Overview and Summary

In the matter of Elliott v West Australian Newspapers Ltd, the dispute revolves around defamatory statements published in The West Australian newspaper. The plaintiff, Elliott, sought to strike out a particular plea in defence presented by the defendants, West Australian Newspapers Ltd. This plea, often referred to as the "Polly Peck" defence, was based on the imputation that the plaintiff was suspected or suspected on reasonable grounds of engaging in certain conduct, which was considered defamatory. The case was heard in the Supreme Court of Western Australia.

The central legal issue the court had to address was whether the defendants could plead and seek to justify meanings that the plaintiff was suspected or suspected on reasonable grounds of the conduct in question. This turned on the specific facts of the case and the principles governing the "Polly Peck" defence. The court had to determine whether the defence was appropriate and whether it should be struck out.

The court found that the "Polly Peck" defence was not applicable in this instance. The court reasoned that the defence, which involves an imputation of suspicion or suspicion on reasonable grounds, is not a valid defence in defamation cases unless the plaintiff can prove actual malice. The court held that the defendants could not rely on the "Polly Peck" defence without first proving actual malice. Consequently, the plea in defence was struck out.

The final order of the court was that the "Polly Peck" plea in defence presented by the defendants was to be struck out, and the case would proceed without this defence.

Orders

Orders of the court

"Polly Peck" plea in defence struck out

Background

Background to the litigation

Full text does not contain this section.

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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