ELLIOTT -v- WEST AUSTRALIAN NEWSPAPERS LTD [2006] WASC 222

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 222
Case No:	CIV:1253/2006	Heard:	29 AUGUST 2006
Coram:	MASTER NEWNES	Delivered:	29/09/06
No of pages:	12	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
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Parties:	HERBERT JAMES ELLIOTT WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Catchwords:	Defamation Application to strike out pleaded imputations Whether imputations capable of being conveyed Whether embarrassing Relevant principles Turns on own facts
Legislation:	Nil
Case References:	Buckeridge v Walter [2006] WASCA 22 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Gumina v Williams (No 1) (1990) 3 WAR 342 Hill v Westfield [2003] NSWSC 437 Jones v Skelton [1963] 1 WLR 1362 Lewis v Daily Telegraph Ltd [1964] AC 234 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224 Taylor v Jecks (1993) 10 WAR 309 Bond v West Australian Newspapers Ltd [2004] WASC 181 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Llewellyn v Nine Network Australia Pty Ltd [2006] FCA 836 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245 Roberman v Australian Broadcasting Corporation [2002] WASC 301 Robinson v Quinlivan [2005] WASC 196 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ELLIOTT -v- WEST AUSTRALIAN NEWSPAPERS LTD [2006] WASC 222 CORAM : MASTER NEWNES HEARD : 29 AUGUST 2006 DELIVERED : 29 SEPTEMBER 2006 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 pleaded imputations - Whether imputations capable of being conveyed - Whether embarrassing - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Application dismissed

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : Mr J D MacLaurin

Defendant : Mr K J Martin QC

Solicitors:

Plaintiff : Marks & Sands

Defendant : Edwards Wallace

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

Buckeridge v Walter [2006] WASCA 22
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Gumina v Williams (No 1) (1990) 3 WAR 342
Hill v Westfield [2003] NSWSC 437
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224
Taylor v Jecks (1993) 10 WAR 309

Case(s) also cited:

Bond v West Australian Newspapers Ltd [2004] WASC 181
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Llewellyn v Nine Network Australia Pty…

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: [2006] WASC 222
Decision Date

CaseChat Overview and Summary

The case of Elliott v West Australian Newspapers Ltd, heard by Master Newnes in the Supreme Court of Western Australia, involved a defamation claim brought by Herbert James Elliott against West Australian Newspapers Ltd. The defendant sought to strike out the defamatory imputations pleaded by the plaintiff in the statement of claim, arguing that they were not capable of being conveyed by the words complained of or were embarrassing. The plaintiff alleged that the defendant's article implied that he had dishonestly and illegally profited from the sale of Fortescue shares by using information concerning contracts between Fortescue and Chinese investors, abused his position as a director and deputy chairman of Fortescue for personal gain, and told a deliberate untruth by stating that he had no knowledge of the existence of the contracts between Fortescue and Chinese investors. The court found that the imputations were arguably capable of being conveyed by the words complained of and were not embarrassing, and therefore dismissed the defendant's application. The court held that the article, read in its context, was suggesting that it was more than mere coincidence that the deputy chairman of Fortescue happened to sell a substantial parcel of shares only days before the company revealed information which caused a drastic reversal in its share price. The imputations of dishonesty, illegality, and abuse of position were sufficiently distinct to not cause any difficulty that would justify striking out the relevant paragraphs. The court also found that the plea in paragraph 4.4 was arguable, in the context, a reasonable reader would understand the reference to the plaintiff's insistence that he had no knowledge at all of the Chinese contracts as suggesting that it was untruthful.

Orders