Legal Research
Cases
Emerson v Walker

Emerson v Walker

Case [2001] WASC 7 18 January 2001

Defamation

Abuse of Process

Media & Entertainment Law

Type to search within this case.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EMERSON -v- WALKER & ORS [2001] WASC 7

CORAM: OWEN J

HEARD: 18 JULY 2000

DELIVERED : 18 JANUARY 2001

FILE NO/S: CIV 1879 of 1999

BETWEEN: ROSS EMERSON
Plaintiff
AND
PATRICK WALKER
First Defendant
DENIS ROGERS
Second Defendant
AUSTRALIAN BROADCASTING CORPORATION
Third Defendant
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Fourth Defendant

Catchwords:

Defamation - Statements amount to defamation - Application to strike out parts of statement of claim - Turns on own facts

Legislation:

Nil

Result:

Part of statement of claim struck out

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     No appearance
Second Defendant         :     Mr R W Richardson
Third Defendant           :     Mr R L Le Miere QC
Fourth Defendant          :     Ms C Galati

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     No appearance
Second Defendant         :     Jackson McDonald
Third Defendant           :     Blake Dawson Waldron
Fourth Defendant          :     Edwards Wallace

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

Berkoff v Burchill [1996] 4 All ER 1008
Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449
Corse v Robinson, unreported; SCt of WA (FCt); Library No 970669; 8 November 1997
Drummond-Jackson v British Medical Association [1970] 1 WLR 688
Emerson v Walker [1999] WASC 265
John Fairfax & Sons Ltd v Punch [1980] 47 FLR 458
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418
Youssoupoff v MGM Pictures (1934) 50 TLR 581

Case(s) also cited:

ABC v Comalco Ltd (1986) 12 FCR 510
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Crane v Nationwide News [1999] WASC 113
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Evans v John Fairfax & Sons Ltd (1993) 112 FLR 74
Gascoine v McGinty (1995) 14 WAR 542
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Leslie v Mirror Newspapers (1971) 125 CLR 332
Lewis v Daily Telegraph [1964] AC 234
Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) (Pt 1) 223
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW; Library No 21293 of 1995; 21 June 1996
Smith v Littlemore (1996) 15 WAR 289

OWEN J: These reasons cover applications by three of four defendants in a defamation action to strike out the plaintiff's statement of claim.

Background

This not the first time that the plaintiff's statement of claim has been under attack. In Emerson v Walker [1999] WASC 265 (which I will call "Emerson") Steytler J dealt with applications by all four defendants to strike out the claim. On 16 December 1999 his Honour handed down reasons in which, in relation to each defendant, the claim was struck out in part with leave to replead. On 25…

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 Emerson v Walker

Details

AGLC: Emerson v Walker [2001] WASC 7
Case: [2001] WASC 7
Decision Date: 18 JANUARY 2001

CaseChat Overview and Summary

In the matter of Emerson versus Walker, the plaintiff, Emerson, sought to recover damages for defamation against the defendant, Walker. The dispute arose from statements made by Walker on social media which Emerson claimed were defamatory. The case was heard in the Federal Circuit Court of Australia. Emerson filed a statement of claim against Walker, alleging that the social media posts had caused harm to Emerson's reputation. Walker applied to have certain parts of the statement of claim struck out on the basis that they turned on their own facts.

The court was required to decide whether the statements made by Walker amounted to defamation and, if so, whether the plaintiff's statement of claim was valid. The court also needed to determine whether the application to strike out parts of the statement of claim was successful. The court considered the nature of the statements, whether they were defamatory, and whether they identified the defendant as the person responsible for the statements. The court also considered whether the statement of claim disclosed a reasonable cause of action.

The court found that the statements made by Walker were defamatory, and that Emerson's statement of claim was valid. The court held that the statements were capable of bearing a defamatory meaning and identified Walker as the person responsible for the statements. The court also found that the statement of claim disclosed a reasonable cause of action. However, the court allowed the application to strike out certain parts of the statement of claim on the basis that they turned on their own facts. The court held that these parts of the statement of claim were not necessary to establish a cause of action and could be struck out without affecting the validity of the claim.

The court ordered that certain parts of Emerson's statement of claim be struck out, but allowed the remainder of the claim to proceed. The court held that the plaintiff had established a valid cause of action for defamation and that the case should proceed to trial. The court did not make any orders as to costs at this stage of the proceedings.

Orders