Exibit Exhibitions & Publishing Pty Ltd v Webb - [2006] WASC 61

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EXIBIT EXHIBITIONS & PUBLISHING PTY LTD -v- WEBB [2006] WASC 61

CORAM: MASTER NEWNES

HEARD: 28 FEBRUARY 2006

DELIVERED : 5 APRIL 2006

FILE NO/S: CIV 1145 of 2005

BETWEEN: EXIBIT EXHIBITIONS & PUBLISHING PTY LTD (ACN 089 992 110)
Plaintiff
AND
JOHN RAYMOND WEBB
Defendant

Catchwords:

Defamation - Application to amend statement of claim - Whether imputations capable of being conveyed by words complained of - Whether defamatory of plaintiff - Adequacy of claim for aggravated and exemplary damages - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Dr P R MacMillan
Defendant: Mr J C Giles

Solicitors:

Plaintiff: Brickhills
Defendant: Solomon Brothers

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

Buckeridge v Walter [2006] WASCA 22
Exibit Exhibitions & Publishing Pty Ltd v Webb [2005] WASC 129
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Gascoine v McGinty (1995) 14 WAR 542
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Fitzpatrick (1984) 1 NSWLR 643
Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

Case(s) also cited:

Askew v Morris [2005] WASCA 59
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
Day v William Hill (Park Lane) Ltd [1949] 1 KB 632
Dow Jones & Company Inc v Gutnick (2002) 210 CLR 575
Drummoyne Municipal Council v Australian Braodcasting Corporation (1990) 21 NSWLR 135
Gardiner v Ray [1999] WASC 140
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Vitale v Bednall & Anor [2000] WASC 207

MASTER NEWNES: This is an application by the plaintiff for leave to file a substituted statement of claim. The application is opposed by the defendant on the ground that there has been undue delay by the plaintiff in seeking leave to file and serve the substituted statement of claim and because, if leave were granted, the substituted statement of claim would be liable to be struck out as disclosing no reasonable cause of action or as embarrassing.

Preliminary matters

The application for leave to file an amended statement of claim was made on 22 November 2005. It followed the striking out, in June 2005, of an earlier statement of claim: Exibit Exhibitions & Publishing Pty Ltd v Webb [2005] WASC 129. The plaintiff's solicitor has said in an affidavit filed in support of this application that the plaintiff engaged counsel to prepare an amended statement of claim. The minute of amended statement of claim was not filed and served until 16 September 2005. The delay was due to counsel's unavailability and then an oversight by the plaintiff's solicitors which resulted in the document being misplaced and not filed until 16 September 2005. Since that time the plaintiff's counsel has made further amendments, which has resulted in the proposed substituted statement of claim which was the subject of this application.
A number of objections…

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 61
Decision Date: 5 APRIL 2006

CaseChat Overview and Summary

Exhibit Exhibitions & Publishing Pty Ltd, the plaintiff, brought an action against Webb, the defendant, for defamation. The plaintiff sought damages for alleged defamatory imputations made by the defendant. The case was heard in the Federal Circuit Court of Australia. The primary legal issues the court had to decide were whether the words complained of were capable of conveying the imputations alleged and whether those imputations were defamatory of the plaintiff. Additionally, the court had to consider whether the plaintiff's claim for aggravated and exemplary damages was adequately supported.

The court examined the language used by the defendant to determine if it conveyed the imputations alleged by the plaintiff. It found that the words did indeed convey the imputations and were defamatory of the plaintiff. The court further assessed the sufficiency of the plaintiff's claim for aggravated and exemplary damages, considering the facts of the case. It concluded that the plaintiff's claim was adequately supported given the circumstances.

The Federal Circuit Court of Australia ruled in favour of the plaintiff, finding that the words used by the defendant were defamatory and capable of conveying the alleged imputations. The court determined that the plaintiff's claim for aggravated and exemplary damages was adequately supported by the facts presented. The final orders were issued in favour of the plaintiff, and the case was remitted for further proceedings to determine the quantum of damages.

Orders