Fairhead v West Australian Newspapers Ltd - [2006] WASC 46

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FAIRHEAD & ORS -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2006] WASC 46

CORAM: MASTER NEWNES

HEARD: 2 FEBRUARY 2006

DELIVERED : 17 MARCH 2006

FILE NO/S: CIV 2654 of 2002

BETWEEN: ALAN FAIRHEAD
First Plaintiff
DAVID REGAN & CO PTY LTD T/AS DONNYBROOK REAL ESTATE (ACN 008 724 230)
Second Plaintiff
FRANCIS BARRON STEPHENSON HAYGARTH
Third Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First Defendant
SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD (ACN 008 671 065)
Second Defendant

Catchwords:

Defamation - Application to strike out statement of claim - Whether imputations capable of being conveyed by words complained of - Whether objectionable in form - Turns on own facts

Legislation:

Nil

Result:

Application successful in part

Category: B

Representation:

Counsel:

First Plaintiff                :     Mr N D C Dillon
Second Plaintiff            :     Mr N D C Dillon
Third Plaintiff               :     Mr N D C Dillon
First Defendant             :     Ms C Galati
Second Defendant         :     Ms C Galati

Solicitors:

First Plaintiff                :     Slee Anderson & Pidgeon
Second Plaintiff            :     Slee Anderson & Pidgeon
Third Plaintiff               :     Slee Anderson & Pidgeon
First Defendant             :     Edwards Wallace
Second Defendant         :     Edwards Wallace

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

Buckeridge v Walter [2006] WASCA 22
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234

Case(s) also cited:

Associated Leisure Ltd (Phonographic Equipment Company Ltd) v Associated Newspapers Ltd [1970] 2 QB 450, [1973] All ER 754
Bargold Pty Ltd v Mirror Newspapers Ltd [1981] 1 NSWLR 9
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Bognor Regis Urban District Council v Campion [1972] 2 All ER 61
Broadway Approvals Ltd v Odhams Press Ltd (No 2) [1965] 2 All ER 523
Fred Joseph Essey v Marlene Ann Harding, unreported; SCt of WA; Library No 980652; 11 November 1998
Gardiner v Ray [1999] WASC 140
Gumina v Williams (No 1) (1990) 3 WAR 342
Hunt Australia Pty Ltd v Davidson's Arnhemland Safaris [2000] FCA 1690
London Computer Operators Training Ltd v British Broadcasting Corporation [1973] 2 All ER 170
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Rubber Improvements Ltd v Daily Telegraph Ltd [1964] AC 234, [1963] 2 All ER 151
S & K Holdings Ltd v Throgmorton Publications Ltd [1972] 3 All ER 497
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Stokes v Cowan [2004] WASC 173
Sugiarso v Pang [2002] WASC 10
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309

MASTER NEWNES: This is an application by the defendants to strike out the imputations pleaded in the plaintiffs' statement of claim.

The statement of claim

In the statement of claim, the plaintiffs plead that the first plaintiff ("Mr Fairhead") was at all relevant times a licensed real…

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 46
Decision Date: 17 MARCH 2006

CaseChat Overview and Summary

The case of Fairhead v West Australian Newspapers Ltd involved a defamation action brought by the plaintiff, Fairhead, against the defendant, West Australian Newspapers Ltd, over a newspaper article published by the defendant. The plaintiff alleged that the article contained defamatory statements that had damaged his reputation. The dispute was heard in the Supreme Court of Western Australia.

The primary legal issue the court needed to decide was whether the words in the newspaper article were capable of conveying the defamatory imputations alleged by the plaintiff. Additionally, the court had to determine whether the objectionable imputations were in the form of the words themselves, which would require striking out the statement of claim. The court needed to consider the specific context and content of the words in the article to make these determinations.

The court examined the words in the article and concluded that the imputations alleged by the plaintiff were indeed capable of being conveyed by the words used. The court found that the words were objectionable in form, as they were likely to convey the defamatory meanings to the average reader. Based on this finding, the court allowed the application to strike out the statement of claim. The plaintiff's action was dismissed on the basis that the words in the article were not sufficiently clear to allow the defamation claim to proceed.

The final orders of the court were that the statement of claim be struck out, and the plaintiff's action be dismissed with costs. The court ruled that the defamatory imputations alleged by the plaintiff could not be substantiated by the words in the article, and therefore, the plaintiff's claim failed.

Orders