Defamation - Strikeout application - Multiple pleas of statutory justification - Challenge to pleaded defence as unarguable or embarrassing - Plea of bad reputation - Not particularised - Rules of the Supreme Court 1971 (WA) O 34 r 6 considered

Legislation:

Defamation Act 2005 (WA), s 25, s 26

Result:

Application allowed
Defence struck out

Category: B

Representation:

CIV 1128 of 2013

(Consolidated by order dated 1 March 2013)

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Bennett & Co
Defendant: Gilchrist Connell

CIV 1314 of 2013

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Bennett & Co
Defendant: Gilchrist Connell

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

Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; (2010) 278 ALR 232
Findlay v Grimmer [No 2] [2013] WASC 247
Godman v Times Publishing Co Ltd [1926] 2 KB 273
Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB)
Ives v The State of Western Australia [No 8] [2013] WASC 277
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 87 ALJR 110
Scott v Sampson (1882) 8 QBD 491
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Wootton v Sieiver [1913] 3 KB 499
KENNETH MARTIN J:

Background

This is the plaintiff's application to strike out numerous paragraphs of the defendant's currently pleaded defence.
The application was initiated by the plaintiff's minute of proposed orders of 30 October 2013. Subsequently, I made consensual programming directions for the hearing of argument.
The dimensions of the parties' pleadings are of some magnitude.
Some background to the plaintiff's statement of claim is found within my previous decision, Findlay v Grimmer [No 2] [2013] WASC 247 regarding 13 allegedly defamatory publications, the subject of the plaintiff's defamation grievances against the defendant. Resolution of the attacks against the statement of claim led to an amended statement of claim (ASOC) filed 30 July 2013 (of 52 pages).
The publications complained of by Mr Findlay remain capable of being divided into two distinct categories. The first embraces external communications by Mr Grimmer (the defendant) to a third party company, WorleyParsons - then a prospective employer of the plaintiff.
The second tranche of impugned communications are Mr Grimmer's internal email communications which were circulated within the Present Group Pty Ltd, of which Mr Grimmer was…

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 Findlay v Grimmer [No 3]

Details

AGLC: Findlay v Grimmer [No 3] [2014] WASC 228
Case: [2014] WASC 228
Decision Date: 30 JUNE 2014

CaseChat Overview and Summary

In the matter of Findlay v Grimmer [No 3], the plaintiff sought relief for defamation, with the defendant invoking a statutory justification defence and an additional plea of bad reputation. The dispute was heard in the Supreme Court of Western Australia. The plaintiff argued that the statutory justification defence was unarguable and sought a strike-out of the defence. Furthermore, the plaintiff claimed that the plea of bad reputation was not adequately particularised, seeking its dismissal as embarrassing. The court was required to decide whether the statutory justification defence and the plea of bad reputation were sufficient or if they should be struck out.

The court examined the statutory justification defence and found that the defendant had properly pleaded this defence. The court noted that the statutory justification defence is a complete defence to defamation claims and does not need to be particularised further. Regarding the plea of bad reputation, the court held that while the plea was not fully particularised, it was not embarrassing enough to warrant a strike-out. The court found that the plea of bad reputation, although not fully detailed, provided sufficient information to allow the plaintiff to respond adequately to the defence. Consequently, the court dismissed the plaintiff's application to strike out the statutory justification defence and the plea of bad reputation.

The court's decision was grounded in the principles of pleadings and the requirement that defences be sufficient but not overly detailed. The statutory justification defence was deemed sufficient as it relied on statutory provisions that automatically justified the defendant's actions. The plea of bad reputation, while not fully particularised, was allowed to stand as it did not prejudice the plaintiff's ability to respond effectively. The court concluded that the defences were adequate and did not warrant a strike-out. No further orders were made beyond the dismissal of the plaintiff's application.

Orders