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Fogarty v Nationwide News Ltd

Fogarty v Nationwide News Ltd

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Case Copied 14 January 2005 37 min read

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FOGARTY -v- NATIONWIDE NEWS LTD & ANOR [2005] WASC 2

CORAM: LE MIERE J

HEARD: 30 AUGUST 2004

DELIVERED : 14 JANUARY 2005

FILE NO/S: CIV 1213 of 2002

BETWEEN: PETER JOHN FOGARTY
Plaintiff
AND
NATIONWIDE NEWS LTD (ACN 008 438 828)
First Defendant
JOHN FRANCIS McGLUE
Second Defendant

Catchwords:

Defamation - Application for leave to amend defence - Fair comment - Justification

Defamation - Fair Comment - Principles to apply to amendment application - Objections to proposed amendments - Fact not comment - Key factual basis for comment not pleaded - Comments do not relate to plaintiff's imputations

Defamation - Justification - Whether alternative imputation vague and meaningless - Imputation lacks necessary specificity - Whether particulars capable of sustaining imputation - Plea of justification deficient

Legislation:

Nil

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff:     Mr W S Martin QC
First Defendant             :     Mr S M Davies
Second Defendant         :     Mr S M Davies

Solicitors:

Plaintiff:     Tottle Partners
First Defendant             :     Blake Dawson Waldron
Second Defendant         :     Blake Dawson Waldron

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

Anderson v Nationwide News Pty Ltd (2001) 3 VR 619
Anderson v Nationwide News Pty Ltd (No 2) (2001) 3 VR 639
Archer v Channel Seven Perth Pty Ltd [2002] WASC 160
Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474
Bjelke‑Petersen v Burns [1988] 2 Qd R 129
Bob Kay Real Estate v Amalgamated Television (1985) 1 NSWLR 505
Branson v Bower [2002] QB 737
Clarke v Norton [1910] VLR 494
Cock v Hughes [2002] WASC 108
Cock v Hughes [2002] WASC 263
David Syme & Co Ltd v Hore‑Lacy (2000) 1 VR 667
Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Goldsborough v John Fairfax (1934) 34 SR (NSW) 524
Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365
Hunt v Star Newspaper (1908) 2 KB 309
Jones v Skelton (1963) 1 WLR 1362
Kemsley v Foote [1952] AC 345
London Artists Ltd v Littler (1969) 2 QB 375
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209
Moyer v Flint [2002] WASC 48
Nationwide News Pty Ltd v Moodie [2003] WASCA 273
O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166
Pryke v Advertising Newspapers (1984) 37 SASR 175
Rocca v Manhire (1992) 57 SASR 224
Simms v Wran [1984] 1 NSWLR 317
Smiths Newspapers v Becker (1932) 47 CLR 279
Telnikoff v Matusevitch [1992] 2 AC 343
Thompson v Truth & Sportsman (1932) 34 SR (NSW) 21

Case(s) also cited:

Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Crane v Nationwide News Pty Ltd [1999] WASC 113
Gascoine v McGinty (1995) 14 WAR 542
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd…

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: [2005] WASC 2
Decision Date: 14 JANUARY 2005

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Fogarty v Nationwide News Ltd was heard by Justice Edelman. The plaintiff, Mr. Fogarty, sought to amend his statement of claim to include additional imputations he claimed were defamatory. The defendants, Nationwide News Ltd, opposed the amendment, arguing it would prejudice their case and did not meet the criteria for a successful amendment. The court was required to determine whether the plaintiff was entitled to amend his pleadings to include new defamation allegations and whether the proposed amendments were permissible under the relevant rules of court and legal principles.

The court considered several legal issues, including the principles to apply when considering an application to amend pleadings, the objections raised by the defendants to the proposed amendments, and the sufficiency of the plaintiff's defamation claims. Specifically, the court examined whether the plaintiff's proposed amendments were based on facts or comments, whether the key factual basis for the comments had been pleaded, and whether the comments related to the plaintiff's imputations. The court also assessed whether the plea of justification was deficient due to vagueness or lack of specificity in the imputations.

Justice Edelman determined that the plaintiff's application for leave to amend was not well-founded. The court found that the proposed amendments were not based on facts but rather on comments, and the key factual basis for the comments had not been pleaded. Additionally, the court held that the comments did not relate to the plaintiff's imputations, and the imputations themselves were vague and lacked the necessary specificity to sustain a defamation claim. Consequently, the plaintiff's plea of justification was found to be deficient. The court denied the plaintiff's application to amend his statement of claim.

No further orders were made by the court, as the denial of the application to amend the statement of claim was the primary issue before the court. The court's decision effectively precluded the plaintiff from pursuing the additional defamation claims he sought to include in his amended statement of claim.

Orders