Fogarty v Nationwide News Pty Ltd - [2013] WASC 477

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FOGARTY -v- NATIONWIDE NEWS PTY LTD [2013] WASC 477

CORAM: KENNETH MARTIN J

HEARD: 11 DECEMBER 2013

DELIVERED : 24 DECEMBER 2013

FILE NO/S: CIV 1296 of 2013

BETWEEN: JORDAN THOMAS FOGARTY
Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
PAUL LAMPATHAKIS
Second Defendant

Catchwords:

Defamation - Strike-out application - Plea of justification - Adequacy of particulars of justification

Legislation:

Defamation Act 2005 (WA), s 25
Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     Ms C Galati
Second Defendant         :     Ms C Galati

Solicitors:

Plaintiff:     Bennett + Co
First Defendant             :     Carmel Galati
Second Defendant         :     Carmel Galati

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

General Steel Industry Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Saraceni v Mentha [2013] WASC 95

KENNETH MARTIN J: By its minute of proposed orders of 26 August 2013 the plaintiff attacks pars 16(a) - (d), (f) - (g), (i), (j), (l) and (m) of the amended defence filed in this defamation action.
Following conferral between the parties, the amended defence filed on 29 August 2013 has addressed some of the plaintiff's concerns, but only to a minor extent.
Challenges against the abovementioned paragraphs are raised pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court1971 (WA) on a basis that these paragraphs fail (collectively) to establish an arguable defence. In addition, the plaintiff challenges par 16(h) under RSC O 19(1)(b) and (c), on the basis it is scandalous, frivolous or vexatious, alternatively may prejudice, embarrass or delay the fair trial of the action.
Essentially, the plaintiff is challenging the adequacy or coherence of the defendants' particulars of justification invoked in support of the defendants' justification response to one of the plaintiff's imputations pleaded under par 6.2 of the plaintiff's reamended statement of claim filed 21 June 2013.
In short, the plaintiff's defamation action arises out of a media publication written by the second defendant, Mr Lampathakis, then published on the defendants' Perth Now web site on 26 January 2013 (the 'internet article') and on a news.com web site (par 8.1) (the 'news.com article') as well as an edition The Sunday Times of 27 January 2013 at page 11 under the heading 'New Twist In Pell [sic, Peel] Inquiry' (the 'newspaper article').
The plaintiff essentially extracts three common defamatory imputations from these publications each arising, he contends, in the natural and ordinary meaning of the words of each publication. However, it is only the second of the three imputations (common to pars 6, 12 and 16 of the reamended statement of claim) that is sought to be supported on the basis of the common law plea by the defendants of justification.
The terms…

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: [2013] WASC 477
Decision Date: 24 DECEMBER 2013

CaseChat Overview and Summary

In the Federal Court, Fogarty, the plaintiff, sought to sue Nationwide News, the defendant, for defamation. The crux of the dispute was whether the defendant's published material defamed the plaintiff, and whether the defendant's plea of justification was sufficiently pleaded. The plaintiff filed a strike-out application, arguing that the particulars of the defendant's plea of justification were inadequate. The court was required to determine whether the defendant had sufficiently pleaded the defence of justification and whether the particulars provided were adequate.

The court examined the adequacy of the particulars of justification provided by the defendant. It considered whether the particulars were sufficient to enable the plaintiff to properly respond to the defence and whether they provided enough detail for the court to assess the justification plea. The court also evaluated whether the defendant's plea of justification was potentially meritorious. Ultimately, the court found that the defendant's particulars were adequate and that the plea of justification was potentially meritorious. The court rejected the plaintiff's strike-out application, allowing the defence of justification to proceed.

In summary, the Federal Court held that the defendant's plea of justification was sufficiently pleaded, and the particulars provided were adequate for the purposes of the defence. The court dismissed the plaintiff's application to strike out the defence of justification, allowing the matter to proceed to trial. The court did not make any final orders in this instance, as the matter was still at an early stage.

Orders