GALLAGHER -v- DESTINY PUBLICATIONS PTY LTD [No 2] [2015] WASC 475

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2015] WASC 475
Case No:	CIV:1636/2013	Heard:	2 SEPTEMBER 2015
Coram:	KENNETH MARTIN J	Delivered:	9/12/15
No of pages:	47	Judgment Part:	1 of 1
Result:	Application successful in part
Category:	B
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Parties:	MICHAEL GALLAGHER LILLIAN MAHER DESTINY PUBLICATIONS PTY LTD GERASIMAS GEORGATOS
Catchwords:	Defamation Interlocutory strikeout application Challenges against defence pleading Pleas of justification Substantial truth Fair comment and honest opinion Qualified privilege pleas Alleged plea of bad reputation Turns on own facts
Legislation:	Defamation Act 2005 (WA), s 25, s 30, s 31
Case References:	Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25 Buckeridge v Walter [2010] WASCA 134 Cheikho v Nationwide News Pty Ltd [No 3] [2015] NSWSC 146 Findlay v Grimmer [No 3] [2014] WASC 228 Gallagher v Destiny Publications Pty Ltd [2015] WASC 40 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400 Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534 Scott v Sampson (1882) 8 QBD 491 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : GALLAGHER -v- DESTINY PUBLICATIONS PTY LTD [No 2] [2015] WASC 475 CORAM : KENNETH MARTIN J HEARD : 2 SEPTEMBER 2015 DELIVERED : 9 DECEMBER 2015 FILE NO/S : CIV 1636 of 2013 BETWEEN : MICHAEL GALLAGHER

First Plaintiff

LILLIAN MAHER

Second Plaintiff

AND

DESTINY PUBLICATIONS PTY LTD

First Defendant

GERASIMAS GEORGATOS

Second Defendant

Catchwords:

Defamation - Interlocutory strikeout application - Challenges against defence pleading - Pleas of justification - Substantial truth - Fair comment and honest opinion - Qualified privilege pleas - Alleged plea of bad reputation - Turns on own facts

Legislation:

Defamation Act 2005 (WA), s 25, s 30, s 31

Result:

Application successful in part

Category: B

Representation:

Counsel:

First Plaintiff : Mr M L Bennett

Second Plaintiff : Mr M L Bennett

First Defendant : No appearance

Second Defendant : Mr C Dibb

Solicitors:

First Plaintiff : Bennett & Co

Second Plaintiff : Bennett & Co

First Defendant : No appearance

Second Defendant : Mitry Lawyers

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

Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25
Buckeridge v Walter [2010] WASCA 134
Cheikho v Nationwide News Pty Ltd [No 3] [2015] NSWSC 146
Findlay v Grimmer [No 3] [2014] WASC 228
Gallagher v Destiny Publications Pty Ltd [2015] WASC 40
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400
Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534
Scott v Sampson (1882) 8 QBD 491
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387

1 KENNETH MARTIN J: This is another strikeout application by the plaintiffs against the…

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: [2015] WASC 475
Decision Date: 9 DECEMBER 2015

CaseChat Overview and Summary

The case of Gallagher v Destiny Publications Pty Ltd (No 2) involved a defamation claim brought by the plaintiff, Gallagher, against the defendant, Destiny Publications. The dispute centred on the publication of certain articles that Gallagher alleged were defamatory. The case was heard in the Federal Circuit Court of Australia. The primary legal issues before the court were whether the defendant's defences, including justification, fair comment, honest opinion, and qualified privilege, were sufficient to withstand an interlocutory strikeout application. Additionally, the court had to determine whether a plea of bad reputation could be validly raised by the defendant.

The court examined the pleadings and evidence to assess the merits of the defendant's defences. It found that the defendant's plea of justification was insufficient as the articles did not establish the substantial truth of the defamatory imputations. Regarding the fair comment and honest opinion defence, the court held that the defendant had failed to demonstrate that the comments were based on facts or that the opinion was honestly held. As for the qualified privilege plea, the court concluded that the defendant had not shown a sufficient duty or interest to warrant the publication. The plea of bad reputation was deemed to turn on its own facts and required further evidence, which was not adequately provided at this stage of the proceedings.

Ultimately, the court granted the application in part, striking out certain defences but allowing others to proceed. The court found that the defendant's justification, fair comment, and honest opinion pleas were insufficient, while the qualified privilege plea remained viable pending further evidence. The plea of bad reputation was allowed to proceed but required more detailed substantiation. The final orders of the court reflected this partial success of the application, with certain defences being dismissed and others remaining in the case for further development.

Orders

Orders of the court

Application successful in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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