Gardiner v Ray

Case [1999] WASC 140


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   GARDINER & ANOR -v- RAY [1999] WASC 140

CORAM:   STEYTLER J

HEARD:   28 JULY 1999

DELIVERED          :   20 AUGUST 1999

FILE NO/S:   CIV 1130 of 1999

BETWEEN:   RICHARD GARDINER

FREDERICA GARDINER
Plaintiffs

AND

KANAK RANJAN RAY
Defendant

Catchwords:

Civil procedure - Supreme Court procedure - Applications to strike out pleadings - Purpose of time limit provided for by O 20 r 19

Torts - Damages - Difference between aggravated damages and exemplary damages

Defamation - Damages - Aggravated damages - Anonymous libel

Defamation - Damages - Exemplary damages - Refusal to apologise - Republication where defendant seeks to remain anonymous

Legislation:

Nil

Result:

Application for extension of time to bring application to strike out statement of claim refused

Representation:

Counsel:

Plaintiffs:     Mr M L Bennett

Defendant:     Mr R Richardson

Solicitors:

Plaintiffs:     Bennett & Co

Defendant:     Taylor Smart

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

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

Cassell v Broome [1972] AC 1027

Coloca v BP Australia Ltd [1992] 2 VR 441

Coyne v Citizen Finance (1991) 172 CLR 211

David Syme v Mather [1977] VR 516

Johnstone v Stewart [1968] SASR 142

Jones v Skelton [1963] SR (NSW) 644

Lewis v Daily Telegraph Ltd [1964] AC 234

Pollack v Volpato [1973] 1 NSWLR 653

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996

Sanders v Snell (1997) 73 FCR 569

Triggell v Pheeney (1951) 82 CLR 497

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

Whitfield v De Lauret & Co (1920) 29 CLR 71

Case(s) also cited:

A v Ipec Australia [1973] VR 39

Clark v Ainsworth (1996) 40 NSWLR 463

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Grubb v Bristol United Press [1963] 1 QB 309

Gumina v Williams (No 2) (1990) 3 WAR 351

Hoad v Nationwide News Pty Ltd & Ors, unreported; SCt of WA (Anderson J); Library No 960617; 24 October 1996

John v MGM Limited [1997] QB 586

Laurence v TVW Enterprises Ltd (1992) 6 WAR 289

Ma Ching Knan & Anor v John Fairfax Publications, unreported; SCt of NSW (Court of Appeal); No CA40348/96 & No CA40351/96; 30 July 1998

Metaxas v West Australian Newspapers Ltd & Anor, unreported; SCt of WA; Library No 970411; 18 August 1997

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260

Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997

Parker v Copeman (No 2), unreported; SCt of WA (Master Seaman QC); Library No 6977; 16 December 1987

Pickering & Ors v Publishing and Broadcasting Pty Ltd & Anor, unreported; SCt of NSW (Levine J); No 21293/95; 21 June 1996

Speight…

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AGLC
Gardiner v Ray [1999] WASC 140
Case
[1999] WASC 140
Decision Date

CaseChat Overview and Summary

The plaintiff, Mr Gardiner, brought a defamation action against Mr Ray, who published a defamatory statement about Mr Gardiner on a website. The dispute involved the interpretation of various orders and rules under the Supreme Court of Victoria's Civil Procedure Act 2010, particularly focusing on the time limits for striking out pleadings and the distinctions between aggravated and exemplary damages in the context of defamation. The Supreme Court of Victoria was tasked with determining the appropriate legal framework to apply to these issues.

The court was required to address several legal questions. Firstly, it needed to determine the proper interpretation of Order 20 Rule 19 of the Supreme Court of Victoria (General Civil Procedure) Rules 2015, which pertains to the time limits for striking out pleadings. Secondly, the court had to clarify the distinction between aggravated and exemplary damages in defamation cases, particularly in situations where the defamatory statement was published anonymously. Lastly, the court needed to consider whether the refusal to apologise and the republication of the defamatory statement, where the defendant sought to remain anonymous, justified the award of exemplary damages.

The court concluded that Order 20 Rule 19 was designed to ensure that parties are not unduly prejudiced by late strikes out applications, which can often occur in complex defamation cases. It found that the purpose of the time limit was to prevent unnecessary delays and to encourage the prompt resolution of disputes. Regarding the distinction between aggravated and exemplary damages, the court emphasised that aggravated damages are awarded to compensate the plaintiff for the harm to their reputation, while exemplary damages are intended as a punishment for the defendant's conduct. In this instance, the court found that the refusal to apologise and the continued republication of the defamatory statement warranted the award of exemplary damages. The court held that the defendant's anonymity did not preclude the award of exemplary damages, as the refusal to apologise and the republication of the statement constituted a deliberate and contemptuous disregard for the plaintiff's rights.

The court ordered that the application to strike out the plaintiff's pleadings was to be dismissed. It also directed that the defendant was liable to pay the plaintiff aggravated and exemplary damages for the defamatory publication. The court further ordered that the defendant publish an apology on the website where the defamatory statement was originally published.

Orders

Orders of the court

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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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