JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRAY -v- JOHN FAIRFAX PUBLICATIONS PTY LTD [2007] WASC 274
CORAM: NEWNES J
HEARD: 21 SEPTEMBER 2007
DELIVERED : 27 NOVEMBER 2007
FILE NO/S: CIV 2275 of 2006
BETWEEN: BRUCE NATHANIEL GRAY
Plaintiff
AND
JOHN FAIRFAX PUBLICATIONS PTY LTD (ACN 003 357 720)
First DefendantKATRINA JANE NICHOLAS
Second Defendant
Catchwords:
Defamation - Application to strike out imputations pleaded by plaintiff - Whether imputations capable of being conveyed or are embarrassing - Relevant principles - Whether statement that civil claim made against the plaintiff capable of conveying an imputation that the plaintiff had so conducted himself so as to warrant that claim being made - Turns on own facts
Legislation:
Nil
Result:
Application successful in part
Category: B
Representation:
Counsel:
Plaintiff: Mr S M Davies
First Defendant : Mr K J Martin QC
Second Defendant : Mr K J Martin QC
Solicitors:
Plaintiff: Lavan Legal
First Defendant : Edwards Wallace
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Buckeridge v Walter [2006] WASCA 22
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Corse v Robinson (Unreported, WASCA, Library No 970669, 8 December 1997)
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Gumina v Williams (No 1) (1990) 3 WAR 342
John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Purcell v Cruising Yacht Club of Australia Pty Ltd [2003] NSWSC 245
Rakhimov v Australian Broadcasting Corporation [2001] NSWSC 10
Random House Australia Pty Ltd v Abbott (1999) 167 ALR 224
Ronci v Nationwide News Pty Ltd [2001] WASC 239
Taylor v Jecks (1993) 10 WAR 309
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
NEWNES J: This is an application by the defendants to strike out three of the defamatory imputations pleaded by the plaintiff in the statement of claim, on the ground that the imputations are not capable of being conveyed by the words complained of or are embarrassing.
The statement of claim
In the statement of claim, the plaintiff pleads that he was defamed in an article, headed 'Gray Eminence Loses His Grip', published in The Weekend Australian Financial Review newspaper of 4 ‑ 5 November 2006. The article is lengthy and the text of the article is attached as an annexure to these reasons.
The plaintiff filed an amended statement of claim on 6 June 2007 and the defendants brought an application to strike out three of the imputations pleaded by the plaintiff. The plaintiff has since filed a minute of proposed re‑amended statement of claim (the Minute) and it was the Minute which was the subject of argument on this application. The Minute, by par 5.2A, adds a further imputation and makes some amendments to the existing imputations.
In the Minute, the…
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- AGLC
- Gray v John Fairfax Publications Pty Ltd [2007] WASC 274
- Case
- [2007] WASC 274
- Decision Date
CaseChat Overview and Summary
The primary legal issue the court had to resolve was whether the imputations pleaded by Dr. Gray were capable of being conveyed by the words used in the article. Specifically, the court needed to determine if the article's statement that a civil claim had been made against Dr. Gray by UWA could reasonably be interpreted as implying that he had conducted himself in a way that warranted such a claim. The court had to balance the requirement for Dr. Gray to specify the defamatory act or condition attributed to him against the necessity for a fair and clear pleading of the defamation claim.
The court's reasoning hinged on the principle that while a plaintiff must specify the act or condition attributed to them, the application of this principle can vary depending on the specific facts and circumstances of the case. The court examined whether there was a likelihood of confusion in understanding the imputations at the pleading stage or during the trial. It was concluded that the words used in the article did not convey that Dr. Gray had conducted himself in a way that warranted the claim by UWA. The court held that the article did not sufficiently imply that Dr. Gray had acted improperly, as it described the proceedings as prudent given the potential outcome of the litigation. Therefore, the application to strike out certain imputations was successful in part.
The final orders of the court reflect the partial success of the application. The court struck out certain imputations pleaded by Dr. Gray, finding them not capable of being conveyed by the words in the article. The remaining imputations were allowed to proceed, ensuring that the defamation claim could be fairly tried on its merits.
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
But as Gleeson CJ pointed out in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137, the requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him is one which, in its practical application, raises questions of degree. Whilst the principles relevant to the plaintiff's obligation to 'specify' the act or condition which he claims was attributed to him remain constant, their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. The issue to be decided is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends. It is self‑evident that the proper pleading of imputations in a defamation action is a matter of importance in ensuring a fair trial of the action. As Brennan CJ and McHugh J observed in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, 531 ‑ 532, where the plaintiff pleads a false innuendo the plaintiff gives a shape and focus to the cause of action. But that is not a licence for defendants to pursue the refinement of the pleaded imputations with excessive zeal. In Buckeridge v Walter [2006] WASCA 22, the Court of Appeal ([4] (Steytler P), [23] (Pullin JA)) endorsed the comments of Kirby J in Favell v Queensland Newspapers Pty Ltd, to the effect that excessive refinement of pleading issues is to be discouraged and courts should discourage, or minimise, the impediment to a fair trial presented by the process of 'trial by interlocutory ordeal', which is especially prevalent in defamation proceedings. In my view, par 5.2 is not capable of being conveyed by the words complained of. I accept the defendants' submission that there is nothing in the words complained of which is capable of being understood by a reasonable reader to mean that the plaintiff had conducted himself in a way that warranted the alleged claim by UWA. There are statements in the article that a claim has been made by UWA that the intellectual property in question belonged to it, rather than to the plaintiff, and that that claim is the subject of contested litigation, but that is not sufficient to convey to a reasonable reader that the plaintiff had conducted himself in a way that warranted the allegation by UWA. And the proceedings brought by the company against the plaintiff are clearly described as proceedings taken as a matter of prudence in case the claim by UWA against the company should succeed. There is, in my view, no reference in the article to conduct of the plaintiff that could cause a reasonable reader to understand the article to mean that the plaintiff had so conducted himself as to warrant the allegation by UWA. In the course of argument it was suggested by counsel for the plaintiff that the fact that proceedings had been commenced by UWA would itself arguably lead a reasonable reader to understand the article in that way, on the basis that given the nature and standing of UWA it would not bring such proceedings without having some proper foundation. As I understood the submission, it drew on an analogy with cases where a statement that a person was suspected by the police of an offence had been found to be capable of conveying an imputation that the person had so conducted himself or herself as to warrant that suspicion.