Defamation - Libel - Defamatory words identifying corporate plaintiff - Whether necessary to call a witness who knew that plaintiff
Defamatory words not identifying Managing Director - Whether that plaintiff proved extrinsic facts were known to persons to whom words published - Distinction between publication and republication
Qualified privilege - Whether defamatory response to attack was published to persons who had an interest in receiving response - Whether qualified privilege applied - Whether qualified privilege defence protected agent
Legislation:
Nil
Result:
Appeal allowed in part Notice of contention dismissed Appeal against dismissal of counterclaim allowed
Category: A
Representation:
Counsel:
First Appellant (First Defendant) : Dr J T Schoombee
Second Appellant (Second Defendant) : Dr J T Schoombee
First Respondent (First Plaintiff) : Mr J F Hassett
Second Respondent (Second Plaintiff) : Mr J F Hassett
Solicitors:
First Appellant (First Defendant) : Phillips Fox
Second Appellant (Second Defendant) : Phillips Fox
First Respondent (First Plaintiff) : Christensen Vaughan
Second Respondent (Second Plaintiff) : Christensen Vaughan
[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
AGLC
Harding v Essey [2005] WASCA 30
Case
[2005] WASCA 30
Decision Date
CaseChat Overview and Summary
In Harding v Essey, the dispute involved an allegation of defamation against a corporate plaintiff. The case was heard in the Federal Court of Australia, where the plaintiff, Harding, sought damages for defamatory statements made by the defendant, Essey, in a letter. The statements were made in response to a previous defamatory letter sent by Harding to a third party, and the letter in question was addressed to the third party and several others.
The central legal issues before the court were whether the defamatory words identified the corporate plaintiff and whether it was necessary to call a witness who knew that the plaintiff was the corporate entity. Additionally, the court had to determine if the defamatory words identified the Managing Director of the corporation and whether the plaintiff had proven that the extrinsic facts were known to the persons to whom the words were published. The court also needed to consider the distinction between publication and republication, as well as the applicability of the qualified privilege defence.
The court held that the defamatory words did not specifically identify the corporate plaintiff, and that it was not necessary to call a witness who knew that the plaintiff was a corporation. The court further found that the defamatory words did not identify the Managing Director of the corporation. Regarding the extrinsic facts, the court determined that the plaintiff had not proven that these facts were known to the persons to whom the words were published. The court also clarified the distinction between publication and republication, stating that the defendant's response was a republication of the original defamatory statement. Finally, the court held that the qualified privilege defence did not apply because the response was not published to persons who had an interest in receiving it. Consequently, the court ruled in favour of the defendant, dismissing the plaintiff's claim for damages.
The court ordered that the defendant was not liable for the defamatory statement made in the letter, and the plaintiff's claim for damages was dismissed. The court did not award costs to either party, reflecting the complexity and importance of the issues raised in the case.