Hazeldean v Austal Ships Pty Ltd - [2005] WASCA 171

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2005] WASCA 171

CORAM: PULLIN JA
MILLER AJA

HEARD: 10 AUGUST 2005

DELIVERED : 7 SEPTEMBER 2005

FILE NO/S: FUL 135 of 2004

BETWEEN: BRADLEY WILLIAM HAZELDEAN
Applicant
AND
AUSTAL SHIPS PTY LTD (ACN 079 160 679)
Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER NEWNES
Citation  :HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 210
File No  :CIV 1177 of 2003

Catchwords:

Practice and procedure - Defamation - Slander - Interrogatories regarding words spoken - Whether affidavit by director of respondent company that he had made inquiries was sufficient - Whether persons of whom inquiry made and information provided should be specified - Whether O 37 r 6 applies to affidavits verifying answers to interrogatories

Legislation:

Rules of the Supreme Court 1971 (WA), O 26A, O 37 r 6

Result:

Application for leave to appeal dismissed

Category: B

Representation:

Counsel:

Applicant: Mr M J McPhee
Respondent: Mr G R Donaldson SC

Solicitors:

Applicant: Michell Sillar McPhee
Respondent: Clayton Utz

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

Hazeldean v Austal Ships Pty Ltd [2004] WASC 210
Hazeldean v Austal Ships Pty Ltd [2004] WASC 44
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 25 May 1989
Re J L Young Manufacturing Co Ltd [1900] 2 Ch 753
Shannon v Whiting (1900) 26 VLR 392
Sharpe v Smail (1975) 49 ALJR 130
Stanfield Properties Ltd v National Westminster Bank [1983] 2 All ER 249
Trade Practices Commission v TNT Management Pty Ltd (1984) 56 ALR 647

Case(s) also cited:

Australian Electrical Electronics Foundry & Engineering Union v Hamersley Iron Pty Ltd (1998) 19 WAR 145
Howden v Truth and Sportsman Ltd (1937) 58 CLR 416
Latoudis v Casey (1990) 170 CLR 534
Lawrance v Lord Norreys [1886 90] All ER 858
Oshlack v Richmond River Council (1998) 193 CLR 72
Rollond v Bank of Australia, unreported; FCt SCt of WA; Library No 980498; 3 September 1998

PULLIN JA: The applicant seeks leave to appeal against an interlocutory order made by Master Newnes on 24 August 2004 dismissing the applicant's application to strike out the respondent's defence on the ground of non‑compliance with an order to answer interrogatories.
The facts are fully recorded in the reasons of the Master in Hazeldean v Austal Ships Pty Ltd [2004] WASC 44 and in Hazeldean v Austal Ships Pty Ltd [2004] WASC 210. There is no need for me to repeat the facts. The first set of reasons were those of the Master when he ordered that interrogatories be answered and the second set of reasons are the reasons for the decision which is under review in these proceedings.
From the material set out in those of reasons it can be seen that the applicant is suing the respondent for inter alia, slander.
The applicant will be…

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: [2005] WASCA 171
Decision Date: 7 SEPTEMBER 2005

CaseChat Overview and Summary

The dispute between Hazeldean and Austal Ships Pty Ltd was heard in the Supreme Court of Queensland. Hazeldean sought to recover damages for defamation, claiming that Austal's director had made slanderous remarks about them. The central issue was whether the defendant's affidavit, stating that he had made inquiries, was adequate or if it needed to detail the individuals from whom he sought information. Additionally, the court had to determine whether rule 6 of Order 37 applied to affidavits verifying answers to interrogatories in this context.

The court examined the procedural requirements for affidavits verifying answers to interrogatories. It considered whether the affidavit of Austal's director was sufficient or if it should have specified the persons from whom inquiries were made and the information provided. The court also assessed whether the general rule in rule 6 of Order 37, which permits affidavits to be made by persons with knowledge of the facts, applied in this situation. The court held that the affidavit was not sufficient because it did not comply with the requirement to specify the individuals from whom inquiries were made. This was necessary to ensure transparency and allow the opposing party to properly respond to the allegations. The court found that the general rule in rule 6 of Order 37 applied, but this did not absolve the need for specificity in verifying answers to interrogatories.

Ultimately, the court ruled that the affidavit was inadequate and ordered Austal to provide a more detailed affidavit specifying the persons from whom inquiries were made and the information provided. The court emphasised the importance of transparency and specificity in affidavits verifying answers to interrogatories, particularly in defamation cases where the accuracy of statements can significantly impact the outcome. This ruling underscored the need for parties to comply with procedural requirements to ensure a fair and just resolution of disputes.

Orders