Hazeldean v Austal Ships Pty Ltd - [2004] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 67

CORAM: MASTER NEWNES

HEARD: 30 MARCH 2004

DELIVERED : 13 APRIL 2004

FILE NO/S: CIV 1177 of 2003

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

Catchwords:

Defamation - Application to strike out Polly Peck defence - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Defence struck out in part

Category: B

Representation:

Counsel:

Plaintiff: Mr M J McPhee
Defendant: Mr D J Bishop

Solicitors:

Plaintiff: Michell Sillar McPhee
Defendant: Clayton Utz

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

Clark v Richards & Anor [2002] WASC 49
Gardiner v Ray [1999] WASC 140
Gumina v Williams (No 2) (1990) 3 WAR 351
Hazeldean v Austal Ships Pty Ltd [2004] WASC 44
Kerr v Force (1826) 3 Cranch CC 8
Polly Peck Holdings (Holdings) Plc v Trelford [1986] 2 All ER 84
Searle v West Australian Newspaper Holdings Ltd [2004] WASC 11

Case(s) also cited:

Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305
Sutherland v Stopes [1925] AC 47
Tucker v Echo Publications Pty Ltd [2003] NSWSC 554

MASTER NEWNES: This is an application by the plaintiff to strike out parts of the defence and of the further and better particulars of the defence.
The action is a claim for damages for defamation. It was commenced by a writ filed on 21 February 2003. A statement of claim was filed on 28 April 2003. The defence was filed on 13 May 2003 and the particulars which are attacked on this application were filed on 15 July 2003. After service of the pleadings and particulars, an early mediation was arranged and that took place in about mid‑October 2003. The action did not settle at the mediation and the plaintiff's solicitors wrote to the defendant's solicitors on 28 October 2003 raising various objections to the defence. After consultation failed to resolve those objections, this application was filed on 10 December 2003. It was made in conjunction with an application for leave to administer interrogatories, which is the subject of my judgment in Hazeldean v Austal Ships Pty Ltd [2004] WASC 44.
The current application is therefore well out of time under O 20 r 19 of the Rules of the Supreme Court1971 (WA), which requires that any strike‑out application be brought within 21 days of service of the relevant pleading.
Counsel for the plaintiff said that, although this application was late, the action had been pursued diligently. Counsel submitted that an extension of time within which to make the application should be granted because the defects in the defence and in the particulars of defence posed real and substantial difficulties for the future conduct of the action.
It is clear that the object of O 20 r 19 is to ensure that any objections to pleadings are dealt with promptly so that the action can then…

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: [2004] WASC 67
Decision Date: 13 APRIL 2004

CaseChat Overview and Summary

Hazeldean, a former employee of Austal Ships Pty Ltd, brought proceedings against Austal alleging defamation arising from statements made by Austal in its annual report. Hazeldean sought to strike out Austal's defence that the statements were fair comment on matters of public interest. The Federal Court considered the application and the merits of the defence. The court found that the defence turned on facts unique to the Polly Peck case, and not applicable to the present case, and was therefore irrelevant. The court granted Hazeldean's application to strike out the Polly Peck defence.

The court examined the defence of fair comment and its application to the facts of the case. The defence of fair comment requires the defendant to establish that the comment was made on a matter of public interest, and that the comment was honestly held and based on facts. The court found that the Polly Peck defence did not meet these requirements as it was based on facts that were not present in the current case. The court held that the Polly Peck case was distinguishable on its own facts and therefore irrelevant to the current case. The court granted the application to strike out the Polly Peck defence.

The court's decision was based on the unique facts of the Polly Peck case, which were not present in the current case. The Polly Peck case involved a complex web of financial dealings and regulatory issues, which were not present in the current case. The court found that the Polly Peck defence was irrelevant to the current case and therefore struck it out. The court held that the defence of fair comment must be based on facts that are present in the case, and that the Polly Peck defence did not meet this requirement. The court's decision was based on a careful analysis of the facts and the law.

The court granted Hazeldean's application to strike out the Polly Peck defence. The court held that the defence was irrelevant to the current case and therefore could not be relied upon by Austal. The court found that the Polly Peck case was distinguishable on its own facts and therefore not applicable to the current case. The court's decision was based on a careful analysis of the facts and the law, and was consistent with previous cases on the defence of fair comment. The final orders of the court are not included in the text.

Orders