HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 44

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 44
Case No:	CIV:1177/2003	Heard:	10 MARCH 2004
Coram:	MASTER NEWNES	Delivered:	25/03/04
No of pages:	14	Judgment Part:	1 of 1
Result:	Application allowed in part
Category:	B
PDF Version

Parties:	BRADLEY WILLIAM HAZELDEAN AUSTAL SHIPS PTY LTD (ACN 079 160 679)
Catchwords:	Defamation Slander Application to interrogate defendant as to words spoken Relevant principles Turns on own facts
Legislation:	Supreme Court Rules, O 26A
Case References:	Atkinson v Fosbroke [1866] LR 1 QB 628 Barham v Huntingfield [1913] 2 KB 193 Collins v Jones [1955] 1 QB 564 Dalgleish v Lowther [1899] 2 QB 590 Saunderson v Von Radeck (1905) 119 LPJ 33, HL Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250 Collins v Jones [1955] QB 564 Cooper v Lawson (1838) 8 A & E 746 Dalecoast Pty Ltd v Monisse [1999] WASCA 103 Garnaut v Bennett (No 1) (1909 29 NZLR 378 Gumina v Williams (No 2) (1990) 3 WAR 351 Lewis v Clement (1820) 3 B & Ald 702 Mullery & Marney v Manifold [1959] 103 CLR 341 Phelps v Kemsley (1943) 168 LT 20 Polly Peck Holdings plc v Trelford [1986] 2 All ER 84 Russell v Stubbs [1913] 2 KB 200 Sutherland v Stopes [1925] AC 47 Toronto Star Ltd v Drew [1948] 4 DLR 465 Verdell Pty Ltd v F&G Nominees Pty Ltd [2000] WASC 143 West v West (1911) 27 TLR 476

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 44 CORAM : MASTER NEWNES HEARD : 10 MARCH 2004 DELIVERED : 25 MARCH 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 - Slander - Application to interrogate defendant as to words spoken - Relevant principles - Turns on own facts

Legislation:

Supreme Court Rules, O 26A

Result:

Application allowed in part

(Page 2)

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):

Atkinson v Fosbroke [1866] LR 1 QB 628
Barham v Huntingfield [1913] 2 KB 193
Collins v Jones [1955] 1 QB 564
Dalgleish v Lowther [1899] 2 QB 590
Saunderson v Von Radeck (1905) 119 LPJ 33, HL

Case(s) also cited:

Associated Dominions Assurance Society Pty Ltd v John Fairfax & Sons Pty Ltd (1952) 72 WN (NSW) 250
Collins v Jones [1955] QB 564
Cooper v Lawson (1838) 8 A & E 746
Dalecoast Pty Ltd v Monisse [1999] WASCA 103
Garnaut v Bennett (No 1) (1909 29 NZLR 378
Gumina v Williams (No 2) (1990) 3 WAR 351
Lewis v Clement (1820) 3 B & Ald 702
Mullery & Marney v Manifold [1959] 103 CLR…

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 44
Decision Date

CaseChat Overview and Summary

The applicant, Bradley William Hazeldean, commenced defamation proceedings against the respondent, Austal Ships Pty Ltd, in the Supreme Court of Western Australia. The applicant claimed damages for defamation in relation to a work reference allegedly given by the respondent to a recruitment agency. The respondent, a ship builder, employed the applicant as an apprentice and then as a tradesman fabricator/welder. The applicant's employment was terminated on the ground of redundancy. After the applicant applied for a job with a competitor, he was informed by the recruitment agency that his application was not being pursued due to comments made by the respondent. The applicant sought to obtain details of the reference provided by the respondent, but the respondent declined to provide any information. The applicant subsequently obtained an order for discovery of the reference. The respondent produced a form that appeared to be a reference check, which indicated that the applicant required improvement in safe work practices, teamwork, and communication, and that he was capable of doing good work but needed to work on those areas. The applicant alleged that the respondent, through an employee, spoke defamatory words to a representative of the recruitment agency, and sought to interrogate the respondent regarding the words spoken. The respondent opposed the application on the ground that the proposed interrogatories were improper because the applicant was fishing to ascertain whether defamatory words had been spoken rather than seeking to ascertain precisely what defamatory words had been spoken. The court considered the relevant principles regarding a plaintiff's ability to interrogate a defendant as to whether the defendant spoke the words pleaded in the statement of claim, or words to that effect. The court also considered whether the plaintiff was entitled to interrogate more generally as to what words were spoken. The court held that the applicant was entitled to interrogate the respondent as to whether the respondent spoke the words pleaded in the statement of claim, or words to that effect. The court further held that the applicant was entitled to interrogate the respondent as to what words were spoken, as the applicant had established by uncontradicted affidavit evidence that the respondent had made a slanderous imputation of a definite character against him. The court allowed the applicant's application to interrogate the respondent in part.

Orders