HEUGH -v- ASKIN [2014] WASC 30

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 30
Published:	05/02/2014
Case No:	CIV:2936/2012	Heard:	18 DECEMBER 2013
Coram:	KENNETH MARTIN J	Delivered:	18/12/13
No of pages:	11	Judgment Part:	1 of 1
Result:	Application granted in part
Category:	B
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Parties:	JOHN PHILLIP HEUGH HENRY ASKIN RICHARD FAULL WILLIAM DUNMORE CENTRAL PETROLEUM LTD
Catchwords:	Civil law and procedure Defamation Pleadings Application to strike out imputations and particulars of special damages Threshold of arguability Turns on own facts
Legislation:	Nil
Case References:	Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Oracle International Pty Ltd v West Australian Newspapers Ltd (Unreported, WASC, Library No 970696, 11 December 1997) Smith v Littlemore (1996) 15 WAR 289 Taylor v Jecks (1993) 10 WAR 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : HEUGH -v- ASKIN [2014] WASC 30 CORAM : KENNETH MARTIN J HEARD : 18 DECEMBER 2013 DELIVERED : 18 DECEMBER 2013 PUBLISHED : 5 FEBRUARY 2014 FILE NO/S : CIV 2936 of 2012 BETWEEN : JOHN PHILLIP HEUGH

Plaintiff

AND

HENRY ASKIN

First Defendant

RICHARD FAULL

Second Defendant

WILLIAM DUNMORE

Third Defendant

CENTRAL PETROLEUM LTD

Fourth Defendant

Catchwords:

Civil law and procedure - Defamation - Pleadings - Application to strike out imputations and particulars of special damages - Threshold of arguability - Turns on own facts

Legislation:

Nil

Result:

Application granted in part

Category: B

Representation:

Counsel:

Plaintiff : Mr M Bennett

First Defendant : Mr J Maclaurin

Second Defendant : Mr J Maclaurin

Third Defendant : Mr J Maclaurin

Fourth Defendant : Mr J Maclaurin

Solicitors:

Plaintiff : Bennett + Co

First Defendant : Jarman McKenna

Second Defendant : Jarman McKenna

Third Defendant : Jarman McKenna

Fourth Defendant : Jarman McKenna

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Oracle International Pty Ltd v West Australian Newspapers Ltd (Unreported, WASC, Library No 970696, 11 December 1997)
Smith v Littlemore (1996) 15 WAR 289
Taylor v Jecks (1993) 10 WAR 309

KENNETH MARTIN J

: (This judgment was delivered extemporaneously on 18 December 2013 and has been edited from the transcript.)

1 The re-amended statement of claim (RESOC) filed on behalf of the plaintiff on 29 November 2013 has been the subject of attack. There has obviously been conferral between the parties.…

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.

Continue reading Heugh v Askin

Details

AGLC: Heugh v Askin [2014] WASC 30
Case: [2014] WASC 30
Decision Date: 5 FEBRUARY 2014

CaseChat Overview and Summary

The case before the court involved a defamation claim brought by Heugh against Askin. The plaintiff alleged that defamatory statements made by the defendant had caused harm to their reputation. The matter came before the court on an application by the defendant to strike out certain imputations and particulars of special damages, arguing they were not arguable. The case turned on the threshold of what constitutes an arguable case in defamation matters.

The court considered the relevant legal principles governing the threshold of arguability in defamation cases. It noted that an application to strike out is not an adjudication on the merits but rather a preliminary determination of whether the case has sufficient arguability to proceed. The court must consider whether, on the plaintiff's own facts, there is a reasonable possibility that the defamation allegations could be proven at trial. The court held that certain imputations and particulars of special damages were not arguable because they did not meet this threshold. However, the court found that other allegations were arguable and should proceed to trial.

The court granted the application in part, striking out the non-arguable imputations and particulars of special damages. The remaining allegations were allowed to proceed to trial. The court emphasised that its decision was based solely on the facts presented by the plaintiff and did not involve any assessment of the evidence or merits of the case. The court also noted that the plaintiff would have the opportunity to amend their pleadings if they wished to include additional particulars. The final orders reflected the court's decision, with certain allegations struck out and others allowed to proceed.

Orders

Orders of the court

Application granted 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

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