JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JWH GROUP PTY LTD -v- BUCKERIDGE [No 3] [2009] WASC 271
CORAM: LE MIERE J
HEARD: 15 MAY 2009
DELIVERED : 17 SEPTEMBER 2009
FILE NO/S: CIV 2566 of 2003
BETWEEN: JWH GROUP PTY LTD (ACN 098 664 709)
First Plaintiff
JULIAN ALAN WALTER
Second PlaintiffAND
LEONARD WALTER BUCKERIDGE
First DefendantBGC (AUSTRALIA) PTY LTD (ACN 005 736 005)
Second Defendant
Catchwords:
Practice and procedure - Defamation - Application to strike out paragraphs of amended defence - Whether meanings pleaded by the defendant are capable of arising from the publications - Whether meanings pleaded by the defendant fail to state the precise act or condition asserted of, or attributed to, the plaintiff - Whether the meanings pleaded by the defendant are substantially different from the plaintiff's imputation - Turns on own facts
Legislation:
Nil
Result:
Application granted
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : Mr J D MacLaurin
First Defendant : Mr T K Tobin QC & Mr S M Davies
Second Defendant : No appearance
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : Clayton Utz
First Defendant : Mallesons Stephen Jaques
Second Defendant : No appearance
Case(s) referred to in judgment(s):
Advertiser‑News Weekend Publishing Co Ltd v Manock [2005] SASC 82; (2005) 91 SASR 206
Anderson v Nationwide News [2001] VSC 335; (2001) 3 VR 619
Anderson v Nationwide News Pty Ltd [No 2] [2002] VSC 18; (2002) 3 VR 639
Buckeridge v Walter [2007] WASCA 19
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
David Syme & Co Ltd v Hore‑Lacy [2000] VSCA 24; (2000) 1 VR 667
Drummond‑Jackson v British Medical Association [1970] 1 All ER 1094
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
FAI General Insurance Co Ltd v RAIA Insurance Brokers Ltd (1992) 108 ALR 479
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Fletcher v POS Solutions Australia Pty Ltd [2004] VSC 507
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Herald & Weekly Times v Popovic [2003] VSCA 161; (2003) 9 VR 1
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
Lucas‑Box v News Group Newspapers Ltd [1986] 1 WLR 147
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Mallard (1997) 68 SASR 184
Nationwide News Pty Ltd v Moodie [2003] WASCA 273; (2003) 28 WAR 314
Nixon v Slater & Gordon [2000] FCA 531; (2000) 175 ALR 15
Polly Peck (Holdings) plc v Trelford [1986] QB 1000
Radio 2UE Sydney Pty Ltd v Chesterton [2008] NSWCA 66
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 83 ALJR 654
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- Case
- [2009] WASC 271
- Decision Date
CaseChat Overview and Summary
The legal issues that the court had to decide included whether the meanings pleaded by the defendant were capable of arising from the publications in question, whether they failed to state the precise act or condition asserted of, or attributed to, the plaintiff, and whether they were substantially different from the plaintiff's imputation. The court had to navigate the balance between the requirement for specificity in pleadings and considerations of practical justice, considering whether the meanings pleaded by the defendant were sufficiently distinct from those of the plaintiff and whether they might cause confusion or unfairness at trial.
In its reasoning, the court held that the first Polly Peck imputation should be struck out because it failed to state the precise act or condition asserted of, or attributed to, the plaintiff, or with which he was charged. The court found that the reason or circumstances why the plaintiff had not paid the sum he was obliged to pay were not specified in the defendant's plea, which was likely to lead to confusion at the trial and unfairness to the plaintiff. The ambiguity or uncertainty did not arise from the spoken words but from the defendant's plea, which did not adequately connect to the plaintiff's financial position. The court concluded that the first Polly Peck imputation was not a permissible variant of the imputation pleaded by the plaintiff.
The court granted the application to strike out the first Polly Peck imputation and dismissed the remainder of the application. This decision underscores the importance of specificity in defamation pleadings and the need to avoid ambiguity that could prejudice the plaintiff's case.
Orders
Orders of the court
Application granted
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
The requirement to plead the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged gives rise to issues concerning the degree of specificity required in a pleading. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson J said that the pleading rules requiring specificity raised questions of degree, and said that if a 'problem arises the solution will usually be found in considerations of practical justice rather than philology' (137). The degree of specificity should be decided in light of the published material, with reference to the appropriate test: whether confusion is likely about the plaintiff's alleged meaning. Ambiguity may flow from the published material. The plaintiff must specify the meanings to be argued for, which may include quite general meanings, depending on just what was published. Having regard to considerations of practical justice, the first Polly Peck imputation should be struck out. The imputation fails to state the precise act or condition asserted of, or attributed to, the plaintiff, or with which he is charged. The defamatory sting of the allegations or charges against the plaintiff in the Spoken Words and the article lies in the reasons why, or circumstances in which, the plaintiff had not paid the sum he was obliged to pay. The defendant's plea fails to state that reason or circumstances. That is likely to lead to confusion at the trial and unfairness to the plaintiff. The ambiguity or uncertainty does not arise from the Spoken Words. The Spoken Words attribute to the plaintiff a reason for not paying. That reason is connected with the plaintiff's financial position. The third basis on which the plaintiff challenges the first Polly Peck imputation is that it is not a permissible variant of the imputation pleaded by the plaintiff. Parties may disagree about the meaning conveyed by a publication. In the first type of disagreement, a defendant might argue that the publication does not convey the imputation pleaded by the plaintiff, but seek to justify a different meaning that is capable of arising from the publication. This can be described as a Lucas‑Box defence after the English Court of Appeal decision in Lucas‑Box v News Group Newspapers Ltd [1986] 1 WLR 147, but in Australia is often referred to as a Polly Peck defence: see Kenyon A T, 'Perfecting Polly Peck: Defences of Truth and Opinion in Australian Defamation Law and Practice' (2007) 29 Sydney Law Review 651, 658. A defendant might also argue that the multiple imputations conveyed by a publication are not distinct, but have a common sting, and that proving the truth of one aspect of the common sting will justify the entire publication. This can be described as a Polly Peck common sting defence. The defendant does not rely upon a 'common sting' defence in this case. A defendant might also argue that the publication carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations that are substantially true and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations. This is described under the uniform defamation acts as the defence of contextual truth. The defendant does not rely on a contextual defence in this case.