Keith Arthur Bradley v Min Li Wu - [2013] ACTSC 67

KEITH ARTHUR BRADLEY and ANOR v MIN LI WU
[2013] ACTSC 67 (19 April 2013)

INJURIOUS FALSEHOOD – ingredients – publication not in issue – whether published matter false – whether published maliciously – whether plaintiffs have suffered actual damage consequent on publication

PRACTICE AND PROCEDURE – application for summary judgment – claim for damages for injurious falsehood – publication not in issue – issues of truth and malice not appropriate for summary determination – no evidence of actual damage – application refused

Court Procedures Rules 2006 (ACT) r 1146

Kevern v Marshall [2012] ACTSC 9
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Palmer Bruyn & Parker Ltd v Parsons (2001) 208 CLR 388
Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669
Orion Pet Products v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191

No. SC 23 of 2011

Judge: Master Harper
Supreme Court of the ACT

Date: 19 April 2013

IN THE SUPREME COURT OF THE     )
  )          No. SC 23 of 2011
AUSTRALIAN CAPITAL TERRITORY )

BETWEEN: KEITH ARTHUR BRADLEY
First Plaintiff

AND:JOHN DAVID BRADLEY, KEITH ARTHUR BRADLEY, WILLIAM JOHN GERARD MCCARTHY AND SUSAN ELIZABETH PROCTOR t/as BRADLEY ALLEN LAWYERS
Second Plaintiff

AND: MIN LI WU
Defendant

ORDER

Judge:  Master Harper
Date:  19 April 2013
Place:  Canberra

THE COURT ORDERS THAT:

the application by the plaintiffs filed on 24 May 2012 be dismissed.

the defendant’s costs of the application be paid by the plaintiffs.

the action be listed on a date no earlier than twenty-one days from the date of this decision before the duty judge for directions.

This is an application by the plaintiffs for summary judgment for damages to be assessed.

The plaintiffs commenced the present action in January 2011. The pleading upon which the present application is based is an amended statement of claim of 27 April 2012, to which a defence was filed on 27 August 2012.

The first plaintiff is a Canberra solicitor. The second plaintiffs are the partners in a Canberra law firm, and include the first plaintiff.

The causes of action pleaded in the amended statement of claim are defamation and injurious falsehood. On the hearing of the application, senior counsel for the plaintiffs limited the application for summary judgment to the injurious falsehood count. The plaintiffs seek damages, and an injunction restraining the defendant from publishing or causing to be published in writing or orally any statement to the fact or suggesting that the plaintiffs or any of them or any person on their behalf has taken or received from the defendant or her daughter, Alice Perry, a sum of money to which the plaintiffs were not entitled.

In summary, the statement of claim pleads that the law firm acted in proceedings in the Supreme Court of New South Wales on behalf of Ms Perry, the defendant’s daughter. The first plaintiff had…

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: [2013] ACTSC 67
Decision Date: 19 April 2013

CaseChat Overview and Summary

Keith Arthur Bradley and his wife sought damages against Min Li Wu for injurious falsehood, alleging that Wu published false information about them that was malicious and resulted in actual damage. The dispute was heard in the Supreme Court of Western Australia. The plaintiffs argued that Wu had falsely published information about them, which was malicious, and that they had suffered actual damage as a consequence. The court was required to determine whether the published matter was false, whether it was published maliciously, and whether the plaintiffs had suffered actual damage as a result of the publication.

The court found that the issues of truth and malice were not appropriate for summary determination, and there was no evidence of actual damage. The publication itself was not in issue, but the court noted that the plaintiffs had not provided evidence of actual damage. The application for summary judgment was dismissed, as the court held that the matters in dispute were not suitable for summary determination and there was insufficient evidence to support a claim for damages. The defendant’s costs of the application were awarded to Wu, and the action was listed for further directions.

The court ordered that the application filed by the plaintiffs on 24 May 2012 be dismissed, and that the defendant’s costs of the application be paid by the plaintiffs. The action was to be listed before the duty judge for directions no earlier than twenty-one days from the date of the decision. This outcome highlights the importance of providing evidence of actual damage in claims for injurious falsehood, and the need for a thorough examination of the issues in dispute before a summary judgment can be granted.

Orders

Orders of the court

1. the application by the plaintiffs filed on 24 May 2012 be dismissed.

2. the defendant’s costs of the application be paid by the plaintiffs.

3. the action be listed on a date no earlier than twenty-one days from the date of this decision before the duty judge for directions.

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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