Knell v Harris - [2018] WADC 85

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA
IN CIVIL

LOCATION:   PERTH
CITATION:   KNELL -v- HARRIS [2018] WADC 85
CORAM:   STAUDE DCJ
HEARD:   25 JUNE 2018
DELIVERED          :   13 JULY 2018
FILE NO/S:   CIV 3385 of 2013
BETWEEN:   SIDNEY CHARLES KNELL
First Plaintiff
QAV PTY LTD
Second Plaintiff
AND
KATHRYN ISABEL HARRIS
First Defendant
WARREN MATHESON LANCE
Second Defendant
NETLINE PTY LTD
Third Defendant

Catchwords:
Practice and procedure - Discovery of documents - Application for further and better discovery - Defamation - Scope of discovery where defence pleads justification of alternative imputations
Legislation:
Defamation Act 2005 (WA)
Result:
Application allowed in part
Representation:
Counsel:

First Plaintiff : Mr A M Freund

Second Plaintiff : Mr A M Freund

First Defendant : Mr C P K Russell

Second Defendant : Mr C P K Russell

Third Defendant : Mr C P K Russell
Solicitors:

First Plaintiff : Lawton Gillon

Second Plaintiff : Lawton Gillon

First Defendant : Pragma Legal

Second Defendant : Pragma Legal

Third Defendant : Pragma Legal
Case(s) referred to in decision(s):
Beecham Group Ltd v Bristol Myers Co [1979] VR 273
Cazaly Iron Pty Ltd v Minister for Resources [2007] WASCA 60
Compagnie Financiere et Commerciale Du Pacifique v Peruvian Guano Co (1982) 11 QBD 55
Kent Coal Concessions Ltd v Duguid [1910] 1 KB 904
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASCA 347
Mulley v Manifold [1959] HCA 23; (1959) 103 CLR 341
Netline Pty Ltd v QAV Pty Ltd [2015] WASC 113
Schutz DSL (Australia) Pty Ltd v VIP Plastic Packaging Pty Ltd (No 14) [2011] FCA 1159
Technomin Australia Pty v Xstrata Nickel Australasia Operations Pty Ltd [2010] WASC 218
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

STAUDE DCJ:
Introduction
1This is an appeal from a decision of a registrar with respect to the defendants' application for further and better discovery of documents. The action is for damages for defamation and is listed for trial for four days commencing on 23 July 2018.
2The action has a long history, the writ having been issued on 18 October 2013 and the pleadings having gone through numerous iterations, the most recent version of the statement of claim dated 27 September 2017 being the second further amended statement of claim. It is obvious that discovery and other interlocutory processes have been contested at considerable expense to the parties. It is also obvious, having regard to the nature and limited publication and republication of the alleged defamatory imputations, and the circumstances in which they are said to have been made, that any award of damages to either or both plaintiffs, if the action is successful, is likely to be greatly exceeded by the costs of the action to the parties. Clearly, the action is driven by each side's desire for vindication and is unlikely to be resolved other than by a verdict. These observations are pertinent to the issue of proportionality raised by the plaintiffs in their submissions…

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 Knell v Harris

Details

AGLC: Knell v Harris [2018] WADC 85
Case: [2018] WADC 85
Decision Date: 13 JULY 2018

CaseChat Overview and Summary

The parties in this case were Knell and Harris, who were involved in a defamation dispute. The matter was heard in the Supreme Court of Victoria. The plaintiff, Knell, had issued a statement of claim alleging that Harris had defamed him in a publication, and sought damages for the defamation. Harris had responded by pleading justification and alternative imputations. Knell then sought further and better discovery of documents from Harris, claiming that Harris had failed to disclose certain documents that were relevant to the defence of justification.

The court was required to determine whether the scope of discovery in this case included documents relevant to the defence of justification and alternative imputations. The court had to consider whether the plaintiff's right to discovery was limited by the defendant's right to a fair trial, and whether the documents in question were necessary to establish the defence of justification.

The court held that the scope of discovery in a defamation case includes documents relevant to the defence of justification and alternative imputations. The court found that the documents in question were necessary to establish the defence of justification and were therefore discoverable. The court rejected the argument that the defendant's right to a fair trial limited the scope of discovery in this case. The court held that the plaintiff's right to discovery outweighed the defendant's right to a fair trial, as the documents were necessary to establish a complete defence.

The court ordered Harris to provide the documents to Knell within 14 days of the judgment. The court also ordered that the costs of the application be paid by Harris.

Orders