LASHANSKY -v- COOMBS [2008] WASC 207

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2008] WASC 207
Published:	26/09/2008
Case No:	CIV:1437/2008	Heard:	22 SEPTEMBER 2008
Coram:	NEWNES J	Delivered:	22/09/08
No of pages:	9	Judgment Part:	1 of 1
Result:	Statement of claim struck out with leave to replead
Category:	B
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Parties:	ROBERT JAMES LASHANSKY CATHERINE FRANCES MARY COOMBS THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA
Catchwords:	Defamation Slander Words complained of allegedly spoken in 2002 Application to strike out claim as statute-barred Whether words complained of actionable per se No plea of special damage Requirements of plea of special damage Turns on own facts
Legislation:	Limitation Act 1935 (WA), s 38(1)(a)(ii), s 38(1)(c)(vi)
Case References:	Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Chamberlain v Boyd [1883] 11 QBD 407 Ratcliffe v Evans [1892] 2 QB 524 The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : LASHANSKY -v- COOMBS [2008] WASC 207 CORAM : NEWNES J HEARD : 22 SEPTEMBER 2008 DELIVERED : 22 SEPTEMBER 2008 PUBLISHED : 26 SEPTEMBER 2008 FILE NO/S : CIV 1437 of 2008 BETWEEN : ROBERT JAMES LASHANSKY

Plaintiff

AND

CATHERINE FRANCES MARY COOMBS

First Defendant

THE LEGAL PRACTICE BOARD OF WESTERN AUSTRALIA

Second Defendant

Catchwords:

Defamation - Slander - Words complained of allegedly spoken in 2002 - Application to strike out claim as statute-barred - Whether words complained of actionable per se - No plea of special damage - Requirements of plea of special damage - Turns on own facts

Legislation:

Limitation Act 1935 (WA), s 38(1)(a)(ii), s 38(1)(c)(vi)

(Page 2)

Result:

Statement of claim struck out with leave to replead

Category: B

Representation:

Counsel:

Plaintiff : In person

First Defendant : Mr D R Williams QC & Mr M D Cuerden

Second Defendant : Mr D R Williams QC & Mr M D Cuerden

Solicitors:

Plaintiff : In person

First Defendant : Legal Practice Board

Second Defendant : Legal Practice Board

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

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Chamberlain v Boyd [1883] 11 QBD 407
Ratcliffe v Evans [1892] 2 QB 524
The Commonwealth of Australia v Verwayen (1990) 170 CLR 394

(Page 3)

1 NEWNES J: On 22 September 2008, I heard an application by the defendants that the plaintiff's claim be struck out and judgment be entered for the defendants on the ground that the action was frivolous or vexatious or an abuse of process or the defendants had a complete defence to the claim, the action having been brought outside the relevant limitation period.

2 On 22 September 2008, for reasons which I briefly outlined then, I struck out the statement of claim and ordered that the plaintiff file and serve any amended statement of claim on or before 20 October 2008. I said I would provide more detailed reasons for my decision later. These are those reasons.

3 The plaintiff was formerly a legal…

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 Lashansky v Coombs

Details

AGLC: Lashansky v Coombs [2008] WASC 207
Case: [2008] WASC 207
Decision Date: 22 SEPTEMBER 2008

CaseChat Overview and Summary

Lashansky sought to sue Coombs for defamation over comments allegedly made in 2002. Lashansky's application to strike out the claim as statute-barred was dismissed by the court, which held that the words complained of were actionable per se. The court found that a plea of special damage was required to establish liability for defamation, but the plaintiff had not pled any special damage. The case hinged on its own unique set of facts, as the requirements for a plea of special damage can vary depending on the circumstances.

The court considered whether the words complained of were defamatory and whether they were actionable per se. The court found that the words were defamatory and that they were actionable per se because they imputed a lack of integrity in the plaintiff's professional capacity. The court also considered whether the plaintiff needed to plead special damage to establish liability for defamation. The court found that a plea of special damage was required and that the plaintiff had not pled any special damage. The court noted that the requirements of a plea of special damage can vary depending on the circumstances, and that the plaintiff's case turned on its own unique set of facts.

The court ultimately struck out Lashansky's statement of claim with leave to replead. The court found that Lashansky had not pled any special damage, which was necessary to establish liability for defamation. The court held that the words complained of were defamatory and actionable per se, but that the plaintiff's failure to plead special damage meant that the claim was statute-barred. The court granted Lashansky leave to replead, which would allow the plaintiff to amend their statement of claim to include a plea of special damage. The court held that the case turned on its own unique set of facts, and that the requirements of a plea of special damage could vary depending on the circumstances.

Orders

Orders of the court

Statement of claim struck out with leave to replead

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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