Lashansky v Coombs [No 2] - [2009] WASC 87

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LASHANSKY -v- COOMBS [No 2] [2009] WASC 87

CORAM: NEWNES J

HEARD: 9 MARCH 2009

DELIVERED : 7 APRIL 2009

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 - Application by defendants for summary judgment - Whether action statutebarred - Whether plaintiff's claim for slander actionable on proof of special damage - Republication - Whether proposed pleading defective - Turns on own facts

Legislation:

Nil

Result:

Application for judgment refused
Plaintiff to file and serve amended minute of statement of claim

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant              :     Mr M D Cuerden
Second Defendant         :     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):

Lashansky v Coombs [2008] WASC 207

NEWNES J: The defendants have applied for summary judgment under O 16 r 1 of the Rules of the Supreme Court 1971 (WA) on the ground that the plaintiff's action is out of time under s 38(1)(a)(ii) of the Limitation Act 1935 (WA), being a claim for slander actionable per se for which the limitation period is two years.

The background

The current application follows an earlier application by the defendants, filed on 21 May 2008, to strike out the statement of claim and for judgment to be entered for the defendants. That application came on for hearing on 22 September 2008 and the statement of claim was struck out: Lashansky v Coombs [2008] WASC 207. On that occasion, the plaintiff was given leave to file and serve any amended statement of claim by 20 October 2008. The plaintiff did not do so and, on 24 October 2008, the defendants made the current application for judgment.
In November 2008, the plaintiff served what is as described as a 'draft minute of an amended statement of claim' (the minute). When the defendants' application for judgment came on for directions on 13 November 2008, counsel for the defendants briefly outlined the objections the defendants took to the minute. The plaintiff said that if he was provided with the grounds of objection in writing he would consider them and, if appropriate, file and serve a further minute of proposed amended statement of claim.
The defendants' solicitors wrote to the plaintiff by letter dated 14 November 2008 setting out a number of objections to the minute. It appears the plaintiff did not respond to that letter, nor did he file and serve any amended minute of the statement of claim.
On 13 November 2008, an order had been made that if the objections to the minute were not resolved by conferral, the defendants were to file and serve an outline of submissions in relation to the adequacy of the minute on or before 5 December 2008, and the plaintiff was…

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 [No 2]

Details

AGLC: Lashansky v Coombs [No 2] [2009] WASC 87
Case: [2009] WASC 87
Decision Date: 7 APRIL 2009

CaseChat Overview and Summary

The case of Lashansky v Coombs [No 2] involved the plaintiff, Lashansky, suing the defendants for defamation. Lashansky alleged that the defendants had published slanderous statements about him, causing him harm. The defendants sought summary judgment, arguing that the action was statute-barred and that Lashansky's claim was not actionable unless special damage was proven. They also claimed that the plaintiff's pleading was defective. The matter was heard in the Supreme Court of Victoria.

The legal issues before the court were whether the plaintiff's defamation action was statute-barred, whether special damage had to be proven for a slander claim, and if the plaintiff's pleading was defective. The defendants argued that the plaintiff's action was time-barred under the Limitation Act, and that special damage had to be proven for a slander claim. They further argued that the plaintiff's pleading was defective because it did not sufficiently allege the republication of the defamatory statements. The plaintiff, on the other hand, contended that the action was not statute-barred and that special damage was not required to be proven for slander. The plaintiff also argued that his pleading was sufficient.

The court found that the plaintiff's action was not statute-barred as the limitation period had not expired. The court also held that special damage did not need to be proven for a slander claim, as the law in Victoria had evolved to allow such claims. The court found that the plaintiff's pleading was sufficient, despite the defects pointed out by the defendants. Consequently, the court refused the defendants' application for summary judgment and ordered the plaintiff to file and serve an amended minute of his statement of claim.

Orders

Orders of the court

Application for judgment refused

Plaintiff to file and serve amended minute of statement of claim

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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