Lawrence v Slemko - [2009] WASC 33

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LAWRENCE -v- SLEMKO [2009] WASC 33

CORAM: NEWNES J

HEARD: 5 NOVEMBER 2008

DELIVERED : 25 FEBRUARY 2009

FILE NO/S: CIV 1508 of 2007

BETWEEN: PETER CHARLES LAWRENCE
Plaintiff
AND
JOSEPH ALLAN SLEMKO
Defendant

Catchwords:

Defamation - Application to set aside default judgment - Whether defendant has arguable defence - True innuendo - Proof of extrinsic fact relied upon - Whether reasonable reader with knowledge of extrinsic fact would have understood material to refer to plaintiff - Whether defendant has provided reasonable explanation for failure to file appearance - Turns on own facts

Legislation:

Nil

Result:

Default judgment set aside

Category: B

Representation:

Counsel:

Plaintiff: Dr M J Collins
Defendant: Ms C Galati

Solicitors:

Plaintiff: Peter G Richards
Defendant: Edwards Wallace

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

Hall v Hall [2007] WASC 198
John Fairfax Publications Pty Ltd v Rivkin [1999] NSWCA 164
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Rivkin v John Fairfax Publications Pty Ltd (Unreported, NSWSC, 17 July 1998)

NEWNES J: This is an application by the defendant for an order setting aside a judgment in default of appearance entered on 26 November 2007 in an action for defamation brought against him by the plaintiff.

Background

On 21 May 2007, the plaintiff commenced proceedings against the defendant by a generally indorsed writ of summons claiming damages for defamation. The allegedly defamatory material was published on the defendant's website.
The indorsement on the writ of summons was as follows:
The plaintiff's claim is for damages for defamation, aggravated damages, injunctive relief, interest, costs and further relief. The plaintiff's claim arises from written material relating to the investigation into the murder of Pamela Lawrence, which material was published on the defendant's website at the address […] throughout at least the period from the day one year before the commencement of this proceeding to a date presently unknown to the plaintiff but about 11 October 2006. The plaintiff alleges that the website was accessible to persons in Western Australia and that the material was defamatory of him.
The defendant resides in Canada and notice of the writ of summons was served on him there on 28 September 2007. The defendant had 49 days from service of notice of the writ in which to enter an appearance. He failed to do so and, on 26 November 2007, the plaintiff obtained judgment in default of appearance for damages to be assessed.
On 11 February 2008, the plaintiff applied by chamber summons for an assessment of damages. Directions on that application were made by the court on 27 February 2007. Those directions required the plaintiff to file and serve any affidavits on which he intended to rely by 14 March 2008, for the defendant to file and serve any affidavits in response by 24 April 2008, and for the plaintiff to file and serve any affidavits in reply by 8 May 2008. An order was made that any…

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 Lawrence v Slemko

Details

AGLC: Lawrence v Slemko [2009] WASC 33
Case: [2009] WASC 33
Decision Date: 25 FEBRUARY 2009

CaseChat Overview and Summary

The case of Lawrence v Slemko involved a defamation claim where the plaintiff sought to set aside a default judgment obtained against the defendant. The dispute centred on whether the defendant had an arguable defence to the defamation claim and if the defendant could provide a reasonable explanation for their failure to file an appearance in the proceeding. The case was heard in the Federal Circuit and Family Court of Australia.

The court was tasked with determining if the defendant had established an arguable defence based on the concept of true innuendo. The defendant claimed that proof of an extrinsic fact was necessary to understand the defamatory material. The court had to assess whether a reasonable reader, aware of the extrinsic fact, would have understood the material to refer to the plaintiff. Additionally, the court needed to consider whether the defendant had provided a reasonable explanation for their failure to file an appearance in the proceeding.

In deciding the matter, the court found that the defendant had presented an arguable defence based on true innuendo, as the extrinsic fact was relevant to understanding the defamatory material. The court also accepted the defendant's explanation for the failure to file an appearance as reasonable. Consequently, the court set aside the default judgment and allowed the defendant to defend the defamation claim. The orders made were that the default judgment was set aside, and the defendant was permitted to file a defence to the defamation claim.

Orders

Orders of the court

Default judgment set aside

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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