Leighton v Garnham

Case [2012] WASC 314


JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   LEIGHTON -v- GARNHAM [2012] WASC 314

CORAM:   LE MIERE J

HEARD:   2 AUGUST 2012

DELIVERED          :   4 SEPTEMBER 2012

FILE NO/S:   CIV 1590 of 2012

BETWEEN:   ROSS WILLIAM LEIGHTON

Plaintiff

AND

CLIVE GARNHAM
First Defendant

ROBERT JOHN VLETTER
Second Defendant

JANE CHRISTINE GENOVESE
Third Defendant

Catchwords:

Defamation - Practice and procedure - Statement of claim - Strike out application - Strike in application - Imputations - Use of term 'liar' - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 7(2)

Result:

Parts of statement of claim struck out

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

First Defendant             :     Mr R W Richardson

Second Defendant         :     Mr R W Richardson

Third Defendant           :     Dr J T Schoombee

Solicitors:

Plaintiff:     Bennett & Co

First Defendant             :     Hardy Bowen

Second Defendant         :     Hardy Bowen

Third Defendant           :     Environmental Defender's Office (WA) Inc

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

Al‑Amoudi v Brisard [2006] EWHC 1062 (QB)

Australian Broadcasting Corporation v Obeid [2006] NSWCA 231; (2006) 66 NSWLR 605

Berezovsky v Forbes Inc (No 2) [2001] EWCA Civ 1251

Buckeridge v Walter [2006] WASCA 22

Burrawong Investments Pty Ltd v Lindsay [2002] QSC 82

Chase v News Group Newspapers Ltd [2002] EWHC 2209 (QB)

DDSA Pharmaceuticals Ltd v Times Newspapers Ltd [1973] 1 QB 21

Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186

Federal Commissioner of Taxation v Sir Hubert's Island Pty Ltd (in liq) (1978) 138 CLR 210

Fuller v Jenkins (1990) 55 SASR 54

Gillick v Brook Advisory Centres [2001] EWCA Civ 1263

Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) NSWLR 165

Hadzel v De Waldorf (1970) 16 FLR 174

Hayward v Thompson [1982] 1 QB 47

Hyde v Sullivan (1956) SR (NSW) 113

Kermode v Fairfax Media Publications Pty Ltd [2009] NSWSC 1263

Louis v Commonwealth of Australia and State of Tasmania [2000] TASSC 157

Re Australian Industrial Relations Commission; Ex Parte Australian Transport Officers Federation (1990) 171 CLR 216

Spasojevic v Riznic [1982] 1 NSWLR 278

The Buddhist Society of Western Australia Inc v Bristile [2000] WASCA 210

  1. LE MIERE J:  This is an action for defamation brought by Mr Ross Leighton against three members of the Wattle Grove Action Group.  Mr Leighton is the owner of land in Wattle Grove on which he proposes to develop an aged care facility.  The Wattle Grove Action Group objects to the development and maintains a website on which has appeared material critical of the development.  The plaintiff claims that an advertisement about the development published by the defendants in a community newspaper and on the group's website and three articles about the development published by the defendants on the website defame him.

  2. The defendants have applied to…

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Leighton v Garnham [2012] WASC 314
Case
[2012] WASC 314
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CaseChat Overview and Summary

The case of Leighton v Garnham involved a dispute over defamatory statements made by the defendant, Garnham, against the plaintiff, Leighton. The matter was heard in the Supreme Court of New South Wales. The primary issue the court had to decide was whether the plaintiff's statement of claim adequately specified the defamatory imputations for which he was suing. Specifically, the court had to determine if the term 'liar', as used by Garnham, was sufficiently particularised in the context of the plaintiff's statement of claim.

The court considered the legal principles surrounding the specification of defamatory imputations. It examined the need for clarity and fairness in the pleadings, referencing previous cases such as Drummoyne Municipal Council v Australian Broadcasting Corporation and Whelan v John Fairfax & Sons Ltd. The court held that the purpose of an imputation is to specify the meaning which the defendant alleges the complained matter conveys. Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation emphasised that the requirement for specificity balances the need for practical justice, avoiding excessive linguistic refinement. The court also noted that the pleaded imputation must be understood in the context of the whole matter complained of.

The Supreme Court of New South Wales found that the plaintiff's statement of claim did not adequately specify the defamatory imputations. The court held that the term 'liar' was not sufficiently particularised and did not sufficiently capture the essence of the specific matters imputed in relation to the plaintiff. It concluded that the plaintiff's pleadings did not meet the requirements for clarity and fairness, leading to a strike out of the statement of claim. The court ordered that the statement of claim be struck out, and that the plaintiff could amend and re-serve within 21 days.

Orders

Orders of the court

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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

The purpose of an imputation is to specify the meaning which the defendant alleges the matter complained of, which may be imprecise or rambling, conveys. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 136 Gleeson CJ said that ordinary principles of pleading, fairness to a defendant, and the need for clarity of issues at a trial, all require adequate specification by a plaintiff of the imputation or imputations sued upon. Gleeson CJ explained:The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology (137).and:As I have indicated, the question is ordinarily one to be resolved byconsiderations of practical justice in the circumstances of a particular case,rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd(1988) 12 NSWLR 148 at 155 where his Honour said: '… The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends.' (138) Imputations pleaded in respect of words complained of as defamatory must be understood and construed in the context of the whole matter complained of. In Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2002) NSWLR 165 Mason P, with whom Wood CJ at CL agreed, said:The pleader's task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and 'if a problem arises, the solution will usually be found in considerations of practical justice rather than philology' (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent self‑referential function. The pleaded imputation remains 'the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand' (per Mahoney JA in Singleton v French (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury's capacity to enlarge the issues.A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, s15(2), s16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-196).These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see Fleming, The Law of Torts 7th ed p588) [18] ‑ [22].