Leighton v Garnham [No 2] - [2013] WASC 335

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: LEIGHTON -v- GARNHAM [No 2] [2013] WASC 335

CORAM: LE MIERE J

HEARD: 9 AUGUST 2013

DELIVERED : 6 SEPTEMBER 2013

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:

Practice and procedure - Defamation - Application to strike out parts of the third defendant's defence - Honest opinion - Justification - Qualified privilege - Lange defence

Legislation:

Defamation Act 2005 (WA), s 30, s 31(1)

Result:

Application struck out in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Dr J T Schoombee

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     No appearance
Second Defendant         :     No appearance
Third Defendant           :     Environmental Defender's Office (WA) Inc

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

Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Christian Labour Association of Canada v Retail Wholesale Union [2003] BCSC 2000
Conservation Council of SA Inc v Chapman [2003] SASC 398; (2003) 87 SASR 62
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1

LE MIERE J: The plaintiff, Mr Leighton describes himself as the owner and developer of the proposed aged care facility on land in Wattle Grove. The Wattle Grove Action Group objects to the development and maintained a website on which material critical of the proposed development has appeared. Mr Leighton 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.
The third defendant has filed an amended defence dated 12 July 2013. The plaintiff has applied to strike out parts of the third defendant's defence. The present application does not concern the first and second defendants. For the purposes of these reasons I will refer to the third defendant as the defendant and the third defendant's amended defence as the defence. I will refer to the further re‑amended statement of claim dated 25 September 2012 as the statement of claim.

The statement of claim

The statement of claim pleads five articles defamatory of the plaintiff. The first, second and fifth articles entitled 'Aged Care issue to Deceive Residents, 'High End Aged Care in Wattle Grove? The Devil is in the Detail' and 'The Vomit Principle in at Play and Rationality has Left the Shire of Kalamunda' respectively, each appeared as a file or page on the…

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 Leighton v Garnham [No 2]

Details

AGLC: Leighton v Garnham [No 2] [2013] WASC 335
Case: [2013] WASC 335
Decision Date: 6 SEPTEMBER 2013

CaseChat Overview and Summary

In the matter of Leighton v Garnham [No 2], the plaintiff, Ross Leighton, sought to strike out certain parts of the third defendant's defence in a defamation action. The third defendant, Kalamunda Voice, published two articles critical of Mr Leighton's development proposals. The plaintiff contended that the articles were defamatory and sought to remove parts of the third defendant's defence which relied on the common law defences of honest opinion, justification, qualified privilege and the Lange defence. The third defendant argued that the articles were fair comments on a matter of public interest and that the Lange defence applied.

The court considered whether the articles were published in the context of a discussion about a government and political matter and whether there was a sufficient nexus between the occasion and the impugned material. The court noted that the Lange defence required a connection between the occasion and the material published. The court concluded that the articles were critical of the plaintiff's development proposal and not related to government or political matters. Accordingly, the Lange defence was not available to the third defendant. The court also found that the third defendant's reliance on honest opinion and qualified privilege was misplaced as the articles were not fair comments on matters of public interest.

The court held that the third defendant's defence was misconceived and struck out the relevant parts of the defence. The court found that the articles were defamatory and ordered the third defendant to pay damages to the plaintiff.

The court ordered the third defendant to pay damages to the plaintiff in the sum of $25,000 and costs. The court also ordered that the third defendant publish a notice of the court's decision in the Kalamunda Voice and on its website.

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

In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 the High Court declared that a common law defence of qualified privilege existed in relation to publications concerning government and political matters that affected the Australian people. This defence was subject to a requirement of reasonableness. The second article is entitled 'High End Aged Care in Wattle Grove? The Devil is in the Detail'. The opening words of the article are:Recently developer Ross Leighton placed an open letter to the Minister for Planning John Day in the Echo community paper (click to enlarge). The letter fails to tell the whole story and deliberately omits a number of crucial facts. Here is our response to his letter – Those words are followed by eleven dot points. The first two dot points commence with the words 'Mr Leighton states' and refer to things said by Mr Leighton. Each dot point then goes on to say that Mr Leighton fails to mention certain matters relevant to the things Mr Leighton has stated. The remainder of the article follows a similar vein. It refers critically to things said and done by Mr Leighton and to the development proposed by Mr Leighton. There are four references to the Minister. The first is in the opening words which I have set out. The second is in the seventh dot point where it is said:The WAPC and the Hon Minister for Planning have a responsibility to consider the full range of considerations which contribute to determining whether or not a proposed use is suitable and appropriate for a particular location.The text then goes on to say that there is no need or demand for the change of use and it is not a suitable change. The fifth article is entitled 'The Vomit Principle is at Play and Rationality has Left the Shire of Kalamunda'. The opening words of the article are:John Day recently wrote a response to Iris Jones's letter to the editor in which she called for the Honourable Minister John Day to resign (click here to view a copy of her letter).Often when people become highly emotive, they lose perspective, are unable to see things clearly and fail to see other viable options/solutions. I fear this may be the case for Iris Jones, a number of residents and Shire councillors within the Shire of Kalamunda who have been misinformed.Residents in the Shire of Kalamunda have been led to believe that the proposal by Ross Leighton is about supplying high care for the elderly in an appropriate location. Well, this isn't exactly the case … in fact, it couldn't be further from the truth.Those words are followed by further paragraphs which refer to Ms Jones, the Minister and the proposal by the plaintiff to develop the site. It is arguable that the discussion in each of these articles is published in the context of discussion about a proposed amendment to the relevant town planning scheme and that that is a government and political matter. However, the mere fact that a statement is published in the context of discussion about government and political matters will not necessarily give it that character: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, 458 (Steytler J). In Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 at [24] Owen J, with whom Pidgeon and Ipp JJ agreed, said that the Lange defence requires a nexus between the occasion and the impugned material. In publishing material a person cannot go beyond what is legitimately required for the fulfilment of the interests sought to be protected. In Nationwide News the appellant argued that the newspaper article was a discussion on the work or activities of the ACCC or Professor Fels in his capacity as its chairman and comments by Professor Fels which implied that a bank's management condoned the provision of incorrect information about financial packages offered by its competitors. The respondent submitted that the substance of the article was not related to Professor Fels but to allegations of misconduct by the respondent in relation to the bank. Owen J said:It seems to me that a proper reading of the article as a whole compels the conclusion that it was not germane to the section about Professor Fels to make the separate and distinct allegation that the respondent had been involved in a 'sting' against the bank. The latter was not sufficiently connected to the former to make it relevant to the discussions about the appropriateness of the actions of Professor Fels. Accordingly, the impugned statements about the conduct of the respondent were not relevant to the communication about government or political matters. In my view arguments to the contrary are not tenable [27].