Li v Herald & Weekly Times Limited - [2005] VSC 304

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

MAJOR TORTS LIST

No. 4641 of 2004

ABBIE LI and BY FOREVER YOUNG PTY LTD	Plaintiffs
v
HERALD & WEEKLY TIMES LIMITED (ACN 004 113 937) and KEITH MOOR	Defendants

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JUDGE:	GILLARD J.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	17 June 2005 (before Bongiorno J)
DATE OF JUDGMENT:	10 August 2005
CASE MAY BE CITED AS:	Li and anor v Herald & Weekly Times Limited and anor
MEDIUM NEUTRAL CITATION:	[2005] VSC 304

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DEFAMATION – Libel – Request for particulars – Identity of prospective witness concerning justification defence – Request for identification of comment in fair comment defence – Both requests refused.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr M.F. Wheelahan S.C. with Mr A. Strahan	Holding Redlich
For the Defendants	Mr W.T. Houghton Q.C. with Ms G. Schoff	Corrs Chambers Westgarth

HIS HONOUR:

This is the return of an application by the plaintiffs seeking further and better particulars of the defendants’ defence. The application came on for hearing before Bongiorno J, the Judge in charge of the Major Torts List, on 17 June 2005. The parties were represented and filed written submissions and addressed his Honour. After his Honour had reserved his decision, he formed the opinion that he should not hear the matter because of a pending contempt proceeding brought against the first defendant at his instigation. Accordingly, he informed the parties and the matter was transferred to me to consider on the papers. I had the benefit of the transcript of the proceeding. The parties were invited to make further submissions if they thought appropriate, however they declined.

Parties

The first plaintiff, Abbie Li (“Dr Li”) at all relevant times was a practitioner of Chinese medicine registered under the Chinese Medicine Registration Act 2000 carrying on a practice in Chinese natural medicine from rooms in Collins Street, Melbourne.

Dr Li conducts her practice under a business name “Forever Young” which is owned by the second plaintiff, By Forever Young Pty Ltd (“the company”).

The first defendant, Herald & Weekly Times Pty Ltd, is the proprietor and publisher of the Herald Sun newspaper, which has an extensive circulation throughout Victoria. The second defendant, Keith Moor (“the journalist”), was at all relevant times a journalist employed by the Herald Sun.

The Proceeding

On 20 February 2004 the plaintiffs instituted a proceeding against the two defendants in this Court by writ seeking damages for defamation. Dr Li claims damages in respect of eight articles published by the Herald Sun to its readers during the period from 26 May 2003 to 17 April 2004. The company has sought damages for alleged injury to its trading reputation in respect of four articles published during the period 26 May 2003 to 14 July 2003.

Each plaintiff has pleaded in respect to each article, that the article was defamatory in its natural and ordinary meaning and in accordance with the modern practice, has set out the alleged defamatory…

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.

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Details

Case: [2005] VSC 304
Decision Date: 10 August 2005

CaseChat Overview and Summary

In the case of Li v Herald & Weekly Times Limited, the plaintiff sought damages for defamation against the defendant, a media company, for statements made in a published article. The dispute centred around the adequacy of the defendant's defence in relation to the allegations of defamation. The matter was heard in the Federal Court of Australia.

The court was required to determine whether the plaintiff was entitled to particulars regarding the identity of a prospective witness and the specific comment relied upon in the defendant's justification and fair comment defences, respectively. The plaintiff argued that knowing the identity of the prospective witness and the specific comment would assist in preparing a response to the defences. The defendant contended that such information was not necessary for the plaintiff to adequately respond to the defences and that disclosure might prejudice their case.

The court found that the plaintiff was not entitled to the requested particulars. It held that the plaintiff had already been provided with sufficient information to prepare a response to the defences and that further details were not necessary. Additionally, the court considered that disclosing the identity of the prospective witness or the specific comment might cause undue prejudice to the defendant's case. Therefore, the court refused both requests for particulars.

As a result, the court determined that the plaintiff's requests for particulars were unwarranted and denied them. The court did not make any orders regarding the defamation claim itself, as the case was still in the early stages of litigation.

Orders