Major v Woodside Energy Ltd [No 2] - [2009] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 2] [2009] WASC 45

CORAM: NEWNES J

HEARD: 28 JANUARY 2009

DELIVERED : 27 FEBRUARY 2009

FILE NO/S: CIV 1186 of 2007

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD (ACN 005 482 986)
Defendant

Catchwords:

Defamation - Application to strike out parts of statement of claim - Application 20 months out of time - Whether extension of time to bring application should be granted - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time refused
Application to strike out statement of claim dismissed

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Mr T D Blackburn SC & Ms C Galati

Solicitors:

Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gardiner v Ray [1999] WASC 140
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] 33 WAR 1

NEWNES J: I have before me an application by the defendant to strike out a number of the defamatory imputations pleaded in the plaintiff's statement of claim. The plaintiff (who is represented by Sydney solicitors) did not appear by counsel on the application on the ground that he could not afford to do so. I heard oral submissions on behalf of the defendant and a copy of the transcript of the hearing was then sent by the court to the plaintiff's solicitors in Sydney and they were invited to provide written submissions in response. Those submissions were received on 4 February 2009. The defendant had seven days in which to file any submissions in reply. As it turned out, the defendant considered that no submissions in reply were necessary.
The application to strike out parts of the statement of claim is well out of time. The statement of claim was filed on 8 March 2007 and served on the same day. Pursuant to O 20 r 19(3)(a) of the Rules of the Supreme Court 1971 (WA), any application to strike out the statement of claim had to be made within 21 days of service of the statement of claim (not later than 29 March 2007). The current application was filed on 27 November 2008. It is, therefore, some 20 months out of time.
The defendant seeks an extension of time within which to bring the application. Before turning to the grounds relied upon for that extension, it is appropriate to describe the progress of the action to date.
The action was commenced on 23 February 2007 and the statement of claim was filed on 8 March 2007. The defence was filed on 18 April 2007. The plaintiff sought particulars of the defence on 30 April 2007 and those particulars were provided by the defendant on 29 May 2007. Further particulars of the defence were sought and provided during June and July 2007. On 8 August 2007 the plaintiff served his reply.
The plaintiff's…

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: [2009] WASC 45
Decision Date: 27 FEBRUARY 2009

CaseChat Overview and Summary

The case of Major v Woodside Energy Ltd [No 2] involved the plaintiff, Major, suing Woodside Energy Ltd for defamation. The plaintiff alleged that defamatory statements made by the defendant had harmed his reputation and caused him loss. The defendant sought to strike out parts of the plaintiff's statement of claim on the grounds of imprecision and sought an extension of time to do so, 20 months after the initial statement of claim was filed. The court was required to determine whether the defendant's application to strike out parts of the statement of claim should be granted and whether an extension of time to bring the application should be allowed.

The court considered the principles governing the requirement for a plaintiff to 'specify' the act or condition they claim was attributed to them in defamation cases. The court noted that the practical application of these principles can vary depending on the facts and circumstances of each case, and that the issue to be decided is whether there is likely to be confusion either at the pleading stage or at trial in relation to the meaning for which the plaintiff contends. The court found that the defendant had not made out a case for an extension of time, as the prejudice to the defendant did not outweigh the prejudice that would be occasioned to the plaintiff by way of delay and costs if the issues were now opened up. The court also noted that the defendant had deliberately chosen not to object to the statement of claim within the time permitted by the Rules and had allowed the action to reach the point of being entered for trial before raising any objections.

The court dismissed the defendant's application to strike out parts of the statement of claim and refused the application for an extension of time. The court held that the defendant had made a deliberate decision not to object to the statement of claim within the time permitted by the Rules and throughout the subsequent interlocutory steps, and that any prejudice to the defendant that may arise from the form of the statement of claim did not outweigh the prejudice that would be occasioned to the plaintiff by way of delay and costs if the issues were now opened up. The court held that the defendant would now have to live with its decision.

The court made no orders for an extension of time or to strike out the statement of claim.

Orders

Orders of the court

Application for extension of time refused

Application to strike out statement of claim dismissed

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

On the other hand, as Gleeson CJ pointed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135: The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, … is one which, in its practical application, raises questions of degree … whilst the principles relevant to the plaintiff's obligation [to 'specify' the act or condition which he claims was attributed to him] remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter ... '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 trial in relation to the meaning for which the plaintiff contends': Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, 155. (137 ‑ 138) In the present case, particularly having regard to the terms of the matter complained of, I am not persuaded that the imputations are embarrassing or that they are likely to give rise to confusion at the trial. In any event, I am not persuaded that the extent of any prejudice the defendant might suffer by reason of the form of the imputations would justify permitting a strike out application to be brought at this late stage of the action. A similar complaint is made by the defendant in respect of the imputations pleaded in pars 9H and 13H of the statement of claim. Once again, the specific words in the imputations which are said to give rise to the imprecision are taken from the words complained of. In this instance, the meaning which the plaintiff contends were conveyed by the words complained of could have been more precisely and clearly expressed. But, again, I do not consider that any prejudice the defendant might suffer is such as to justify entertaining a strike out application at this late stage. It follows that I do not consider that the defendant has made out a case for an extension of time. I do not consider that the defendant will suffer irreparable prejudice if it is unable to bring the strike out application. Nor is it likely that the preparation of the action for trial will be significantly impeded or the trial itself adversely affected if the matters about which the defendant complains are not determined now. Any prejudice to the defendant that may arise from the form of the statement of claim does not outweigh the prejudice that would be occasioned to the plaintiff, by way of delay and costs, in now opening up issues as to the form of the pleadings. As I have already observed, the defendant made a deliberate decision not to attack the statement of claim within the time permitted by the Rules and throughout the subsequent interlocutory steps - over a period of some 20 months - it gave no notice of any objections to the pleading. And while the defendant says it wanted to avoid giving the plaintiff the impression that it was being obstructive so as to enhance the likelihood of resolving the action at mediation (an objective, I should say, that did not appear to deter it from pursuing a strongly contested interlocutory dispute over discovery), in fact no complaint was made about the statement of claim, and no notice given of any possible objections, until some two months after the prospect of mediation had been abandoned. It was not until after the action had been entered for trial and a trial date was due to be fixed that objections were raised for the first time. Having allowed the action to reach that point, the defendant will now simply have to live with its decision.