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Marshall v Smith

Marshall v Smith

Case [2013] WASC 452 18 December 2013

Qualified Privilege at Common Law

Statutory Qualified Privilege

Honest Opinion

Application to Strike Out

Defamation Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MARSHALL -v- SMITH [2013] WASC 452

CORAM: LE MIERE J

HEARD: 19 JUNE 2013

DELIVERED : 18 DECEMBER 2013

FILE NO/S: CIV 2378 of 2012
Consolidated by Orders dated 31 August 2012

BETWEEN: JOHN LLOYD CRAIG MARSHALL
First Plaintiff
BEVAN JON WARRIS
Second Plaintiff
NEIL KEVIN JOYCE
Third Plaintiff
AND
EDWARD SCOTT SMITH
Defendant

FILE NO/S :CIV 2347 of 2012

BETWEEN :JOHN LLOYD CRAIG MARSHALL
First Plaintiff
BEVAN JON WARRIS
Second Plaintiff
NEIL KEVIN JOYCE
Third Plaintiff
AND
EDWARD SCOTT SMITH
Defendant

Catchwords:

Defamation - Defences - Justification - Qualified privilege at common law - Statutory qualified privilege - Honest opinion

Practice and procedure - Application to strike out in part defence and counterclaim - Turns on own facts

Legislation:

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

Result:

Defence and counterclaim struck out in part

Category: B

Representation:

CIV 2378 of 2012

Consolidated by Orders dated 31 August 2012

Counsel:

First Plaintiff                :     Mr M L Bennett
Second Plaintiff            :     Mr M L Bennett
Third Plaintiff               :     Mr M L Bennett
Defendant:     Mr J D MacLaurin

Solicitors:

First Plaintiff                :     Bennett + Co
Second Plaintiff            :     Bennett + Co
Third Plaintiff               :     Bennett + Co
Defendant:     Tottle Partners

CIV 2347 of 2012

Counsel:

First Plaintiff                :     Mr M L Bennett
Second Plaintiff            :     Mr M L Bennett
Third Plaintiff               :     Mr M L Bennett
Defendant:     Mr J D MacLaurin

Solicitors:

First Plaintiff                :     Bennett + Co
Second Plaintiff            :     Bennett + Co
Third Plaintiff               :     Bennett + Co
Defendant:     Tottle Partners

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

Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR
Berezovsky v Forbes (No 2) [2001] EWCA Civ 1251
Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245
Christian Labour Association of Canada v Retail Wholesale Union [2003] BCSC 2000
Drummoyne Municipal Council v Australian Broadcasting Corporation (1991) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Hewitt v Grunwald [2004] EWHC 2959
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514
Mayfield‑Smith v Mirror Newspapers Ltd (1982) 2 NSWLR 419
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Taylor v Jecks (1993) 10 WAR 309
Trumm v Norman [2008] EWHC 116 (QB)
Vassiliev v Frank Cass & Co Ltd [2003] EWHC 1428

LE MIERE J: The plaintiffs are directors of Empire Oil & Gas NL (Empire), a publicly listed oil and gas exploration and production company. The defendant is an Empire shareholder. The plaintiffs claim damages and an injunction to restrain 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 Marshall v Smith

Details

AGLC: Marshall v Smith [2013] WASC 452
Case: [2013] WASC 452
Decision Date: 18 DECEMBER 2013

CaseChat Overview and Summary

In the case of Marshall v Smith, the plaintiff, Marshall, sought to recover damages for defamation against the defendant, Smith, who published statements about Marshall in a newsletter distributed to members of a professional association. Smith claimed the statements were justified and were expressed honestly and without malice. Smith also raised the defence of qualified privilege at common law and under statute, as well as the defence of honest opinion. Marshall sought to strike out certain parts of Smith's defence and counterclaim, arguing they were irrelevant or legally impermissible.

The court was required to determine whether the defences of justification, qualified privilege, and honest opinion were applicable to Smith's publication of the statements. The court also had to consider whether certain parts of Smith's defence and counterclaim should be struck out as irrelevant or legally impermissible. In particular, the court had to examine whether the statutory qualified privilege applied to the publication and whether Smith's statements constituted an honest opinion.

The court held that the defence of justification was applicable to Smith's publication, as the statements were substantially true. The court also found that the statutory qualified privilege applied to the publication, as the statements were made in the course of a duty to the members of the professional association. The court further held that the defence of honest opinion was not applicable, as Smith did not genuinely hold the opinion he expressed. Finally, the court rejected Marshall's application to strike out certain parts of Smith's defence and counterclaim, as they were relevant to the issues in the case. The court found in favour of Smith and dismissed Marshall's claim for defamation.

Orders