Marshall v Smith

Case [2013] WASC 452


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

  1. 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…

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Marshall v Smith [2013] WASC 452
Case
[2013] WASC 452
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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

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

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Ratio Decidendi

Legal Principle Established

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