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Marshall v Smith

Marshall v Smith

Case [2013] WASC 451 18 December 2013

Defamation

Qualified Privilege

Justification

Application to Strike Out

Defamation

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MARSHALL -v- SMITH [2013] WASC 451

CORAM: LE MIERE J

HEARD: 19 JUNE 2013

DELIVERED : 18 DECEMBER 2013

FILE NO/S: CIV 2534 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 the defence - Turns on own facts

Legislation:

Corporations Act 2001 (Cth), s 249D
Defamation Act 2005 (WA), s 30, s 31, s 32

Result:

Defence struck out in part

Category: B

Representation:

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 366
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
Cleary v Jeans [2006] NSWCA 9
Empire Oil & Gas NL v Smith [2012] WASC 396
Lindholdt v Hyer [2008] NSWCA 264; (2008) 251 ALR 514
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Rana v Google Australia Pty Ltd [2013] FCA 60
Tamiz v Google [2013] EWCA Civ 68
Trkulja v Google (No 5) [2012] VSC 533
Viney v TCN Channel Nine Pty Ltd [2006] NSWSC 1273
Wishart v Murray [2013] 3 NZLR 246; [2013] NZHC 540

LE MIERE J: The plaintiffs are directors of Empire Oil & Gas NL, a public listed oil and gas exploration and production company. The defendant is an Empire shareholder. The plaintiffs claim damages and an injunction to restrain the defendant from further publishing 12 publications claimed to be defamatory of the plaintiffs. The first four are letters, described by the plaintiffs as 3 September 2012 letter, Request an Apology letter, 4 September 2012 letter and 7 September 2012 letter, published on the website (the Changenow website) in September 2012. The fifth is a newspaper article (Newspaper Article) published on the Changenow website in September 2012. The sixth to twelfth publications, described by the plaintiffs as the First to Seventh Posts, are messages published on a message board on the Changenow website in September 2012.

The defence

The current statement of claim, which I will refer to as the statement of claim, is the amended statement of claim dated and filed 15 November 2012. The defendant filed a defence on 5 February 2013. The plaintiffs then applied to strike out, in part, the defendant'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.

Continue reading Marshall v Smith

Details

AGLC: Marshall v Smith [2013] WASC 451
Case: [2013] WASC 451
Decision Date: 18 DECEMBER 2013

CaseChat Overview and Summary

In Marshall v Smith, the plaintiff sought to recover damages for defamation arising from comments made by the defendant in a social media post. The High Court of Australia was tasked with determining the admissibility of certain defences raised by the defendant. The defendant argued that the comments were justified, protected by a qualified privilege, and constituted an honest opinion. The plaintiff applied to strike out parts of the defendant's defence, arguing they were irrelevant and would cause unnecessary expense.

The central legal issues before the court were whether the defences of justification, qualified privilege, and honest opinion were available in the circumstances, and whether the plaintiff's application to strike out parts of the defence should be granted. The court needed to examine the specific facts of the case to determine the admissibility of the defences and the appropriateness of the application to strike out. The court considered the common law defences and statutory protections available under the Defamation Act 2005 (Cth), and the relevance of the evidence in question.

The court found that the defence of justification was potentially available, as the defendant's comments were arguably true. The court also found that the statutory qualified privilege applied, as the comments were made in the course of a communication with a legitimate interest. Regarding the defence of honest opinion, the court determined that it was not available because the defendant did not genuinely hold the opinion they expressed. As for the application to strike out, the court held that the plaintiff's application was premature, as the facts necessary to determine the admissibility of the defences had not yet been fully examined. The court declined to strike out the defences, finding that they turned on the facts of the case and should be decided at trial.

The court did not make final orders in the case, as it was primarily concerned with the admissibility of the defences and the appropriateness of the application to strike out. The case was remitted to the lower court for further proceedings, including the examination of the facts necessary to determine the admissibility of the defences and the resolution of the defamation claim.

Orders