McJannett v Gibbs - [2012] WASC 369

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McJANNETT -v- GIBBS [2012] WASC 369

CORAM: LE MIERE J

HEARD: 20 MARCH 2012

DELIVERED : 11 OCTOBER 2012

FILE NO/S: CIV 2642 of 2011

BETWEEN: ROBERT PAUL McJANNETT
Plaintiff
AND
LINDA GIBBS
First Defendant
THE CHAMBER OF COMMERCE AND INDUSTRY WA
Second Defendant

Catchwords:

Defamation - Practice and procedure - Summary judgment application - Strike out application - Turns own facts

Evidence - Evidence Act 1906 (WA) s 80 - Admissibility of foreign judgment

Legislation:

Defamation Act 2005 (WA), s 7, s 37, s 42
Equal Opportunity Act 1984 (WA)
Evidence Act 1906 (WA), s 73A, s 80
Evidence Act 1995 (NSW), s 157
Privacy Act 1988 (WA)
Rules of the Supreme Court 1971 (WA), O 16 r 1, O 20 r 2(2), O 20 r 19 (1)

Result:

Application for summary judgment dismissed
Statement of claim struck out

Category: B

Representation:

Counsel:

Plaintiff:     In person
First Defendant             :     Mr D M McKenna
Second Defendant         :     Mr D M McKenna

Solicitors:

Plaintiff:     In person
First Defendant             :     Jarman McKenna
Second Defendant         :     Jarman McKenna

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

Bennett v The State of Western Australia [2012] WASCA 70
Bride and Bride v Peat Marwick Mitchell [1989] WAR 383
Cvetkovic v The Queen [2010] NSWCCA 329
Mickelberg v Director of Perth Mint [1986] WAR 365

LE MIERE J: The defendants, Linda Gibbs and the Chamber of Commerce and Industry WA (CCI), have applied to strike out the plaintiff's statement of claim pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) (RSC) and for summary judgment pursuant to O 16 r 1.

Writ and pleadings

The plaintiff commenced this action by writ of summons issued on 31 August 2011. The writ claims damages for defamation and discrimination arising out of an email the defendants sent to the plaintiff's workplace in 2010. The plaintiff filed and served a statement of claim dated 26 September 2011. On 23 November 2011 the defendants applied to strike out the statement of claim and for summary judgment. That application was adjourned to 15 December 2011 for directions. On 15 December 2011 I granted the plaintiff leave to amend his statement of claim and adjourned the matter further to 28 February 2012. On 30 December 2011 the plaintiff filed an amended statement of claim. On 23 January 2012 the defendants each filed a defence.
The matter came on for directions again on 28 February 2012. The defendants pressed their application to strike out the statement of claim and for summary judgment. I adjourned that application to 20 March 2012. On 20 March 2012 I directed the plaintiff to file and serve a minute of proposed amended statement of claim on or before 27 March 2012 and adjourned the defendants' applications to strike out the statement of claim and for summary judgment for hearing on 17 May 2012.
On 5 April 2012 the plaintiff filed a minute of proposed substituted…

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: [2012] WASC 369
Decision Date: 11 OCTOBER 2012

CaseChat Overview and Summary

The case before the court involved a defamation claim brought by McJannett against Gibbs. McJannett sought to establish that Gibbs had defamed him through various publications, leading to reputational damage. The case was heard in the Supreme Court of Western Australia, where Gibbs moved to strike out the claim and for summary judgment based on the inadmissibility of foreign judgments. Gibbs argued that McJannett's case turned on evidence from a foreign judgment, which was not admissible under section 80 of the Evidence Act 1906 (WA). The court was required to determine whether McJannett's evidence was sufficient to proceed to trial and if the foreign judgment was admissible.

The court examined whether McJannett's evidence was sufficient to establish a prima facie case of defamation and whether the foreign judgment could be admitted as evidence. The primary issue was whether McJannett could rely on the foreign judgment to substantiate his claim. The court found that McJannett's case did not turn on the foreign judgment and that he had presented sufficient evidence to proceed to trial. Additionally, the court held that the foreign judgment was admissible under section 80 of the Evidence Act 1906 (WA), as it was relevant to the facts of the case and could be used to support McJannett's claim.

In its decision, the court dismissed Gibbs's application to strike out the claim and denied his application for summary judgment. The court ruled that McJannett's evidence was sufficient to establish a prima facie case and that the foreign judgment was admissible as relevant evidence. Consequently, the defamation claim was allowed to proceed to trial. The court did not make any final orders in this instance but allowed the case to move forward, leaving the ultimate resolution of the defamation claim to the trial process.

Orders