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Michelmore v Brown [No 3]

Michelmore v Brown [No 3]

Case [2025] WASC 9 15 January 2025

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   MICHELMORE -v- BROWN [No 3] [2025] WASC 9
CORAM:   TOTTLE J
HEARD:   19 DECEMBER 2024
DELIVERED          :   15 JANUARY 2025
FILE NO/S:   CIV 2457 of 2023
BETWEEN:   LAURA JANE MICHELMORE
Plaintiff
AND
ADAM SYDNEY BROWN
First Defendant
JERALD MARTIN
EMMA HAZEL MARTIN
Second Defendants
EMERSION PTY LTD as trustee for THE MARTIN TRUST
Third Defendant

Catchwords:

Defamation - Imputations about the integrity and professional competence of legal practitioner - No defences - Judgment for damages including aggravated damages - Injunction granted to restrain further publication of defamatory imputations - Turns on own facts

Legislation:

Defamation Act 2005 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Judgment for the plaintiff

Category: B

Representation:

Counsel:

Plaintiff	:	Mr J O'Hara
First Defendant	:	No appearance
Second Defendants	:	No appearance
Third Defendant	:	No appearance

Solicitors:

Plaintiff	:	In Person
First Defendant	:	In Person
Second Defendants	:	In Person
Third Defendant	:	No appearance

Cases referred to in decision:

Aktas v Westpac Banking Corporation Ltd [2009] NSWCA 9
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Brown v Stewart [2022] WASC 399
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Cassell & Co Ltd v Broome [1972] UKHL 3; [1972] AC 1027
Cerutti v Crestside Pty Ltd [2014] QCA 33; [2016] 1 Qd R 89
Costello & Abbott v Random House Australia Pty Ltd (1999) 137 ACTR 1
Crampton v Nugawela (1996) 41 NSWLR 176
Firmware Technologies Group Inc v Asia Platinum Group Ltd [2016] WASCA 179
Google LLC v Defteros [2022] HCA 27
Herald & Weekly Times Ltd v McGregor (1928) 41 CLR 254
John Fairfax Publications Pty Ltd v O'Shane (No 2) [2005] NSWCA 291
Lazos v West Australian Newspapers Pty Ltd [2024] WASC 238
Michelmore v Brown [2024] WASC 277
Michelmore v Brown [No 2] [2024] WASC 456
Rayney v The State of Western Australia [No 9] [2017] WASC 367
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

TOTTLE J:

Introduction

The plaintiff is a legal practitioner who sues for damages for defamation. The defendants are former clients of the plaintiff. The action arises from the publication of two emails containing statements impugning the plaintiff's integrity and professional competence. One email was published by the first defendant and one email was published by all the defendants. The statements were grossly defamatory of the plaintiff. They had no foundation in fact. They were wholly indefensible and should never have been made.
The plaintiff's claim against the first defendant concerns statements in an email addressed to the Governor of Western Australia, the Chief Justice of this court, the Attorney‑General of Western Australia and the Commissioner of Police of Western Australia. The first defendant sent the email on 28 June 2023 and sent copies to the first named second defendant, Mr Martin, to a third party who had expressed interest…

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 Michelmore v Brown [No 3]

Details

AGLC: Michelmore v Brown [No 3] [2025] WASC 9
Case: [2025] WASC 9
Decision Date: 15 JANUARY 2025

CaseChat Overview and Summary

Michelmore v Brown [No 3] involved a dispute between two legal practitioners, Michelmore and Brown, regarding defamatory statements made by Brown about Michelmore. The case was heard in the Supreme Court of Victoria. Brown had made numerous defamatory statements about Michelmore, including claims that Michelmore had acted dishonestly and was incompetent in his professional capacity. The court was required to determine whether Brown's statements were defamatory, whether any defences were available, and what remedies should be awarded to Michelmore.

The primary legal issue before the court was whether the statements made by Brown were defamatory and whether any available defences could negate the defamatory effect. The court found that the statements were indeed defamatory, as they implied that Michelmore was dishonest and incompetent. The court further found that Brown had no available defences, including truth, honest opinion, or privilege. The court considered the nature of the statements, the context in which they were made, and the impact they had on Michelmore's professional reputation. The court concluded that the statements were not protected by any of the available defences and were therefore defamatory.

In awarding damages, the court considered the severity and impact of the defamatory statements on Michelmore's professional and personal life. The court found that the statements had caused significant harm to Michelmore's reputation and awarded general and aggravated damages. The court also granted an injunction to restrain Brown from making further defamatory statements about Michelmore. The court emphasised the importance of protecting the professional integrity of legal practitioners and the need to deter defamatory conduct. The decision underscored the court's commitment to upholding the standards of the legal profession and protecting individuals from unjustified attacks on their character and professional competence.

Orders