JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MOIR -v- FLINT & ANOR [2002] WASC 48
CORAM: McLURE J
HEARD: 22 FEBRUARY 2002
DELIVERED : 20 MARCH 2002
FILE NO/S: CIV 1164 of 2001
BETWEEN: KATHERINE JULIE MOIR
Plaintiff
AND
JOHN FLINT
First DefendantNATIONWIDE NEWS PTY LTD (ACN 008 438 828)
Second Defendant
Catchwords:
Defamation - Leave to amend defence - Pleading of Polly Peck imputations - Whether the defence of fair comment only applies if it responds to the plaintiff's imputations or permissible variations thereof - Whether required to plead the substance of the comment - Extension of time for further particulars of republication - Turns on own facts
Legislation:
Supreme Court Rules 1971 (WA), O 20 r 13(6)
Result:
Applications successful
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett
First Defendant : Mr S M Davies
Second Defendant : Mr S M Davies
Solicitors:
Plaintiff: Bennett & Co
First Defendant : Edwards Wallace
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Anderson v Nationwide News Pty Ltd [2001] VSC 335
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Control Risks Ltd v New English Library Ltd [1989] 3 All ER 577
David Syme & Co Ltd v Hore‑Lacy (2000) 1 VR 667
Drummoyne Municpal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41‑669
Gumina v Williams (No 2) (1990) 3 WAR 351
Merivale v Carson (1887) 20 QBD 275
Moir v Flint & Anor [2001] WASC 183
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Peter Walker & Son Ltd v Hodgson [1909] 1 KB 239
Porteous v Rinehart & Ors, unreported; SCt of WA (Owen J); Library No 980755; 22 December 1998
Sian Lloyd v Express Newspapers PLC [1997] EWCA Civ 1319
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Vitale & Ors v Bednall & Anor [2001] WASC 278
Case(s) also cited:
Aga Khan v Times Publishing Company [1924] 1 KB 675
Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259
Cutler v McPhail [1962] 2 QB 292
Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121
Lyon v Daily Telegraph Ltd [1943] KB 746
Polly Peck (Holdings) plc v Trelford [1986] QB 1000
Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90
Sims v Wran [1984] 1 NSWLR 317
Taylor v Jecks (1993) 10 WAR 309
Wallis & Ors v Wallis [2001] WASC 134
Watt v Herald & Weekly Times Ltd [1998] 3 VR 740
McLURE J: There are two applications before me. The defendants apply for leave to file a substituted defence in accordance with a minute dated 7 December 2001 and for further and better particulars of the plaintiff's republication plea…
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- AGLC
- Moir v Flint [2002] WASC 48
- Case
- [2002] WASC 48
- Decision Date
CaseChat Overview and Summary
The court found that the difficulty in applying the principles of defamation often arises, as identified by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation. The court held that the requirement for specificity in pleadings is a matter of degree and should be resolved by considerations of practical justice. The court rejected the plaintiff's submission that the imputation did not represent the final distillation of the sting, as the word "truth" in context connotes the requisite knowledge and intention. The court also found that the plaintiff's objection to the imputation in the defence failed as it did not express the precise act or condition asserted of or attributed to the plaintiff. However, the court did agree with the plaintiff's submission that the imputation in the defence did not express the precise act or condition asserted of or attributed to the plaintiff.
The court further held that it was not the function of the court on an interlocutory application to resolve matters of that nature. The defendants should be refused leave only if their pleading is untenable or manifestly groundless. The court found that this was not the case here and rejected the plaintiff's objection to the imputation in the defence.
The court also found that the defendants were not required to plead the substance of the comment. It was sufficient for the defendants to plead the particulars of justification for the imputation in the defence. The court granted the defendants leave to amend their defence to include the Polly Peck imputations. The court also granted the defendants an extension of time for further particulars of republication, as the matter turned on its own facts.
In conclusion, the court held that the defendants were not required to plead the substance of the comment and that it was not the function of the court on an interlocutory application to resolve matters of that nature. The court granted the defendants leave to amend their defence to include the Polly Peck imputations and an extension of time for further particulars of republication.
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
Reasons for decision
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Ratio Decidendi
Legal Principle Established
However, difficulty often arises in the application of the principles for the reasons concisely identified by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. He said (at p 137):"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him …, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology." The application of the principles can be further complicated when the imputation is pleaded as part of a Polly Peck defence. Often an argument that the imputation does not encapsulate the final distillation of the sting is to urge in effect for the imputation pleaded by the plaintiff. It is not the function of the Court on an interlocutory application to resolve matters of that nature. The defendants should be refused leave only if their pleading is untenable or manifestly groundless. That is not so here. Accordingly, I reject the plaintiff's submission that the imputation does not represent the final distillation of the sting. There is an overlap between the objection that the imputation does not express the precise act or condition and the submission that the imputation is not defamatory. The plaintiff says that the imputation does not assert that her alleged failure to tell the whole truth was deliberate. In my view that is implicit in the assertion that she did not tell the whole truth. The word "truth" in context connotes the requisite knowledge and intention. For these reasons the plaintiff's objection to par 4.2 fails. The plaintiff's grounds of objection to par 4.1 were repeated for par 4.2. I agree with the plaintiff's submission that the imputation in par 4.2 does not express the precise act or condition asserted of or attributed to the plaintiff. Rather it describes events which the defendants contend occurred and leave the reader to speculate as to the precise charge levelled against the plaintiff. Sub‑paragraph 16 of par 5.2 is one of 19 sub‑paragraphs containing particulars of justification of the plaintiff's pleaded imputation that "the plaintiff is a hypocrite in that whilst purporting to grant interviews for the public interest her principle motive in granting interviews is financial gain". The particulars of justification to this imputation are very lengthy, as is sub‑par 16. It is unnecessary to set the particulars out in full. In substance, sub‑par 16 is to the effect that the plaintiff did not tell the whole truth about her dealings with the defendants and Mr Adshead during her interview with 6PR. In particular, it is alleged that:(a)contrary to what the plaintiff said on 6PR she:(i)she gave permission to Mr Adshead to mention the Birnies;(ii)she did not speak to the defendants off the record;(iii)she did not specify to the defendants that the statement she was making to them were not allowed to be published because of the Criminal Code;(b)she did not say (as was the fact) that the interview was provided freely and voluntarily and that she had granted permission for the second defendant to publish her story about her that included references to the criminal attacks perpetrated on her by the Birnies and the problems of crime in Northbridge.