Moran v Schwartz Publishing Pty Ltd (No 3)

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JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 3] [2015] WASC 215

CORAM:   KENNETH MARTIN J

HEARD:   10 APRIL 2015

DELIVERED          :   12 JUNE 2015

FILE NO/S:   CIV 1894 of 2014

BETWEEN:   TOBIAS FRIEDRICH MORAN

Plaintiff

AND

SCHWARTZ PUBLISHING PTY LTD
First Defendant

VIRGINIA PETERS
Second Defendant

Catchwords:

Defamation - Strike out application - Defences - Hybrid plea of fair report of public proceedings - New South Wales Coroner's Court - Book - Defamation Act 2005 (WA) s 29 - Residual components of the book's contribution to Chase level meaning - Not benign

Damages - Mitigation - Plaintiff's distress and annoyance - Attempt to plead numerous earlier publications (59) of defamatory imputations as to guilt or reasonable suspicion of murder

Legislation:

Defamation Act 2005 (WA)

Result:

Two paragraphs of defence struck out

Category:    A

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

First Defendant             :     Mr M C Goldblatt

Second Defendant         :     Mr M C Goldblatt

Solicitors:

Plaintiff:     Bennett + Co

First Defendant             :     Carmel Galati

Second Defendant         :     Carmel Galati

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

Boschetti v Carr [2002] WASC 211

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519

Chappell v Mirror Newspapers (Unreported, NSWSC, 24 July 1981)

Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11

Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211

Curistan v Times Newspapers Ltd [2008] EWCA CIV 432; [2009] QB 231

Dingle v Associated Newspapers Ltd (1964) AC 371; [1962] 3 WLR 229

Lucas‑Box v News Group Newspapers Ltd [1986] All ER 177; [1986] 1 WLR 147

Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86; [1965] 2 WLR 45

Mihaka v Wellington Publishing Co (1972) Ltd; Alister Taylor Publishing Ltd (third party) [1975] 1 NZLR 10

Moran v Schwartz Publishing Pty Ltd [2014] WASC 334

Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35

Peters v Television New Zealand Ltd (TVNZ) [2011] 2 NZCA 231; (2012) NZLR 466

Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 All ER 84

Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327

Shea v News Ltd [2015] WASC 1

  1. KENNETH MARTIN J:  By its application of 9 March 2015, the plaintiff applies to strike out two paragraphs in the defendants' amended defence filed on 16 February 2015.

  2. The plaintiff's interlocutory attack is now directed only at par 9 and par 14(b) of the amended defence - which respectively seek to raise on the part of the defendants, the following answering pleas:

    (a)as regards certain passages only in the defendants' book (Book), a fair report of proceedings of public concern pursuant to s 29(1) and 29(4)(e) of the Defamation Act 2005 (WA); and

    (b)of…

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Details
Case
[2015] WASC 215
Decision Date

CaseChat Overview and Summary

The case of Moran v Schwartz Publishing Pty Ltd (No 3) involved a defamation dispute in which the plaintiff, Mr Moran, sought damages against the defendant, Schwartz Publishing, for defamation in a book published by the defendant. The book, authored by Sarah Moran, contained allegations that Mr Moran was guilty of or reasonably suspected of murdering his wife. The matter was heard in the Supreme Court of Western Australia, with the Court required to address the defendant's strike-out application concerning the plaintiff's defences and the application of certain statutory defences.

The primary legal issues addressed by the Court were whether the plaintiff's attempt to plead numerous earlier publications of defamatory imputations was valid and whether the defences of fair report of public proceedings and residual components of the book's contribution to the overall meaning were applicable. The Court also considered whether the plaintiff had mitigated his damages by not taking steps to address the distress and annoyance caused by the book.

The Court held that the plaintiff's attempt to plead numerous earlier publications was not permissible, as it did not comply with the requirements of the Defamation Act 2005 (WA). The Court further found that the plaintiff's attempt to rely on the defence of a fair report of public proceedings was unsuccessful, as the book did not accurately and fairly report the proceedings of the New South Wales Coroner's Court. Finally, the Court held that the residual components of the book's contribution to the overall meaning were not benign and therefore did not engage the statutory defences. The Court also found that the plaintiff had not adequately mitigated his damages.

The Court ordered that the plaintiff's claims be struck out, with no orders as to costs.

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