Moran v Schwartz Publishing Pty Ltd (No 3) - [2015] WASC 215

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

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.
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…

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: [2015] WASC 215
Decision Date: 12 JUNE 2015

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.

Orders