Poland v Hedley [No 3] - [2021] WASC 284

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   POLAND -v- HEDLEY [No 3] [2021] WASC 284
CORAM:   LE MIERE J
HEARD:   30 JULY 2021
DELIVERED          :   16 AUGUST 2021
PUBLISHED           :   19 AUGUST 2021
FILE NO/S:   CIV 1370 of 2019
BETWEEN:   GREGORY DAVID POLAND
Plaintiff

AND

KATE HEDLEY
First Defendant

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Defendant

Nathan John HONDROS
Third Defendant

Claire BRADLEY
Proposed Fourth Defendant

David BIRCH
Proposed Fifth Defendant

Andrew William HASTIE
Proposed Sixth Defendant

Catchwords:

Practice and procedure - Parties - Joinder - Rules of the Supreme Court 1971 (WA) - Whether necessary to join proposed fourth, fifth and sixth defendants - Whether arguable case which could withstand summary judgment entry or strike out application - Joinder granted

Defamation - Limitation Act 2005 (WA) - Application to commence proceedings outside of statutory limitation period - Whether not reasonable in the circumstances for plaintiff to have commenced action within one year of publication - Whether extension of time would prejudice defendant or diminish prospects of fair trial - Extension granted

Legislation:

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

Result:

Joinder granted
Extension of time granted

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett & Mr A Tharby
First Defendant	:	Ms C Galati
Second Defendant	:	Ms C Galati
Third Defendant	:	Ms C Galati
Proposed Fourth Defendant	:	Mr C P K Russell
Proposed Fifth Defendant	:	Ms R Young
Proposed Sixth Defendant	:	Ms R Young

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	Banki Haddock Fiora
Second Defendant	:	Banki Haddock Fiora
Third Defendant	:	Banki Haddock Fiora
Proposed Fourth Defendant	:	Pragma Legal
Proposed Fifth Defendant	:	Kennedys
Proposed Sixth Defendant	:	Kennedys

Cases referred to in decision:

Clark v Ibrahim [2014] VSC 30
HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153
Lakaev v Denny [2010] NSWSC 1480
Meyer v Solomon [2019] WASC 458
Wedge v Service Finance Corp Ltd [2002] WASCA 54
Westpac Banking Corporation v Anderson [2017] WASC 106

LE MIERE J:

Summary

The plaintiff has applied by chamber summons filed 27 May 2021 for orders that Claire Bradley, David Birch and Andrew Hastie (proposed defendants) be joined as defendants to this action and for the time for the plaintiff to commence proceedings against those proposed defendants in respect of the articles complained of, which were published on 27 and 28 February 2019, be extended pursuant to s 40 of the Limitation Act 2005 (WA).
The applications are opposed by the proposed defendants. The existing defendants took no part in the application.
For the reasons which follow, I will order the joinder of the proposed defendants and extend time for the plaintiff to commence proceedings against them to a date seven days after the making of the orders to give effect to these reasons.

Application for joinder

Order 18 r 6(2)(b) of the Rules of the Supreme Court 1971 (WA) relevantly provides that at any stage 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.

Continue reading Poland v Hedley [No 3]

Details

AGLC: Poland v Hedley [No 3] [2021] WASC 284
Case: [2021] WASC 284
Decision Date: 19 AUGUST 2021

CaseChat Overview and Summary

In the case of Poland v Hedley [No 3], the plaintiff, Poland, brought an action for defamation against Hedley. The dispute arose from articles published in the West Australian newspaper that Poland alleged were defamatory. The plaintiff sought to join additional defendants, including a media agency and individuals, who were allegedly involved in the publication of the articles. The defendants argued that the plaintiff had not made out an arguable case that could withstand a summary judgment or strike out application, and that the additional defendants should not be joined. The defendants also argued that the action was commenced outside the statutory limitation period and that any extension of the limitation period would prejudice them or diminish the prospects of a fair trial.

The court had to decide whether the plaintiff had established an arguable case against the proposed additional defendants and whether it was necessary for the plaintiff to join them to the proceeding. The court also had to determine whether the plaintiff's action was commenced outside the statutory limitation period and whether an extension of the limitation period would prejudice the defendants or diminish the prospects of a fair trial. The court found that there were reasonable grounds to suspect that each of the proposed defendants was involved in the publication of the articles and that it was open to infer that they were involved in providing the allegedly unlawfully obtained recording of the meeting at the Subiaco Hotel to the authors or contributors of the articles. The court also found that the plaintiff had established an arguable case against the proposed additional defendants and that it was not necessary for the plaintiff to join them to the proceeding at that time. The court further found that the plaintiff's action was commenced outside the statutory limitation period but that an extension of the limitation period would not prejudice the defendants or diminish the prospects of a fair trial.

The court granted leave for the plaintiff to join the proposed additional defendants and extended the limitation period for the commencement of the action. The court held that the principles in relation to the determination of applications for summary judgment should be applied in considering whether the plaintiff should have leave to join a defendant to the proceeding. The court held that there may be circumstances where it is not necessary that the plaintiff adduce evidence to make out a prima facie case against the proposed defendant. The court held that this was such a case for the following reasons. The court held that it was open to infer, or at the very least there were reasonable grounds to suspect, that each of the proposed defendants was involved in providing to Ms Hedley and Mr Hondros, the authors or contributors of the alleged defamatory articles, the allegedly unlawfully obtained recording of the meeting at the Subiaco Hotel between the plaintiff and Mr Grainger for the purpose of publishing the articles and contributing to the content of the articles. The court held that it was not necessary at this time to determine whether the inference should be drawn. The court held that it was open to infer, as the plaintiff did, that it was Mr Grainger who provided information relevant to the articles to Mr Hondros. The court held that it was not necessary at this time to determine whether that inference should be drawn. The court held that on 25 February 2019, two days before publication of the first article, Mr Grainger met with Mr Hastie and Ms Bradley, his office manager, at Mr Hastie's office. Shortly after the meeting Mr Grainger sent a copy of the recording of the Subiaco Hotel meeting to Ms Bradley and Ms Bradley emailed a copy of the recording to Mr Birch, Mr Hastie's media manager. The court held that it was open to infer that Mr Grainger discussed with Mr Hastie and Ms Bradley his meeting with the plaintiff and matters referred to in the articles complained of.

The court made orders granting leave for the plaintiff to join the proposed additional defendants and extending the limitation period for the commencement of the action.

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

The principles in relation to the determination of applications for summary judgment were conveniently summarised by Pritchard J in Westpac Banking Corporation v Anderson:[1]A party should not ordinarily be denied the opportunity to have his or her case determined following trial, and for that reason, the jurisdiction to grant summary judgment should be reserved for the clearest of cases, where there is a high degree of certainty about the ultimate outcome of the action if it were allowed to go to trial. The question is whether, on the material before the Court, it has been demonstrated that the plaintiff's action should not be permitted to proceed to trial because it is apparent that it must fail. However, that does not mean that summary judgment will be given only where the case is so hopeless as not to require argument. Extensive argument may be necessary to demonstrate that a party's case is so clearly untenable that it cannot possibly succeed. [52][1] Westpac Banking Corporation v Anderson [2017] WASC 106. A defendant may resist summary judgment in favour of a plaintiff on the ground that, even though the defendant cannot point to a specific issue which ought to be tried, he or she may be able to satisfy the court that the circumstances ought to be investigated.[2] A similar principle should be applied in considering whether the plaintiff should have leave to join a defendant to the proceeding. There may be circumstances where it is not necessary that the plaintiff adduce evidence to make out a prima facie case against the proposed defendant. This is such a case for the following reasons.[2] HSBC Bank Australia Ltd v Mavaddat [2015] WASC 153 [95]; Wedge v Service Finance Corp Ltd [2002] WASCA 54. It is open to infer, or at the very least there are reasonable grounds to suspect, that each of the proposed defendants was involved in providing to Ms Hedley and Mr Hondros, the authors or contributors of the alleged defamatory articles, the allegedly unlawfully obtained recording of the meeting at the Subiaco Hotel between the plaintiff and Mr Grainger for the purpose of publishing the articles and contributing to the content of the articles. It is not necessary at this time to determine whether the inference should be drawn. Mr Hondros received information relevant to the articles from two confidential sources. One of them was one of the three people who, together with the plaintiff, attended the Subiaco Hotel meeting. It is open to infer, as the plaintiff does, that it was Mr Grainger. It is not necessary at this time to determine whether that inference should be drawn. On 25 February 2019, two days before publication of the first article, Mr Grainger met with Mr Hastie and Ms Bradley, his office manager, at Mr Hastie's office. Shortly after the meeting Mr Grainger sent a copy of the recording of the Subiaco Hotel meeting to Ms Bradley and Ms Bradley emailed a copy of the recording to Mr Birch, Mr Hastie's media manager. It is open to infer that Mr Grainger discussed with Mr Hastie and Ms Bradley his meeting with the plaintiff and matters referred to in the articles complained of.