JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: POLAND -v- HEDLEY [No 7] [2025] WASC 309
CORAM: HOWARD J
HEARD: 26 NOVEMBER 2024
DELIVERED : 6 AUGUST 2025
FILE NO/S: CIV 1370 of 2019
BETWEEN: GREGORY DAVID POLAND
Plaintiff
AND
KATE HEDLEY
First Defendant
AND
FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)
Second defendant
AND
NATHAN JOHN HONDROS
Third defendant
AND
CLAIRE BRADLEY
Fourth defendant
AND
DAVID BIRCH
Fifth defendant
AND
ANDREW WILLIAM HASTIE
Sixth defendant
AND
ZAK RICHARD FRANCIS KIRKUP
Seventh defendant
Catchwords:
Practice and Procedure - Application for leave to amend statement of claim - Application for leave to join additional plaintiffs - Where proposed statement of claim pleads an action by a single plaintiff in defamation and by four proposed plaintiffs in tortious conspiracy - Leave granted to plead proposed statement of claim with regard to defamation claims - Leave not granted with regard to tortious conspiracy claim as not maintainable - Leave not granted to join additional plaintiffs
Legislation:
Rules of the Supreme Court 1972 (WA)
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr A Tharby |
| First Defendant | : | Mr M C Goldblatt |
| Second defendant | : | Mr M C Goldblatt |
| Third defendant | : | Mr M C Goldblatt |
| Fourth defendant | : | Mr M C Goldblatt |
| Fifth defendant | : | Mr M C Goldblatt |
| Sixth defendant | : | Mr M C Goldblatt |
| Seventh defendant | : | Mr M C Goldblatt |
Solicitors:
| Plaintiff | : | Bennett |
| First Defendant | : | Carmel Galati |
| Second defendant | : | Carmel Galati |
| Third defendant | : | Carmel Galati |
| Fourth defendant | : | Carmel Galati |
| Fifth defendant | : | Carmel Galati |
| Sixth defendant | : | Carmel Galati |
| Seventh defendant | : | Carmel Galati |
Cases referred to in decision(s):
Dank v Whittaker [No 1] [2013] NSWSC 1062
Defteros v Google LLC [2017] VSC 158; (2017) 54 VR 592
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
English v Vantage Holdings Pty Ltd [2021] WASCA 47
Fairfax Media Publications v Voller [2021] HCA 27; (2021) 273 CLR 346
Garner v Central Innovation Pty Ltd [2022] FCA 64
Google LLC v Defteros [2022] HCA 27; (2022) 277 CLR 358
Griffith v The Australian Broadcasting Corporation [2004] NSWSC 582
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105; (2021) 57 WAR 468
Poland v Hedley [2023] WASCA 69
Poland v Hedley [2024] WASCA 74
Poland v Hedley [No 2] [2020] WASC 203
Poland v Hedley [No 3] [2021] WASC 284
Poland v Hedley [No 5] [2023] WASC 294
Poland v Hedley [No 6] [2024] WASC 168
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Thiess v TCN Channel Nine Pty Ltd [No 5] [1994] 1 Qd R 156
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580
Continue reading Poland v Hedley [No 7]
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- AGLC
- Poland v Hedley [No 7] [2025] WASC 309
- Case
- [2025] WASC 309
- Decision Date
CaseChat Overview and Summary
The court was tasked with deciding whether the plaintiffs could amend their statement of claim to include defamation claims by one plaintiff and tortious conspiracy claims by four proposed additional plaintiffs. The court also needed to determine if the proposed additional plaintiffs could join the action.
The court granted leave to amend the statement of claim in relation to the defamation claims. However, it refused leave for the tortious conspiracy claims because they were not maintainable. The court did not grant leave for the additional plaintiffs to join the action. The reasoning behind the refusal was largely based on the principles of reflective loss, where indirect losses such as the diminution of share value could not be claimed if the company itself had a separate cause of action for the same loss. The court also noted deficiencies in the pleading of the defendants' intent to injure and applied the coherence principle to further support its decision.
The final orders were that leave was granted to amend the statement of claim in relation to the defamation claims, but not for the tortious conspiracy claims. Additionally, the proposed additional plaintiffs were not permitted to join 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
In any event, in Griffith v The Australian Broadcasting Corporation[144] claims in deceit and injurious falsehood were struck out by reference to the judgments in Sullivan v Moody and Tame v New South Wales. The claim in deceit was struck out as it was held to be a claim to recover damages for harm to reputation.[145] The claim for injurious falsehood was not struck out because it was held that the effect of the plea was unclear. Cripps AJ said:It may be that the damage to which the first named plaintiff is entitled should it make out its claim for injurious falsehood is the same as it made out or could have made out in defamation. However, on the material before me I am not prepared to strike that claim out.[146][144] Griffith v The Australian Broadcasting Corporation [2004] NSWSC 582 (Griffith).[145] Griffith [31] - [32].[146] Griffith [33]. As I have already set out, in my view, this case is different because of the pleas that the losses have occurred by reason of the damage to the proposed plaintiffs' reputations. The 'indirect' losses claimed and the reflective loss principle The position I have reached in relation to not granting leave to plead the tortious conspiracy because of the deficiencies as to the pleading of the defendants' intention to injure and, further or alternatively, because of the 'coherence principle' means I do not need, again, strictly to consider the indirect losses which are proposed to be claimed by the plaintiffs in the Proposed SOC. However, I would not have granted leave to plead the 'indirect' losses in the Proposed SOC for the following reasons which I have expressed in short form. In short, as I understand it, taking a conservative view of the reflective loss principle, an 'indirect' loss (say by the diminution of the value of shares in a company) may be permitted if the party or parties suffering the indirect loss have a separate cause of action which might lead to the recovery of that indirect loss. The Proposed SOC, however, pleads, as observed above, one tortious conspiracy to injure all of the proposed plaintiffs. As noted above, in Poland v Hedley [No 6] Tottle J considered the principles described as the 'reflective loss principle';[147] and then, as I have set out in paragraph [117] above, his Honour offered certain 'observations' which I consider are pertinent to the Proposed SOC.[147] Poland v Hedley [No 6] [29] - [35]. No party, in this application, suggested that his Honour had mis-stated the applicable principles[148] and, with respect, I gratefully adopt his Honour's observations and summary of the relevant principles, including those from the Court of Appeal's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2].[149][148] Mr Poland's Outline of Submissions filed 1 October 2024 [31].[149] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105; (2021) 57 WAR 468 (Mineralogy [No 2]). The Court of Appeal in Mineralogy [No 2] stated the principles after a review of the authorities as follows:1.Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company.2.This will be so even if the company has declined or failed to take action to recover the loss.3.If the company suffers loss, but has no cause of action to sue to recover that loss, a shareholder with a cause of action who suffers loss to the value of his shares may sue in respect of it. 4.The reflective loss principle does not prevent a shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company.5.The principle extends to the case where both the company and the shareholder have a claim for breach of duty or breach of contract which caused the loss.[150] (citations omitted)[150] Mineralogy [No 2] [268] - [270] (Buss P, Murphy and Beech JJ); see also a similar statement of the principles by the Full Court of the Federal Court in Garner v Central Innovation Pty Ltd [2022] FCAFC 64 [122] ‑ [128] (Charlesworth, Stewart and Halley JJ).