Shave v West Australian Newspapers Ltd
[2000] WASC 230
•8 SEPTEMBER 2000
SHAVE -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2000] WASC 230
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 230 | |
| Case No: | CIV:1285/2000 | 8 SEPTEMBER 2000 | |
| Coram: | HASLUCK J | 8/09/00 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Application for directions refused | ||
| PDF Version |
| Parties: | DOUGLAS JAMES SHAVE WEST AUSTRALIAN NEWSPAPERS LTD JAMES ANDREW McGINTY |
Catchwords: | Defamation Words held to be capable of conveying a defamatory meaning Appeal against dismissal of striking out application Role of O 63A Exercise of discretion as to whether programming orders should be made pending appeal Reasons for not making programming orders |
Legislation: | Nil |
Case References: | Aqua Vital Australia Ltd & Anor v Swan Television and Radio Broadcasters Pty Ltd & Anor, unreported; SCt of WA; Library No 950417; 9 August 1995 Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552 Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD
First Defendant
JAMES ANDREW McGINTY
Second Defendant
Catchwords:
Defamation - Words held to be capable of conveying a defamatory meaning - Appeal against dismissal of striking out application - Role of O 63A - Exercise of discretion as to whether programming orders should be made pending appeal - Reasons for not making programming orders
Legislation:
Nil
Result:
Application for directions refused
(Page 2)
Representation:
Counsel:
Plaintiff : Mr D M Stone
First Defendant : Ms C Galati
Second Defendant : In person
Solicitors:
Plaintiff : Williams & Hughes
First Defendant : Edwards Wallace
Second Defendant : In person
Case(s) referred to in judgment(s):
Aqua Vital Australia Ltd & Anor v Swan Television and Radio Broadcasters Pty Ltd & Anor, unreported; SCt of WA; Library No 950417; 9 August 1995
Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552
Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79
Case(s) also cited:
Nil
(Page 3)
1 HASLUCK J: I have before me an application by counsel for the plaintiff that directions be given in accordance with his minute of order for directions in the context of a claim for defamation. Broadly described, his minute of order for directions sets out various programming orders which would require the two defendants to the claim to file their defences and then for other interlocutory matters such as the provision of particulars and discovery to take place in the usual way.
2 It is important to understand the way in which the application for directions in these terms arises. The plaintiff advanced a claim in defamation. In due course a statement of claim was filed which set out the terms of a newspaper report published by the first defendant under the heading, Shave Broke Secrecy Rule, this being a reference to the plaintiff, Douglas James Shave.
3 The plaintiff sought to draw out of the words complained of the imputation central to his case which is now reflected in par 7 of the statement of claim. It was pleaded in these terms: that the second words complained of in their natural and ordinary meaning meant and were understood to mean that Mr Shave had committed a criminal offence by breaching the provisions of the Act.
4 An application was made by the defendant to strike out par 7 of the statement of claim and that matter came before me in June. The judgment I delivered on 29 June 2000 canvassed a range of matters including other passages in the words complained of in which there was reference to the notion that Mr Shave might be an accessory after the fact. I eventually concluded, as appears at par 31 of the judgment I handed down on 29 June 2000, that in my view, bearing in mind the statement lying at the heart of the report, it would certainly be open to the ordinary reasonable reader to conclude as a matter of broad impression that notwithstanding the complexities one thing is clear: Mr Shave is an accessory after the fact to a serious breach of the legislation and to that extent at least it can be said that he has committed a criminal offence.
5 In other words, a finding was made that the words complained of as refined and presented in par 7 of the claim were capable of bearing a defamatory meaning and thus the application to strike out failed.
6 It was against this background that the first defendant applied for leave to appeal and prepared a draft notice of appeal. That matter came before me earlier today. In respect of that application I drew upon O 63A r 4 in order to direct that the application for leave to appeal be
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- heard together with the appeal. It follows that, in the manner contemplated by O 63A which deals specifically with appeals from interlocutory orders, the matter of the leave to appeal and the appeal itself will be dealt with by a Full Court comprising two Judges.
7 It is a matter of common knowledge that the rule just mentioned was introduced as a means of providing more expeditious relief in respect of appeals from interlocutory orders. It is in the nature of a special procedure which was introduced by gazettal on 28 October 1996, that is to say, in comparatively recent times.
8 It is against this background - an appeal against the ruling made in respect of an imputation which is central to the plaintiff's claim - that an application is now made by counsel for the plaintiff for directions in the terms I described earlier.
9 Counsel for the first defendant adopts the stance that directions and programming orders of the kind outlined in the plaintiff's minute should not be given at this stage, bearing in mind that if the Appeal Court overturns the ruling previously made then the documents brought into existence pursuant to the minute, such as the defence and reply and other documents, may be affected by any ruling made by the Appeal Court.
10 Counsel for the plaintiff says in answer that the fact that an appeal has been lodged should not be thought either formally or in practical terms to stay or impede the progress of the action.
11 In that regard counsel points particularly to O 63A r 6 which provides:
"Order 63 applies in respect of appeals to which this Order applies unless a contrary intention appears from this Order."
12 When one goes, as one is encouraged to do by that order, to O 63, one must then turn to O 63 r 15. That rule provides:
"15 (1) Except so far as the Full Court or a Judge may direct -
(a) an appeal shall not operate as a stay of execution or of proceedings under the decision of the court below."
13 Putting those two things together, counsel for the plaintiff argues that as a ruling has been made which upholds the validity of the claim as first presented, there must be an assumption that the action will continue to follow its normal course. He also makes the point that if what the
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- defendant is seeking to do in fact is to stay the matter, then there should be a formal application for a stay supported by an affidavit.
14 When I weigh up what has been put to me, I take account of the fact that O 63 r 15 does not distinguish between a final judgment and an interlocutory order. Nonetheless, most of the case law relating to the question of a stay is predicated upon how the court should proceed where a final judgment has been obtained. Indeed, the two cases referred to me by counsel for the plaintiff canvass authorities which are directed principally to that point.
15 For example, Hamersley Iron Pty Ltd v Lovell (No 2) (1998) 20 WAR 79 is concerned with the question of whether a stay should be granted in circumstances where there was an application to the High Court for special leave to appeal. That case is authority for the proposition that a stay will only be granted where it is necessary to preserve the subject matter of the litigation or where refusal would create practical difficulties in the relief available to the High Court or where there is a real risk that it will not be possible for a successful appellant to be restored substantially to his former position.
16 In the present case, however, I consider that in the context of a defamation action special considerations arise. The way in which the imputation upon which the success of such an action depends is critical. Indeed, this view of the matter is affirmed in the case referred to me by counsel for the first defendant, Aqua Vital Australia Ltd & Anor v Swan Television and Radio Broadcasters Pty Ltd & Anor, unreported; SCt of WA; Library No 950417; 9 August 1995. In that case the learned judge said that the pleadings in defamation actions, and in particular the pleading of innuendos, is critical. It is important that innuendos be pleaded with precision.
17 A preliminary question arises as to whether the controversy before me should be regarded as concerning an application for a stay and whether a stay should be granted or not. However, in my view the matter before me is the question of whether a discretion should be exercised to give directions that are appropriate in the circumstances of this case. I therefore do not see it as being an application for a stay.
18 The general principle governing the grant of directions in the context of case management (being now the prevailing credo under the Supreme Court Rules) is that directions are to be made which will lead to the efficient and timely disposal of proceedings. In regard to the matter I am
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- now discussing I put the emphasis on the word "efficient". It seems to me that when one comes to exercise a discretion as to whether certain directions are to be given, the court is entitled to look at the question of whether the directions proposed will truly lead to the efficient and timely disposal of the proceedings. One is also entitled to take account of the other avenues of dealing with the matter before the court.
19 This brings me back to O 63A r 4 which, as I say, was introduced in comparatively recent times to deal specifically with the question of appeals from interlocutory orders of Judges and Masters. That it has a specific role to play is recognised in Seaman's Civil Procedure where the learned author says at par 63A.0.1:
"The object of this Order is to have interlocutory appeals and related applications disposed of in the shortest possible time in order to minimise delay in getting the substantive litigation to trial."
20 He cites Eaton Developments Pty Ltd v NTC Pty Ltd (1998) 19 WAR 552 at 557. The learned author goes on to say:
"Under the former practice very considerable delays were occasioned to the progress of cases by appeals against interlocutory decisions. This Order creates a simplified and speedier process for appeals from the interlocutory orders and judgments of judges and masters which will apply unless a direction is made that an appeal shall proceed under O 63."
21 It follows from my earlier remarks that I have already made a direction that the appeal in this matter is to proceed under O 63A rather than O 63. I also note, in construing the weight to be given to the rule relied upon by counsel for the plaintiff, namely O 63 r 6, that although the rule directs attention back to O 63, that direction is only to apply unless a contrary intention appears from the order in question.
22 When I consider the reasoning underlying the observations made in Seaman's Civil Procedure, it seems to me that O 63A is intended to constitute a special avenue whereby interlocutory orders may be dealt with expeditiously by a Full Court comprised of two Judges. The expectation is, and indeed it seems to be the case, that those appeals will be brought on in a much shorter space of time.
23 Thus when I put those various matters together, it seems to me that the rules as amended in 1996 are contemplating that where there is to be
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- an appeal from an interlocutory order, then the matter will be afforded the facility offered by O 63A, and the presence of that rule may have a bearing upon any directions which are to be made while the appeal is still current.
24 This brings me to the significant features of the present case. If the appeal proceeds and the appellant has some measure of success, then that may mean that the claim is brought to a state of finality in that the Full Court might rule that the paragraph in question, which is central to the plaintiff's case, be struck out without leave to replead. In that event if the minute of order for directions had been put in place, the defendants would have been put both to the time and expense of filing pleadings and taking other interlocutory steps which prove to be nugatory. Alternatively, if on the appeal the striking out application succeeds only to the extent of the plaintiff being allowed to replead, that may nonetheless require that a new set of pleadings be brought into existence as a consequence of the repleading.
25 In the case of some forms of civil litigation that may not matter. In the case of a defamation plea, however, the special feature of such litigation is that the imputation must be pleaded with precision, and this may have a bearing upon the subsequent interlocutory steps and the way in which instructions and information are obtained from witnesses and from the parties. It seems to me that O 63A has partly been brought into existence to try and alleviate the inconvenience that may be caused if parties are obliged to proceed with the interlocutory steps only to find that there is some revision of what is required as a consequence of the order made by the Appeal Court.
26 In the circumstances of the present case I also take account of the fact that, consistently with my earlier description of the case, there may be important shades of meaning to be regarded as to whether the allegation is of someone having committed a criminal offence or of simply being an accessory after the fact. For all these reasons, it seems to me that when I bring a discretion to bear as to whether directions should be made relevant to the efficient and timely disposal of the proceedings, it may, in fact, turn out to be inefficient to endeavour to make programming orders of the kind contended for by counsel for the plaintiff. There is a prospect that what is done may subsequently have to be modified to a substantial degree as a consequence of orders made by the Appeal Court.
27 Thus, without treating the matter as raising the issue of a stay, in the exercise of my discretion as to whether directions of the kind proposed
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- should be made, I conclude that I should not make the directions proposed and that the matter should await the outcome of a ruling by the Appeal Court. I add to what I have said so far, as one of the considerations I took up with counsel during the course of the debate, that parties to litigation might view the operation of the Supreme Court Rules and the processes of the court with increasing scepticism if they are obliged to set their hands to preparing pleadings and taking other interlocutory steps only to have all that work undone and be redone at some later stage as a consequence of the ruling of an Appeal Court.
28 It seems to me that there is an important distinction between what steps should be taken after the handing down of an interlocutory judgment as opposed to the position when one is seeking to enforce a final judgment. I reiterate that in my view O 63A has been introduced to address precisely that issue. This confirms the determination I have come to that directions of the kind contended for in the special circumstances of this case should not be made.
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