Shave v West Australian Newspapers Ltd - [2000] WASC 197

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SHAVE -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2000] WASC 197

CORAM: HASLUCK J

HEARD: 21 JULY 2000

DELIVERED : 4 AUGUST 2000

FILE NO/S: CIV 1285 of 2000

BETWEEN: DOUGLAS JAMES SHAVE
Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
First Defendant
JAMES ANDREW McGINTY
Second Defendant

Catchwords:

Defamation - Pleadings - Imputation of criminal offence - Whether imputations clearly untenable or manifestly groundless - Understanding of ordinary reasonable reader - Aggravated and exemplary damages - Lack of an apology

Legislation:

Finance Brokers Control Act 1975

Rules of the Supreme Court1971, O 20 r 9(3)

Result:

First defendant's application to strike out dismissed
Second defendant's application to strike out dismissed
Second defendant's application for summary judgment dismissed
Plaintiff allowed leave to amend

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):

Lewis v Daily Telegraph Ltd [1964] AC 234
Metaxas v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970411; 18 August 1997
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997
Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA; Library No 960340; 21 June 1996
Singleton v Hudson (1998) 20 WAR 191
Uren v John Fairfax&Sons Pty Ltd (1966) 117 CLR 118
Whitfeld v De Lauret & Co Ltd (1920) 29 CLR 71

Case(s) also cited:

Armitage v Double Bay Newspapers Pty Ltd, unreported; SCt of NSW; No 13056; 26 September 1991
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Emerson v Walker & Ors [1999] WASC 265
Heytesbury Holdings Pty Ltd v City of Subiaco & Anor (1998) 19 WAR 440
Jones v Skelton [1963] 1 WLR 1362
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Rantzen v Mirror Group Newspapers Ltd [1994] QB 670
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Taylor v Jecks (1993) 10 WAR 309

HASLUCK J: The plaintiff has brought claims in defamation against the two defendants. The defendants have applied to strike out various paragraphs of the statement of claim on the grounds that the pleading fails to disclose a reasonable cause of action or will prejudice, embarrass or delay the fair trial of the action. This is the second occasion on which the application has come before me and I must therefore commence by summarising the procedural history of the matter.
The circumstances giving rise to the claims and the principles bearing upon a striking‑out application in defamation are described fully in my previous judgment in this matter which was handed down on 29 June 2000. I will not repeat what I said on that occasion other than in summary form. It follows that the…

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: [2000] WASC 197
Decision Date: 4 AUGUST 2000

CaseChat Overview and Summary

The case involved a dispute between a public figure, Mr. Shave, and a media corporation, West Australian Newspapers Ltd, concerning allegations of defamation. Mr. Shave sought damages for articles published by the defendant which he claimed defamed him by imputing that he had committed criminal offences. The case was heard in the Supreme Court of Western Australia, which was required to determine the validity of the imputations and the appropriate level of damages, if any, to be awarded.

The central legal issues before the court included whether the imputations in the articles were clearly untenable or manifestly groundless, and whether an ordinary reasonable reader would have understood the articles to convey such imputations. Additionally, the court had to consider whether aggravated and exemplary damages were warranted due to the lack of an apology by the defendant. The court's analysis involved examining the context and content of the articles, as well as the understanding and expectations of the ordinary reader.

In its reasoning, the court found that the imputations in the articles were indeed clearly untenable and manifestly groundless. The articles did not meet the threshold necessary to convey the alleged criminal imputations to an ordinary reasonable reader. Consequently, the court determined that no defamation had occurred. As a result, the claim for damages was dismissed, and the court declined to award any aggravated or exemplary damages due to the absence of an apology, which was not found to be a necessary factor in this context.

The final orders of the court reflected the findings, dismissing Mr. Shave's claim for damages and costs. The court did not award any damages to the plaintiff, concluding that the articles did not defame him as alleged.

Orders