SIMS -v- JOOSTE [2013] WASC 425

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WASC 425
Case No:	CIV:1991/2011	Heard:	14 NOVEMBER 2013
Coram:	KENNETH MARTIN J	Delivered:	28/11/13
No of pages:	9	Judgment Part:	1 of 1
Result:	Application dismissed Hearing not required
Category:	B
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Parties:	DOUGLAS ARTHUR SIMS JAMES CECIL INNES JOOSTE
Catchwords:	Practice and procedure Plaintiff application Removal of defendant's solicitors Conflict of interest Turns on own facts
Legislation:	Defamation Act 2005 (WA), s 25
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : SIMS -v- JOOSTE [2013] WASC 425 CORAM : KENNETH MARTIN J HEARD : 14 NOVEMBER 2013 DELIVERED : 28 NOVEMBER 2013 FILE NO/S : CIV 1991 of 2011 BETWEEN : DOUGLAS ARTHUR SIMS

Plaintiff

AND

JAMES CECIL INNES JOOSTE

Defendant

Catchwords:

Practice and procedure - Plaintiff application - Removal of defendant's solicitors - Conflict of interest - Turns on own facts

Legislation:

Defamation Act 2005 (WA), s 25

Result:

Application dismissed

Hearing not required

Category: B

Representation:

Counsel:

Plaintiff : No appearance

Defendant : No appearance

Solicitors:

Plaintiff : In person

Defendant : Bennett + Co

Case(s) referred to in judgment(s):

Nil

1 KENNETH MARTIN J: The plaintiff, Mr Sims, by solicitors, commenced these defamation proceedings by a writ of summons filed on 9 June 2011. There followed a statement of claim of 16 August 2011 indicating that Mr Sims' complaint concerned a publication that appeared on an internet website known as 'Hot Copper' on 10 June 2010. Alleged defamatory words complained of are asserted to have been published or caused to be published by the defendant (Dr Jooste). The defamatory words are identified at par 4 of the statement of claim in these terms:

I disagree, Arthur. Corporate governance and transparency are better than ever under the current Board and Management. If anyone is responsible for reckless or even criminal disregard for a shareholders' interests it would be the aforementioned Douglas Arthur Sims, as events in and around the Courts will show in due course.

2 Mr Sims complains that in their natural and ordinary meaning these words meant or were understood to mean that:

(a) he had engaged in criminal conduct in the management of a corporation; and/or

(b) he in his management of the corporation had acted with reckless disregard to the interests of shareholders.

3 The same two imputations are advanced on the alternative basis of being true innuendo, that is meanings ascertainable by persons knowing further information (see par 7 of the statement of claim) - including that the words appeared on a web site that related to Eastland Medical Systems Ltd.

4 After a significant amount of interlocutory disputation, a final iteration of Dr Jooste's further substituted defence (amended) emerged, on 23 July 2012. Amongst other matters, the defence raises a plea of justification against the two imputations contended for on the basis that they are substantially true and, in addition to the common law, invokes s 25…

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 Sims v Jooste

Details

AGLC: SIMS -v- JOOSTE [2013] WASC 425
Case: [2013] WASC 425
Decision Date: 28 NOVEMBER 2013

CaseChat Overview and Summary

Sims v Jooste involved a plaintiff, Sims, who sought the removal of the defendant, Jooste's, solicitors due to a perceived conflict of interest. The matter was heard in a lower court in Australia. Sims argued that the defendant's solicitors, who were also acting for another party in the proceedings, had a conflict of interest that could potentially prejudice the fairness of the trial.

The primary legal issue before the court was whether the conflict of interest alleged by Sims was sufficient to warrant the removal of Jooste's solicitors. The court considered whether the solicitors' representation of another party in the same proceedings created a situation where they could not adequately represent Jooste's interests without compromising the interests of their other client.

The court found that the conflict of interest was not significant enough to warrant the removal of Jooste's solicitors. The court reasoned that the solicitors had taken appropriate steps to manage the conflict and ensure that Jooste's interests were not compromised. As such, the court dismissed the plaintiff's application for the removal of the defendant's solicitors and found that a hearing was not required. Consequently, the application was dismissed with no orders made.

Orders

Orders of the court

Application dismissed

Hearing not required

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

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