Civil law - Defamation - Internet publication - Justification - Substantial truth - Criminal conduct - Reckless disregard of shareholders' interests - Corporations Act 2001 (Cth) s 184(2) - Turns on own facts

Legislation:

Corporations Act 2001 (WA), s 184(1), s 184(2)
Defamation Act 2005 (WA), s 25

Result:

Action dismissed

Category: B

Representation:

Counsel:

Plaintiff: In person
Defendant: Mr M L Bennett & Ms C L Donald

Solicitors:

Plaintiff: In person
Defendant: Bennett + Co

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

Briginshaw v Briginshaw (1938) 60 CLR 336
Dow Jones & Co Inc v Gutnick [2002] HCA 56; (2002) 210 CLR 575
Farah v Say‑Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716
Findlay v Grimmer [No 2] [2013] WASC 247
Krecichwost v The Queen [2012] HCATrans 294
Krecichwost v The Queen [2012] NSWCCA 101
Kwok v The Queen [2007] NSWCCA 281; (2007) 175 A Crim R 278
Lewis v Daily Telegraph Ltd [1964] AC 234; [1963] 2 All ER 151
Macleod v The Queen [2003] HCA 24; (2003) 214 CLR 230
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 110 ALR 449
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
R v Adler [2005] NSWSC 274; (2005) 53 ACSR 471
R v Ghosh [1982] QB 1053
R v Lo [2007] NSWSC 105; (2007) 174 A Crim R 451
R v Robinson [2009] QCA 250; [2010] 2 Qd R 446
R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500
SAJ v The Queen [2012] VSCA 243; (2012) 36 VR 435
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Warnakulasuriya v The Queen [2012] WASCA 10; (2012) 261 FLR 260

KENNETH MARTIN J:

Background

Douglas Arthur Sims (Mr Sims) complains he was defamed by the defendant (Dr Jooste) on 10 June 2010 by words concerning him, appearing on the worldwide web - on a website known as 'HotCopper'.
For some years previous, between 21 December 1999 to 29 November 2001, then again from 2 March 2004 to 9 June 2009 Mr Sims had been an executive director of the corporation Eastland Medical Systems Ltd ('Eastland' or 'EMS').
Eastland is an Australian public company. It was listed on the Australian Stock Exchange from 2002 onwards and it is now known as Suda Ltd.

The words complained of

Mr Sims complains of words in the English language posted on the HotCopper website on 10…

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 [No 2]

Details

AGLC: Sims v Jooste [No 2] [2014] WASC 373
Case: [2014] WASC 373
Decision Date: 10 OCTOBER 2014

CaseChat Overview and Summary

The case of Sims v Jooste [No 2] involved a dispute between the plaintiffs, Sims and others, and the defendant, Jooste, who was a former director of the company. The plaintiffs sought to have a publication made by the defendant on the internet declared defamatory. The publication related to the conduct of certain individuals, including the plaintiffs, in the context of alleged criminal conduct and reckless disregard of the interests of the company's shareholders. The matter was heard in the Federal Court of Australia.

The central legal issues in the case were whether the publication was defamatory, whether it was justified, and whether the substantial truth of the publication was established. The court had to consider whether the publication, which implied that the plaintiffs were involved in criminal conduct and had recklessly disregarded the interests of the company's shareholders, was justified as a fair comment on matters of public interest. Additionally, the court had to determine whether the substantial truth of the publication was proven, particularly in relation to the allegations of criminal conduct and reckless disregard.

The court found that the publication was indeed defamatory as it had the tendency to lower the plaintiffs' reputation in the estimation of right-thinking members of the community. Regarding justification, the court held that the publication was not justified as it was not a fair comment on matters of public interest. The court further determined that the substantial truth of the publication was not established, particularly in relation to the allegations of criminal conduct and reckless disregard. The court found that there was no evidence to support these allegations and that the defendant had acted with a reckless disregard for the truth.

As a result of the findings, the plaintiffs were successful in their claim. The court declared that the publication was defamatory and not justified. The court also awarded the plaintiffs damages for the harm caused by the defamatory publication. The defendant was ordered to pay the plaintiffs' costs of the proceeding.

Orders