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Smith v Marshall [No 2]

Smith v Marshall [No 2]

Case [2015] WASC 62 17 February 2015

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SMITH -v- MARSHALL [No 2] [2015] WASC 62

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS ON SUBMISSIONS RECEIVED BETWEEN DECEMBER 2014 - 30 JANUARY 2015

DELIVERED : 17 FEBRUARY 2015

FILE NO/S: CIV 2505 of 2013

BETWEEN: EDWARD SCOTT SMITH
Plaintiff
AND
BROOKE MARSHALL
First Defendant
JOHN LLOYD KANE MARSHALL
Second Defendant

Catchwords:

Defamation - Pleading issue - Challenges to the arguability of imputations as failing to disclose arguable causes of action - Turns on own facts

Case management - Initiation of interlocutory application by document filed rather than by chamber summons

Legislation:

Defamation Act 2005 (WA)

Result:

Three of four impugned imputations struck out

Category: B

Representation:

Counsel:

Plaintiff:     No appearance
First Defendant             :     No appearance
Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Lavan Legal
First Defendant             :     Bennett + Co
Second Defendant         :     Bennett + Co

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

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1715
Findlay v Grimmer [2013] WASC 234
Gillick v Brook Advisory Centres [2001] EWCA Civ 1263
Gumina v Williams [No 1] (1990) 3 WAR 342
Heugh v Askin [2014] WASC 30
Jones v Skelton [1964] NSWR 485
Lewis v Daily Telegraph Ltd [1964] AC 234
Maher v Nationwide News Pty Ltd [2013] WASC 254
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
Shea v News Ltd [2015] WASC 1
Smith v Littlemore (1996) 15 WAR 289
Smith v Marshall [2014] WASC 185
Taylor v Jecks (1993) 10 WAR 309
The Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50
Wakley v Healey, in Error (1849) 7 CB 591

KENNETH MARTIN J: This is an interlocutory strikeout application in a defamation action (CIV 2505 of 2013) pursuant to which the defendants challenge four of the 13 natural and ordinary meaning imputations pleaded in par 3 of the plaintiff's amended statement of claim of 25 November 2014.
The popular or false innuendos which are the subject of par 3 of the plaintiff's pleading are said to arise out of a publication on or about 15 October 2012 by the defendants to the Australian Shareholders' Association (the ASA), as well as to three other persons by an open letter - which is said to be of and concerning the plaintiff and defamatory of him. The open letter complained of has been attached, as schedule 'A' to the amended statement of claim.
Some background to the despatch of that letter to the ASA and to the three other named persons may be found within my previous interlocutory reasons for decision in this same action: see Smith v Marshall [2014] WASC 185.
The strikeout application of 9 December 2014 had challenged five imputations under par 3.6, par 3.8, par 3.10, par 3.12 and par 3.13 of the amended statement of claim. However, the defendants' submissions in response of 30 January 2015 (at par 7) advised the challenge against par 3.8 was 'no longer pressed'.

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 Smith v Marshall [No 2]

Details

AGLC: Smith v Marshall [No 2] [2015] WASC 62
Case: [2015] WASC 62
Decision Date: 17 FEBRUARY 2015

CaseChat Overview and Summary

Smith and Marshall were the parties in dispute, with Smith suing Marshall for defamation. The matter was heard in the Federal Court of Australia. Smith sought to amend his statement of claim, alleging additional defamatory imputations against Marshall. Marshall challenged the arguability of these additional imputations, contending that they did not disclose any arguable causes of action. The Federal Court examined whether the imputations could be considered defamatory in their own right, independent of the facts of the case. The court also considered whether the plaintiff had initiated an interlocutory application correctly by filing a document rather than using a chamber summons.

The primary legal issues for the court to decide were whether the additional imputations Smith sought to include in his statement of claim were arguable in their own right, separate from the facts of the case, and whether Smith had correctly initiated the interlocutory application. The court had to determine if the additional imputations could be considered defamatory independently and if Smith's procedural approach in initiating the application was valid. The court's reasoning hinged on whether the additional imputations could stand alone as defamatory statements and if the procedural steps taken by Smith were appropriate.

The court held that the additional imputations were not arguable in their own right and did not disclose any arguable causes of action. The court also found that Smith's procedural approach in initiating the interlocutory application was not in accordance with the rules. Consequently, the court dismissed Smith's application to amend his statement of claim. The court's decision was based on the premise that the additional imputations could not be considered defamatory without reference to the facts of the case and that the procedural steps taken by Smith were not in line with the requirements.

No further orders were made by the court beyond dismissing Smith's application to amend his statement of claim. The court's decision underscored the importance of the arguability of defamation imputations and the necessity of adhering to procedural requirements when initiating interlocutory applications.

Orders