Van Lieshout v Public Advocate WA - [2013] WADC 92

VAN LIESHOUT -v- PUBLIC ADVOCATE WA [2013] WADC 92

Last Update: 26/06/2013

VAN LIESHOUT -v- PUBLIC ADVOCATE WA [2013] WADC 92
Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2013] WADC 92
Case No:	CIVO:199/2012	Heard:	20 MAY 2013
Coram:	FENBURY DCJ	Delivered:	12/06/2013
Location:	PERTH	Supplementary Decision:
No of Pages:	8	Judgment Part:	1 of 1
Result:	Judgment for the defendant
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	TERESA VAN LIESHOUT PUBLIC ADVOCATE WA
Catchwords:	Civil procedure Strike out and summary judgment application Turns on own facts
Legislation:	Defamation Act 2005 s 27 Public Interest Disclosure Act 2003 Restraining Orders Act 1997 s 25
Case References:	Seven Network Ltd v News Ltd (4) (2005) 214 ALR 686

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : VAN LIESHOUT -v- PUBLIC ADVOCATE WA [2013] WADC 92 CORAM : FENBURY DCJ HEARD : 20 MAY 2013 DELIVERED : 12 JUNE 2013 FILE NO/S : CIVO 199 of 2012 BETWEEN : TERESA VAN LIESHOUT

Plaintiff

AND

PUBLIC ADVOCATE WA

Defendant

Catchwords:

Civil procedure - Strike out and summary judgment application - Turns on own facts

Legislation:

Defamation Act 2005 s 27
Public Interest Disclosure Act 2003
Restraining Orders Act 1997 s 25

Result:

Judgment for the defendant

(Page 2)

Representation:

Counsel:

Plaintiff : No appearance

Defendant : Ms R Young (instructed by Paxman & Paxman)

Solicitors:

Plaintiff : Not applicable

Defendant : State Solicitor for Western Australia

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

Seven Network Ltd v News Ltd (4) (2005) 214 ALR 686

(Page 3)

1 FENBURY DCJ: The Public Advocate has filed a chambers summons dated 2 April 2013 seeking a number of orders relating to an originating summons filed by Ms van Lieshout dated 19 November 2012.

2 The orders sought were that:

(1) The defendant have leave to bring a strike out application and a summary judgment application.

(2) The originating summons dated 19 November 2012 be struck out pursuant to O 20 r 19(1) of the Rules of the Supreme Court 1971 (WA) on the grounds that the claim:

(a) discloses no reasonable cause of action; or

(b) is scandalous, frivolous or vexatious

(3) Alternatively, the

originating summons

dated 19 November 2012 be summarily dismissed pursuant to O 16 r 1 of the

Rules of the Supreme Court 1971

(WA) on the grounds that:

(a) the claim is frivolous or vexatious; or

(b) the action should be disposed of summarily and without pleadings

(4) The plaintiff's claim be dismissed.

(5) The plaintiff pay the defendant's cost of the action

3 The hearing of the chambers summons was set down for 10.30 am on Monday 20 May 2013, as a special appointment.

4 Ms van Lieshout failed to appear at the hearing.

5 The court was advised by counsel for the Public Advocate that Ms van Lieshout knew of her hearing date and had left a message at the Public Advocate's reception on the morning of the hearing that she…

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: [2013] WADC 92
Decision Date

CaseChat Overview and Summary

The case of Van Lieshout v Public Advocate WA was brought by Teresa Van Lieshout against the Public Advocate of Western Australia. Ms Van Lieshout sought damages for defamation, assault, and other claims stemming from the application for a violence restraining order (VRO) against her brother, David Van Lieshout. The Public Advocate sought to strike out Ms Van Lieshout's claim and for it to be dismissed as summary judgment. The District Court of Western Australia heard the matter and delivered its decision on 12 June 2013.

The legal issues before the court were whether Ms Van Lieshout's claim disclosed a reasonable cause of action and whether the court should exercise its discretion to strike out the claim and order summary judgment in favour of the Public Advocate. The court needed to consider the nature of the claims, the applicable laws, and the relevant rules of court.

The court found that Ms Van Lieshout's claim for defamation was barred by the doctrine of absolute privilege, as it arose from statements made in the course of proceedings before the Magistrates Court. Furthermore, Ms Van Lieshout was not the appropriate party to bring claims on behalf of her brother, who was under guardianship. The court also held that the claims of assault, cruelty, and victimisation disclosed no reasonable cause of action. The court concluded that the circumstances justified granting the Public Advocate's application for summary judgment, as there was no real question to be tried.

The court ordered that Ms Van Lieshout's claim be struck out and dismissed, and that she pay the Public Advocate's costs of the action.

Orders