WALSH -v- BENNETTS [2014] WASC 453

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WASC 453
Case No:	CIV:2321/2013	Heard:	3 SEPTEMBER 2014
Coram:	KENNETH MARTIN J	Delivered:	3/12/14
No of pages:	34	Judgment Part:	1 of 1
Result:	Leave to amend defence refused
Category:	B
PDF Version

Parties:	SHARON GWEN WALSH DARREN BENNETTS
Catchwords:	Defamation Pleadings Leave to file substituted defence Justification Adequacy of plea Evaluation of justification particulars Plea of contextual truth Function of councillor Local Government Act 1995 (WA) s 9.56(2)
Legislation:	Defamation Act 2005 (WA), s 25, s 26, s 30 Local Government Act 1995 (WA), s 9.56
Case References:	Barnes v Addy (1865) LR 9 Ch App 244 Con Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Foley v Lord Ashcroft [2012] EWCA Civ 423; [2012] EMLR 25 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Hickinbotham v Leach (1842) 10 M&W 361; 152 ER 510 Ives v The State of Western Australia [No 8] [2013] WASC 277 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365 Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Waterhouse v Hickie [1981] Aust Torts Reports ¶81-437 (62,486) Wookey v Quigley [2009] WASC 284 Wootton v Sievier [1913] 3 KB 499 Zierenberg v Labouchere [1893] 2 QB 183

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : WALSH -v- BENNETTS [2014] WASC 453 CORAM : KENNETH MARTIN J HEARD : 3 SEPTEMBER 2014 DELIVERED : 3 DECEMBER 2014 FILE NO/S : CIV 2321 of 2013 BETWEEN : SHARON GWEN WALSH

Plaintiff

AND

DARREN BENNETTS

Defendant

Catchwords:

Defamation - Pleadings - Leave to file substituted defence - Justification - Adequacy of plea - Evaluation of justification particulars - Plea of contextual truth - Function of councillor - Local Government Act 1995 (WA) s 9.56(2)

Legislation:

Defamation Act 2005 (WA), s 25, s 26, s 30

Local Government Act 1995 (WA), s 9.56

Result:

Leave to amend defence refused

Category: B

Representation:

Counsel:

Plaintiff : Mr C Chenu

Defendant : Mr M C Goldblatt

Solicitors:

Plaintiff : Bennett + Co

Defendant : Kitto & Kitto

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

Barnes v Addy (1865) LR 9 Ch App 244

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: [2014] WASC 453
Decision Date: 3 DECEMBER 2014

CaseChat Overview and Summary

In the case of Walsh v Bennetts, the plaintiff, a former councillor, brought an action for defamation against the defendant, a current councillor. The dispute centred around statements made by the defendant in a public meeting, which were alleged to have damaged the plaintiff's reputation. The matter was heard in the Supreme Court of Western Australia. The legal issues before the court involved the adequacy of the defendant's plea of justification and whether leave should be granted to file a substituted defence, including a plea of contextual truth.

The court examined the adequacy of the plea of justification and the evaluation of the particulars provided. The plaintiff argued that the defendant's plea was insufficient, while the defendant sought leave to amend their defence to include a plea of contextual truth, citing the function of a councillor under the Local Government Act 1995 (WA) s 9.56(2). The court considered the requirements for leave to amend pleadings and whether the proposed amendment would be likely to succeed. Ultimately, the court found that the proposed amendment did not sufficiently address the deficiencies in the original plea of justification and denied the defendant's application for leave to file a substituted defence.

The court's reasoning hinged on the inadequacy of the defendant's original plea and the lack of merit in the proposed amendment. The court held that the defendant's defence did not adequately address the defamatory nature of the statements, and the proposed plea of contextual truth did not sufficiently mitigate the harm caused. As a result, the court refused the defendant leave to amend their defence.

Orders

Orders of the court

Leave to amend defence refused

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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