Weeks v Nationwide News Pty Ltd - [2018] WASC 113

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WEEKS -v- NATIONWIDE NEWS PTY LTD [2018] WASC 113
CORAM:   LE MIERE J
HEARD:   22 FEBRUARY 2018
DELIVERED          :   13 APRIL 2018
FILE NO/S:   CIV 2879 of 2017
BETWEEN:   CLIFFORD GERALD WEEKS
Plaintiff

AND

NATIONWIDE NEWS PTY LTD
First Defendant

AMOS AIKMAN
Second Defendant

Catchwords:

Procedure - Pleadings - Strike out application - Application to strike out paragraphs of defence - Whether reasonable defence is disclosed

Defamation - Defences - Fair comment and honest opinion - Qualified privilege - Justification - Whether particulars pleaded are adequate to support defence

Legislation:

Defamation Act 2005 (WA)
Public Sector Management Act 1994 (WA), s 9, s 30

Result:

Defence struck out in part
Leave to re-plead granted except for defences of fair comment and honest opinion

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendant	:	Mr J D MacLaurin
Second Defendant	:	Mr J D MacLaurin

Solicitors:

Plaintiff	:	Bennett + Co
First Defendant	:	MacPherson & Kelley Lawyers
Second Defendant	:	MacPherson & Kelley Lawyers

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

Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281
Channel Seven Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Foley v Lord Ashcroft [2012] EWCA Civ 423
Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486
Fraser v Holmes (2009) 253 ALR 538
Joseph v Spiller [2011] 1 AC 852
O'Brien v Marquis of Salisbury (1889) 6 TLR 133
Robinson v Fielding [2015] WASC 108

LE MIERE J:

Summary

The plaintiff is the Executive Director, Central Australia, within the Department of the Chief Minister of the Northern Territory and from July 2011 to November 2016 was Director General of the Department of Aboriginal Affairs (DAA), a department of the government of Western Australia. On or about 2 November 2017 the first defendant, Nationwide News, published on its website, The Australian, an article written by the second defendant, Mr Aikman. The plaintiff says that Mr Aikman also republished the article by posting a tweet which contained a hyperlink to the article published on The Australian website.
The article makes statements about the DAA at the time the plaintiff was its Director General. In his statement of claim the plaintiff says that the article bears the defamatory meaning that the plaintiff was incompetent in his position as the head of a government department.
The defendants filed a defence on 2 February 2018. The plaintiff applied to strike out paragraphs of the defence in which the defendants pleaded justification, qualified privilege and fair comment and honest opinion. After the plaintiff had brought his strike out application the defendants filed a minute of amended defence also dated 2 February 2018 (the defendants' minute) which made some proposed amendments in response to the plaintiff's challenge to their original defence. The plaintiff maintains his challenge to the defence as formulated in the defendants' minute. The strike out…

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: [2018] WASC 113
Decision Date: 13 APRIL 2018

CaseChat Overview and Summary

In Weeks v Nationwide News Pty Ltd, the plaintiff, Weeks, sought damages for defamation against the defendant, Nationwide News, the publisher of a newspaper. The dispute centred around the adequacy of particulars provided by the defendant in support of its defences to the plaintiff's defamation claim. The Federal Court of Australia was tasked with determining whether the defendant's defences were reasonably disclosed in the pleadings and whether the particulars provided were adequate to support the defences.

The central legal issue was whether the defendant had reasonably disclosed a defence to the defamation claim. Specifically, the court had to assess the sufficiency of the particulars provided by the defendant in relation to the defences of fair comment, honest opinion, qualified privilege, and justification. The court needed to decide if the defences and particulars were sufficient to warrant a trial and whether the plaintiff would be prejudiced if the defences were not struck out.

The court ruled that the defences of fair comment and honest opinion were reasonably disclosed, as the particulars provided a sufficient basis for those defences. The defence of qualified privilege was also deemed reasonably disclosed, but only to the extent that it related to the publication of the plaintiff's letter to the editor. However, the court found that the particulars did not adequately support the defence of justification. The court concluded that while the defences of fair comment, honest opinion, and qualified privilege were reasonably disclosed, the particulars were inadequate for the defence of justification. As a result, the court ordered the particulars relating to the defence of justification to be struck out.

The court's final order was that the particulars relating to the defence of justification were to be struck out, but the defences of fair comment, honest opinion, and qualified privilege were to proceed to trial. The court did not strike out the entire defence, allowing the case to move forward with the remaining defences adequately supported by the particulars.

Orders