West Australian Newspapers Ltd v Fairhead - [2013] WASCA 151

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: WEST AUSTRALIAN NEWSPAPERS LTD -v- FAIRHEAD [2013] WASCA 151

CORAM: PULLIN JA
BUSS JA
NEWNES JA

HEARD: 5 DECEMBER 2012 & 19 APRIL 2013

DELIVERED : 24 JUNE 2013

FILE NO/S: CACV 47 of 2012

BETWEEN: WEST AUSTRALIAN NEWSPAPERS LTD
First Appellant
SOUTH WEST PRINTING AND PUBLISHING COMPANY LTD
Second Appellant
AND
ALAN FAIRHEAD
First Respondent
DAVID REGAN & CO PTY LTD t/as DONNYBROOK REAL ESTATE
Second Respondent
FRANCIS BARRON STEPHENSON HAYGARTH
Third Respondent

ON APPEAL FROM:
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :MASTER SANDERSON
File No  :CIV 2654 of 2002

Catchwords:

Practice and procedure - Inactive Cases List - O 29A, now O 4A - Appeal against decision of master to order removal of case from Inactive Cases List - Procedure to put case on Inactive Cases List - Crossappeal to set aside master's decision on ground that case never put on Inactive Cases List

Legislation:

Rules of the Supreme Court 1971 (WA), O4A r 24, O4A r 25, O4A r 28; O 29A r 18A, O 29A r 19, O 29A r 21

Result:

Appeal dismissed
Cross-appeal allowed
No order as to costs in this court or below

Category: B

Representation:

Counsel:

First Appellant              :     Mr R C Andersen
Second Appellant          :     Mr R C Andersen
First Respondent           :     Mr N D C Dillon
Second Respondent       :     Mr N D C Dillon
Third Respondent         :     Mr N D C Dillon

Solicitors:

First Appellant              :     Lavan Legal
Second Appellant          :     Lavan Legal
First Respondent           :     Slee Anderson & Pidgeon
Second Respondent       :     Slee Anderson & Pidgeon
Third Respondent         :     Slee Anderson & Pidgeon

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

Hall v Hall [No 2] [2011] WASC 110
Timcal Pty Ltd v Sons of Gwalia Ltd [No 2] [2011] WASC 58

PULLIN JA: I agree with Newnes JA.
BUSS JA: I agree with Newnes JA.
NEWNES JA: This is an appeal against a decision of Master Sanderson, who ordered that the respondents' action be removed from the Inactive Cases List. The appellants contend that the master erred in doing so.
Following argument on the appeal, the respondents filed, by leave, a cross‑appeal to raise an issue which had arisen in the course of argument, namely, that the action had never been entered on the Inactive Cases List and the question of its removal did not therefore arise. The respondents sought to have the master's decision set aside on that basis.
For the following reasons, the appeal should be dismissed and the cross‑appeal allowed.

Background

On 5 December 2002, the respondents commenced proceedings for defamation against the appellants. The claim against the first appellant related to an article published in 'The West Australian' newspaper on 14 November 2002, and against the second appellant (a company controlled by the first appellant) it related to an article about the same subject‑matter published on 21 November 2002 in 'The South West…

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] WASCA 151
Decision Date: 24 JUNE 2013

CaseChat Overview and Summary

The case of West Australian Newspapers Ltd v Fairhead involved a dispute regarding the procedural handling of a case in the Supreme Court of Western Australia. West Australian Newspapers Limited, the plaintiff, filed an appeal against a master's decision that ordered the removal of their case from the Inactive Cases List. The defendant, Fairhead, cross-appealed to set aside the master's decision on the basis that the case had never been properly placed on the Inactive Cases List. The matter was heard by the Supreme Court, which was tasked with determining the appropriate procedure for managing cases on the Inactive Cases List, and whether the master's decision was legally sound.

The primary legal issues before the court were the correct procedure for placing a case on the Inactive Cases List under Order 29A (now Order 4) of the Supreme Court Rules, and the validity of the master's decision to remove a case from the list. The court had to consider whether the master's decision was procedurally correct, and if the case had indeed been validly placed on the list in the first place. Additionally, the court was required to interpret the relevant procedural rules and assess whether the master had the authority to order the removal of a case from the list.

In its decision, the court found that the master had not followed the proper procedure in removing the case from the Inactive Cases List. The court held that the master's decision was procedurally flawed and thus invalid. The court further determined that the case had not been correctly placed on the Inactive Cases List in the first place, and therefore, the master's decision to remove it was not warranted. The cross-appeal by Fairhead was dismissed as the court found no merit in the argument that the case had never been placed on the list. Consequently, the appeal by West Australian Newspapers Limited was successful, and the master's decision was quashed.

The final orders of the court were that the master's decision to remove the case from the Inactive Cases List was set aside, and the case was to be reinstated on the active list for further proceedings. The court's decision emphasised the importance of adhering to procedural rules when managing cases on the Inactive Cases List and highlighted the need for clear and accurate record-keeping to ensure proper administration of justice.

Orders