West Australian Newspapers Ltd v Shave - [2001] WASCA 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: WEST AUSTRALIAN NEWSPAPERS LTD -v- SHAVE [2001] WASCA 216

CORAM: OWEN J
MILLER J

HEARD: 12 MARCH 2001

DELIVERED : 25 JULY 2001

FILE NO/S: FUL 125 of 2000

BETWEEN: WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Applicant
AND
DOUGLAS JAMES SHAVE
Respondent

Catchwords:

Defamation - Pleadings - Imputations - Imputation of commission of criminal offence - Turns on own facts

Legislation:

Nil

Result:

Leave to appeal granted
Appeal dismissed

Representation:

Counsel:

Applicant: Mr W S Martin QC & Mr J F Raftos
Respondent: Mr D M Stone

Solicitors:

Applicant: Edwards Wallace
Respondent: Williams & Hughes

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

Armitage v Double Bay Newspapers Pty Ltd, unreported, SCt of NSW (Hunt J); No 13056 of 1991; 26 September 1991
Foord v John Fairfax & Sons Ltd, unreported, SCt of NSW (Hunt J); CLD 20450 of 1986; 27 February 1987
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Nationwide News Pty Ltd v Abboud, unreported; SCt of WA (FCt); Library No 960710; 12 September 1996
Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10
Shave v West Australian Newspapers Ltd and Anor (No 2) [2000] WASC 197
Shave v West Australian Newspapers Ltd and Anor [2000] WASC 172
Singleton v Hudson (1998) 20 WAR 191

Case(s) also cited:

Aqua Vital Australia Ltd & Anor v Swan Television and Radio Broadcasters Pty Ltd & Anor, unreported; FCt SCt of WA; Library No 950417; 9 August 1995
Emerson v Walker & Ors [1999] WASC 265
Farquar v Bottom [1980] 2 NSWLR 380
Morosi v Radio Station 2GB [1980] 2 NSWLR 418
Savigne v News Ltd [1932] SASR 240
Smith v Littlemore (1996) 15 WAR 289

JUDGMENT OF THE COURT: This is an application for leave to appeal from the decision of a Judge dismissing the applicant's application to strike out the statement of claim or a paragraph of the statement of claim in a defamation action. It also constitutes the substantive hearing of the appeal.

Background

The respondent was a member of the State Parliament and a Minister of the Crown having responsibility for the administration of the government department that oversees the regulation of the finance broking industry. The applicant is the publisher of a daily newspaper. One Jim McGinty was an opposition member of State Parliament. On 17 February 2000 McGinty wrote a letter, addressed and delivered to the Commissioner of Police, which is in these terms:
"I wish to complain about the conduct of Doug Shave MLA.
On 15th February 1999 Mr Shave delivered to the West Australian Newspaper a letter in which Mr Shave named Dominic Casella as a person who had made a complaint to the Finance Brokers Supervisory Board.
Mr Shave is the Minister of Fair Trading.
Mr Shave has breached…

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: [2001] WASCA 216
Decision Date: 25 JULY 2001

CaseChat Overview and Summary

The applicant, West Australian Newspapers Ltd, sought leave to appeal against a decision dismissing its application to strike out the respondent's statement of claim or a paragraph of the statement of claim in a defamation action. The respondent, Doug Shave, was a member of the State Parliament and Minister of Fair Trading. The applicant published an article that suggested Minister Shave had breached the Finance Brokers Control Act by revealing the identity of a complainant. The respondent filed a defamation action against the applicant, which sought to strike out the statement of claim. The trial judge dismissed the application, leading to the applicant's appeal.

The central legal issue in this appeal was whether the applicant's application to strike out the statement of claim or a paragraph of the statement of claim was properly dismissed. A secondary issue was whether the court should reconsider the previously accepted wisdom on pleading imputations of suspicion in light of Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10. The court also needed to determine if the applicant should reformulate its draft notice of appeal to indicate precisely the issues that related to paragraph 7.2 of the amended statement of claim.

The court held that the dismissal of the applicant's application to strike out the statement of claim was not an error. The court found that the applicant's arguments did not sufficiently address the merits of the respondent's defamation claim. Regarding the secondary issue, the court noted that counsel for the applicant had raised an interesting question about reconsidering the previously accepted wisdom on pleading imputations of suspicion. However, the court decided to stand the matter over for 48 hours to allow the parties to advance any additional submissions they thought were appropriate. If the applicant wished to pursue the challenge to paragraph 7.2 of the amended statement of claim, it would need to reformulate the draft notice of appeal to indicate precisely the issues relating to that paragraph.

The court stood the matter over for 48 hours and heard the parties as to the finalisation of the application and appeal. The court directed the applicant to reformulate the draft notice of appeal to indicate precisely the issues that related to paragraph 7.2 of the amended statement of claim, if it wished to pursue the challenge to that paragraph. The court did not make any final orders in this case, as it was still considering the application and appeal.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

JUDGMENT OF THE COURT: This is an application for leave to appeal from the decision of a Judge dismissing the applicant's application to strike out the statement of claim or a paragraph of the statement of claim in a defamation action. It also constitutes the substantive hearing of the appeal. The respondent was a member of the State Parliament and a Minister of the Crown having responsibility for the administration of the government department that oversees the regulation of the finance broking industry. The applicant is the publisher of a daily newspaper. One Jim McGinty was an opposition member of State Parliament. On 17 February 2000 McGinty wrote a letter, addressed and delivered to the Commissioner of Police, which is in these terms:"I wish to complain about the conduct of Doug Shave MLA.On 15th February 1999 Mr Shave delivered to the West Australian Newspaper a letter in which Mr Shave named Dominic Casella as a person who had made a complaint to the Finance Brokers Supervisory Board.Mr Shave is the Minister of Fair Trading.Mr Shave has breached Section 88 of the Finance Brokers Control Act. I believe the only way in which Mr Shave could have known of Mr Casella's identity was by breaching that provision. In any event, by writing the letter, Mr Shave was an accessory after the fact to a serious breach of the legislation he has a duty to uphold." On 18 February 2000 the applicant published an article which was as follows:"Shave 'broke' secrecy rule.Police may probe naming of broker complainant.By Michael SouthwellTHE State Opposition has asked Police Commissioner Barry Matthews to order an investigation into a possible breach of the Finance Brokers' Control Act involving Fair Trading Minister Doug Shave.Labor fair trading spokesman Jim McGinty has complained that despite secrecy provisions in the Act, Mr Shave obtained the name of a man who lodged a complaint with the Finance Brokers' Supervisory Board then revealed the man's identity in a letter to the editor published in The West Australian last week.Mr Shave's letter referred to an earlier report which revealed the Finance Brokers' Supervisory Board had failed to investigate a complaint made in January last year which indicated that finance broker Blackburne and Dixon got a secret commission valued at $1 million for arranging a $4 million loan in 1993.The board announced an investigation on February 3, three days after the report was published. Under the secrecy provision of the Finance Brokers Control Act, it is an offence for a registrar, member or officer of the board to divulge information about a person provided to the board.In a letter to Mr Matthews, Mr McGinty said he believed the only way Mr Shave could have known the identity of the complainant was by breaching the secrecy provision.'In any event, by writing the letter Mr Shave was an accessory after the fact to a serious breach of the legislation he has a duty to uphold,' the letter said.A spokeswoman for Mr Matthews said the Commissioner was considering what action to take.The man named by Mr Shave as the complainant developer Dominic Casella, said he was outraged by the Minister's action.'Instead of concentrating on why his department did not investigate this complaint when I made it in January last year, he has tried to discredit me,' Mr Casella said.He said he phoned Mr Shave several times since the letter was published to demand an apology but the Minister had not responded to his calls.'Mr Shave has been defending the brokers and saying there's nothing wrong, then he's ready to publicly attack someone who tries to blow the whistle,' Mr Casella said.Mr Shave said he learnt that Mr Casella was the complainant when he was provided with a copy of the complaint by the Ministry of Fair Trading.He said he was aware of the secrecy provision in the Act and that the information had been provided by the ministry, not a member or officer of the board. The registrar and officers of the board are employed by the ministry.Mr Shave said the identity of a complainant had no bearing on whether a complaint would be investigated by the board and the ministry."

Ratio Decidendi

Legal Principle Established

That leaves the question of par 7.2 of the amended statement of claim. In argument, counsel for the applicant raised the interesting question whether, in light of Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10, the previously accepted wisdom as to pleading imputations of suspicion might fall to be reconsidered. It may be that in the light of what has been said in these reasons the applicant might choose not to pursue the challenge to that paragraph. However, if there are other issues to be raised we think it is in the interests of justice that a broad view be taken of the appeal papers and that the parties be given an opportunity to advance whatever additional submissions they think are appropriate. If that were to be the case the applicant would need to reformulate the draft notice of appeal to indicate precisely the issues which relate to par 7.2 of the amended statement of claim. We will therefore stand the matter over for 48 hours and hear the parties as to the finalisation of the application and appeal.