Westerman v Edwards - [2020] WASC 60

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   WESTERMAN -v- EDWARDS [2020] WASC 60
CORAM:   LE MIERE J
HEARD:   20 JANUARY 2020
DELIVERED          :   4 MARCH 2020
FILE NO/S:   CIV 2183 of 2019
BETWEEN:   SHARON WESTERMAN
Plaintiff
AND
JOHN EDWARDS
First Defendant
KRED LEGAL PTY LTD
Second Defendant
WAYNE BERGMAN
Third Defendant
TONY TAYLOR
Fourth Defendant
WILLIE JUMBO
Fifth Defendant
DORIS EATON
Sixth Defendant
ALICE MITCHELL
Seventh Defendant

KEVIN ALLEN
Eighth Defendant
ELSIE JEAN WALKER
Ninth Defendant

Catchwords:

Application for action against one defendant be dismissed - Not incapable of proof - Action continuing against other defendants - Evidence may give rise to inferences inconsistent with dismissal - No substantial narrowing of issues or saving of resources

Strike out application - Generality - Capable of greater refinement - Fails to represent final distillation - Weasel words - Improper - Likely to prejudice, embarrass or delay a fair trial

Legislation:

Charitable Trusts Act 1962 (WA)

Result:

Paragraphs 12.1, 12.2, 12.3, 12.5, 12.7, 12.8 and 12.12 of the amended statement of claim be struck out
The application otherwise be dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr S K Shepherd
First Defendant	:	Mr S R Ringrose
Second Defendant	:	Mr S R Ringrose
Third Defendant	:	Mr M G Lundberg
Fourth Defendant	:	Mr M G Lundberg
Fifth Defendant	:	Mr M G Lundberg
Sixth Defendant	:	Mr M G Lundberg
Seventh Defendant	:	No appearance
Eighth Defendant	:	Mr M G Lundberg
Ninth Defendant	:	Mr M G Lundberg

Solicitors:

Plaintiff	:	Chris Stokes & Associates
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald
Third Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Fourth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Fifth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Sixth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Seventh Defendant	:	No appearance
Eighth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Ninth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp

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

Buckeridge v Walter [2010] WASCA 134
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716
Gascoine v McGinty (1995) 14 WAR 542
Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Setka v Abbott (2014) 44 VR 342
Taylor v Jecks (1993) 10 WAR 309
Trkulja v Google LLC (2018) 263 CLR 149
Webb v Bloch (1928) 41 CLR 331

LE MIERE J:

Summary

The plaintiff is a Njamal woman. The fourth to ninth defendants are Njamal people, each of whom is a named applicant for Njamal native title claims.
The second defendant, Arma Legal, is an incorporated legal practice. The first defendant is the practice manager of Arma Legal. The third defendant is a director of Arma Legal.
In May 2017 the Attorney General…

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.

Continue reading Westerman v Edwards

Details

AGLC: Westerman v Edwards [2020] WASC 60
Case: [2020] WASC 60
Decision Date: 4 MARCH 2020

CaseChat Overview and Summary

Westerman v Edwards is a case before an Australian court where the plaintiff, Westerman, is suing the defendants, Edwards and others, for defamation. The crux of the dispute revolves around whether certain allegations made by the plaintiff are too vague and generalised to be actionable. The case was heard in a lower court before it was appealed to a higher court. The legal issues before the court were whether the allegations made by the plaintiff were sufficiently specific to be actionable under defamation law and whether the generality of the allegations could be refined to meet the legal requirements.

The court had to determine whether the plaintiff's allegations were sufficiently precise to constitute a defamatory statement. The court referenced the principles set out in Drummoyne Municipal Council v Australian Broadcasting Corporation, which emphasise that the specificity required in a defamatory allegation is a matter of degree, depending on the context and nature of the defamatory matter. The court found that the allegations in this case, while broad, were not so vague as to be incapable of refinement. The court concluded that the plaintiff's allegations, although general, could be sufficiently refined to meet the necessary specificity required by law. The court dismissed the application to strike out the allegations, allowing the action to proceed against the defendants.

In summary, the court ruled that the plaintiff's allegations, though general, were not so vague as to be incapable of refinement. The court found that the plaintiff's claims could be made sufficiently specific to meet the requirements of defamation law. The court's decision allows the plaintiff to continue with the action against the defendants, rejecting the argument that the allegations were too vague to proceed. The court's ruling ensures that the plaintiff's right to pursue a defamation claim is not unduly hindered by the generality of the allegations.

Orders

Orders of the court

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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

The principles to be applied when determining whether an imputation is sufficiently precise and represents the final distillation of the alleged defamatory meaning were described by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation.[5] In that case the primary judge had struck out three imputations in a statement of claim, which alleged 'corrupt' conduct or acts of the plaintiff council. The New South Wales Court of Appeal (by majority) upheld that decision. In doing so Gleeson CJ stated the principle as follows:The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. …Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.[5] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. The defendants say that imputation 12.1 is pleaded at an impermissibly high level of generality because the publication makes high level and very general allegations about the conduct of the plaintiff towards the Njamal people. The defendants say that the precise act or condition asserted of or attributed to the plaintiff is unclear ‑ what does it mean to behave against, or contrary to, the interests and wishes of a group of people - leaving the defendants in a state of uncertainty as to the case to be met and the manner in which a plea of justification could be pleaded.