JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: WILLIAMS -v- SMITH [2012] WASC 371
CORAM: LE MIERE J
HEARD: 3 SEPTEMBER 2011
DELIVERED : 12 OCTOBER 2012
FILE NO/S: CIV 1026 of 2011
BETWEEN: PAUL MONTAGUE WILLIAMS
Plaintiff
AND
MELANIE JAYNE SMITH
Defendant
FILE NO/S :CIV 1027 of 2011
BETWEEN :PAUL MONTAGUE WILLIAMS
Plaintiff
AND
STEPHANIE SMITH
Defendant
Catchwords:
Tort - Injurious falsehood - Elements of tort - Turns on own facts
Practice and procedure - Application for summary dismissal - Application for statement of claim be struck out - Turns on own facts
Legislation:
Defamation Act (WA), s 9
Limitation Act 2005 (WA), s 15
Rules of the Supreme Court 1971 (WA), O 1 r 4A, O 1 r 4B, O 16 r 1, O 20 r 13, O 20 r 19
Result:
Application for summary dismissal dismissed
Parts of statement of claim struck out
Category: B
Representation:
CIV 1026 of 2011
Counsel:
Plaintiff: In person
Defendant: In person
Solicitors:
Plaintiff: In person
Defendant: In person
CIV 1027 of 2011
Counsel:
Plaintiff: In person
Defendant: In person
Solicitors:
Plaintiff: In person
Defendant: In person
Case(s) referred to in judgment(s):
Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Ballina Shire Council v Ringland (1994) 33 NSWLR 680
Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209
Bride v KMG Hungerfords (1991) 109 FLR 256
Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association (WA) (1987) 13 FCR 413
Dye v Commonwealth Securities Ltd [2012] FCA 242
Fielding v Variety Incorporated [1967] 2 QB 841
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
HECEC Australia Pty Ltd v Hydro‑Electric Corp [1999] FCA 822
James v Faddoul [2007] NSWSC 821
Joyce v Sengupta [1993] 1 All ER 897; [1993] 1 WLR 337
Khodaparast v Shad [2000] 1 All ER 545; [2000] 1 WLR 618
McKellar v Container Terminal Management Services Ltd [1999] FCA 1101; (1999) 165 ALR 409
Palmer Bruyn & Parker v Parsons [2001] HCA 69; (2001) 208 CLR 388
Ratcliffe v Evans [1892] 2 QB 524
Sheperd v Wakeman (1662) 82 Eng Rep 982
LE MIERE J: In each of these actions the defendant has applied for an order that the action be summarily dismissed, alternatively the statement of claim be struck out or further alternatively that certain paragraphs in the statement of claim be struck out.
The plaintiff (Mr Williams) is the father of a child who I will refer to as Libby and the former de facto husband of the defendant in CIV 1026 of 2011 who is the mother of Libby and who I will refer to as Melanie. The defendant in CIV 1027 of 2011, who I will refer to as Stephanie, is the mother of Melanie and grandmother of Libby.
History of proceedings
Mr Williams commenced each of…
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- AGLC
- Williams v Smith [2012] WASC 371
- Case
- [2012] WASC 371
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the tort of injurious falsehood could be invoked in this case. The elements of the tort of injurious falsehood were examined, and the court considered whether the plaintiff's claims fell within the scope of the tort. The court also reviewed the relevant legal principles and precedents, including cases such as Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation and Dye v Commonwealth Securities Ltd, to understand the boundaries of the tort. The court further examined whether the plaintiff's professional reputation and business interests were sufficiently protected under the tort of injurious falsehood.
The court found that the plaintiff's claims did not fall within the scope of the tort of injurious falsehood. The court held that the tort was not applicable to the facts of this case as the plaintiff was not pursuing a trade or business in the traditional sense. The court noted that the tort is designed to protect proprietary and commercial interests, and in this case, the plaintiff was an employee rather than an independent professional or business owner. The court concluded that the statement of claim should be struck out as it did not establish a valid cause of action for injurious falsehood.
The court ordered that the statement of claim be struck out, and the plaintiff's claim for injurious falsehood was dismissed.
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 width of the tort was again referred to by Beech J in Bonney v Ngunytju Tjitji Pirni Aboriginal Corporation [2009] WASC 209 on an application to strike out the statement of claim. The subject matter of the statements relied upon in the statement of claim concerned the plaintiff's performance at work. Beech J was not prepared to strike out the statement of claim on the basis that the subject matter of those statements is outside the scope of the tort of injurious falsehood. His Honour said that would be a matter for argument and resolution at a trial. In Dye v Commonwealth Securities Ltd [2012] FCA 242 the applicant was an employee of Commonwealth Securities Ltd (CommSec). She alleged she had been sexually harassed by two senior bank officers. The causes of action relied upon by the applicant included injurious falsehood. That cause of action was based upon, amongst others, allegedly false statements said to have been made by CommSec to the effect that allegations made by the applicant against the senior bank officers were false. Buchanan J held that the tort of injurious falsehood did not extend to those statements:In Ballina Shire Council v Ringland (1994) 33 NSWLR 680, Gleeson CJ mentioned (at 693) 'an interesting question as to how far the action for injurious falsehood extends beyond the concepts of business or property'. The issue was mentioned again in Palmer Bruyn but not resolved (see per Gleeson CJ at [1], per Gummow J at [60]). In the present case I would not be prepared to extend the existing categories of actionable loss to accommodate academic commentary which has suggested the limits of injurious falsehood have been set too narrowly and should be expanded in Australia.Although there are cases where a person, whose profession or business depends upon their personal standing in the community or in the world of business or in their own profession, may claim damages for an injury to their trade or business arising from a maliciously false statement made about them, that is not the present case. Ms Dye was not pursuing a trade or business in the sense contemplated by those cases. She was an employee in a large organisation at a relatively junior level. No property or commercial or business interest of the kind necessary for this tort was pleaded, much less established. Ms Dye sold no product, had no custom to be lost, had no professional practice to be injured and had no business to be damaged. In my view, this cause of action was misconceived from the outset and, for that reason alone, could never succeed. In any event, it fails every other test on the facts [663] ‑ [664]. The torts of defamation and malicious falsehood have many similarities and in many instances overlap. The essential difference between them is that defamation actions are a means of protecting and vindicating the reputation of the party about whom a false statement was made, whereas injurious falsehood actions are designed to afford a remedy to one whose economic interest was harmed as a result of another's false statement. Fleming (10th ed) says that the law of defamation protects an interest in personal reputation, while injurious falsehood protects an interest in the disposability of one's property, products or business: [30.230]. In Palmer v Bruyn Gummow J said that the tort of injurious falsehood protects proprietary and commercial interests whereas the law of defamation protects personal interests (at [58]).