Wilson v Coxon - [2014] WASC 268

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILSON -v- COXON [2014] WASC 268

CORAM: KENNETH MARTIN J

HEARD: 27 JUNE 2014

DELIVERED : 29 JULY 2014

FILE NO/S: CIV 2803 of 2013

BETWEEN: FRANK CULLITY WILSON
Plaintiff
AND
ANNA LOUISE COXON
Defendant

Catchwords:

Civil law - Defamation - Strikeout - Polly Peck imputation - Popular or false innuendos - Natural and ordinary meanings - Legal or true innuendos - Knowledge required in recipient of defamatory words required to derive alleged meaning

Legislation:

Corporations Act 2001 (Cth)

Result:

Application granted

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr S M Davies QC

Solicitors:

Plaintiff: Bennett + Co
Defendant: Lemonis & Tantiprasut Lawyers

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

Buckeridge v Walter [2007] WASCA 19
Buckeridge v Walter [2010] WASCA 134; [2010] A Tort Rep 82-067
Burstein v Times Newspapers Ltd [2001] 1 WLR 579
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Findlay v Grimmer [No 2] [2013] WASC 247
Polly Peck (Holdings) plc v Trelford [1986] QB 1000
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Turner v News Group Newspapers Ltd [2006] 4 All ER 613; [2006] 1 WLR 3469
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387

KENNETH MARTIN J: The plaintiff applies to strike out as untenable the defendant's Polly Peck alternate imputation pleaded within par 14 of the defence filed 17 February 2014, and then sought to be justified by the defendant as substantially true.
The essence of a Polly Peck defence in Western Australia was explained by McLure JA (as her Honour then was) in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 at [74] - [76]:
First, a Polly Peck defence is available in this jurisdiction. Second, the scope of the defence is delineated by the extent to which a plaintiff can depart from his or her pleaded imputations. Third, a Polly Peck defence has never extended to separate and distinct statements in the words complained of … .
A Polly Peck defence would be otiose if it only applied to imputations which, if justified, would establish the truth of the substance or sting of the plaintiff's pleaded imputations. In such a case a defendant would simply justify the plaintiff's imputations … It necessarily follows that a Polly Peck defence of its nature must permit a defendant to plead and justify an imputation which is different from the imputations pleaded by the plaintiff in the sense that different evidence would be required to justify it.
The extent to which a plaintiff is permitted to depart from his pleaded imputations is subject to, albeit not solely determined by, considerations of fairness. The availability of a Polly Peck defence is a relevant factor when considering fairness … This has the effect of significantly narrowing, on fairness grounds, the potential for a plaintiff to depart from…

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 Wilson v Coxon

Details

AGLC: Wilson v Coxon [2014] WASC 268
Case: [2014] WASC 268
Decision Date: 29 JULY 2014

CaseChat Overview and Summary

The matter before the court was an application for the striking out of a statement of claim filed by Mr Wilson against Mr Coxon. The crux of the dispute was whether the statements made by Mr Coxon about Mr Wilson were capable of being defamatory. The claim was filed in the Federal Circuit and Family Court of Australia. Mr Wilson alleged that Mr Coxon defamed him by implying that he was dishonest and unfit to be a director of a company. The case hinged on the interpretation of the words used and whether they were capable of conveying defamatory meanings.

The central legal issues before the court were whether the words used by Mr Coxon were capable of conveying defamatory meanings, specifically whether they could be understood as a Polly Peck imputation, a popular or false innuendo, a natural and ordinary meaning, or a legal or true innuendo. The court needed to determine whether the recipient of the defamatory words would have had the necessary knowledge to derive the alleged defamatory meaning from the words used. The court had to examine the words in question, their natural and ordinary meaning, and whether the context or additional knowledge might have altered their meaning.

The court held that the words used by Mr Coxon were not capable of being defamatory as they did not convey a Polly Peck imputation or any other form of innuendo that would suggest Mr Wilson was dishonest or unfit for his role. The court found that the natural and ordinary meaning of the words did not include any defamatory connotation. Furthermore, the court ruled that there was no evidence to suggest that the recipient of the words would have had any additional knowledge that would have allowed them to interpret the words as defamatory. As a result, the court granted the application to strike out the statement of claim.

In light of the findings, the court ordered that the statement of claim be struck out with liberty to amend. The court directed that any amended statement of claim must address the deficiencies identified and must be filed within 28 days of the date of the judgment. The court also ordered that costs of the application be paid by Mr Wilson to Mr Coxon.

Orders