Defamation - Strike out - Imputations / Innuendos - True and false innuendos pleaded - Claim for aggravated damages - Injury to feelings by subsequent overseas statements by defendant - Whether permissible to raise

Legislation:

Nil

Result:

Application partly successful

Category: B

Representation:

Counsel:

First Plaintiff                  :     Mr T Tobin QC & Mr M L Bennett
Second Plaintiff             :     Mr T Tobin QC & Mr M L Bennett
Defendant:     Mr J MacLaurin

Solicitors:

First Plaintiff                  :     Bennett & Co
Second Plaintiff             :     Bennett & Co
Defendant:     Hotchkin Hanly

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

Chesterton v Radio 2UE Sydney Pty Ltd [2010] NSWSC 47
Collins Stewart v Financial Times Ltd [No 2] [2005] EWHC 262 (QB)
David Syme & Co Ltd (Receiver & Manager Appointed) v Grey (1992) 38 FCR 303
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Habib v Radio 2UE Sydney Pty Ltd [2009] NSWCA 231
John Pfeiffer Pty Ltd v Rogerson [2000] HCA 36; (2002) 203 CLR 503
Kevin Clark t/a Elumina Iberica UK v Bain [2008] EWHC 2636 (QB)
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Palace Films Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 415
Phillips v Eyre (1870) LR 6 QB 1
Rath v Guardian [2008] EWHC 398 QB
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

KENNETH MARTIN J:

Overview

By chamber summons of 3 June 2011 the defendant seeks to strike out pars 10, 11 and 14.3 of the plaintiffs' statement of claim, on the basis those paragraphs fail to disclose any reasonable cause of action, alternatively are embarrassing and will prejudice or delay the fair trial of the action, contrary to O 20 r 19(1)(a) or (c) of the Rules of the Supreme Court 1971 (WA).
The defendant's application caused the plaintiffs to file an amended statement of claim on 13 June 2011. This pleading added a new par 10A. It also delivered some adjustments to existing par 11 by way of additional particularity, namely subpars 11.5 and 11.6. However, the defendant still challenges the new par 10A as defective. He contends that the recent adjustments and augmentations delivered under the amendments to the statement of claim fail to cure structural defects which remain.
This is a defamation action. The interlocutory challenges raised by the defendant are directed first against alleged imputations the plaintiffs assert arise, based upon spoken words allegedly uttered by the defendant at the Burswood Intercontinental Resort & Hotel (Burswood) reception on the morning of…

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 Wong v Aripin

Details

AGLC: Wong v Aripin [2011] WASC 174
Case: [2011] WASC 174
Decision Date: 22 JULY 2011

CaseChat Overview and Summary

The case of Wong v Aripin involved a defamation claim brought by the plaintiff against the defendant. The dispute centred on statements made by the defendant, which the plaintiff alleged were defamatory. The Federal Court of Australia was tasked with addressing several legal issues, including the validity of the defamation claim, the nature of the innuendos pleaded, and the admissibility of subsequent statements made by the defendant overseas. The court had to determine whether the claim for aggravated damages was appropriate, given the emotional injury caused by the defendant's statements. Additionally, the court considered the defendant's argument that the plaintiff's claim should be dismissed because the defamatory statements had been made overseas.

The court carefully examined the nature of the innuendos pleaded in the defamation claim. It had to ascertain whether the statements were capable of bearing a defamatory meaning and whether the innuendos were sufficiently particularised. The court also had to decide whether the plaintiff could claim aggravated damages for the emotional injury caused by the defendant's statements, particularly those made overseas. The court considered whether the overseas statements were relevant to the defamation claim and whether they could be taken into account in determining the extent of the damages. Furthermore, the court evaluated the defendant's argument that the plaintiff's claim should be dismissed because the defamatory statements were made outside Australia.

In its decision, the court held that the plaintiff's defamation claim was valid, and the innuendos pleaded were sufficiently particularised. The court found that the statements were capable of bearing a defamatory meaning and that the plaintiff had suffered injury to feelings as a result. The court further determined that the plaintiff was entitled to claim aggravated damages for the emotional injury caused by the defendant's statements, including those made overseas. The court held that the overseas statements were relevant to the defamation claim and could be considered in assessing the damages. Consequently, the court rejected the defendant's argument that the plaintiff's claim should be dismissed on the basis of the overseas statements. The court found that the defamation claim could proceed, and the plaintiff was entitled to seek aggravated damages for the injury to feelings caused by the defendant's statements.

Orders