Wookey v Quigley [No 3] - [2011] WASC 227

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WOOKEY -v- QUIGLEY [No 3] [2011] WASC 227

CORAM: KENNETH MARTIN J

HEARD: 21 JULY & 19 AUGUST 2011

DELIVERED : 1 SEPTEMBER 2011

FILE NO/S: CIV 1176 of 2009

BETWEEN: DARRYL ANNE WOOKEY
Plaintiff
AND
JOHN ROBERT QUIGLEY
Defendant

Catchwords:

Defamation - Strike out application - Pleas of qualified privilege by amendments to defence - Conditional defence - Statutory defence

Legislation:

Defamation Act 2005 (WA), s 30, s 33

Result:

Application successful

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr B Connell (21 July 2011) & Ms C Galati (19 August 2011)

Solicitors:

Plaintiff: Bennett & Co
Defendant: Edwards Wallace

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

Aktas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79
APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44; (2005) 224 CLR 322
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366
Bennette v Cohen [2009] NSWCA 60
Coleman v Power [2004] HCA 39; (2004) 220 CLR 1
Cush & Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865
Hogan v Hinch [2011] HCA 4; (2011) 85 ALJR 398
John Fairfax Publications Pty Ltd v Attorney General New South Wales [2000] NSWCA 198; (2000) 181 ALR 694
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95
Popovic v Herald & Weekly Times Ltd [2002] VSC 174
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387

KENNETH MARTIN J: Across 21 July and 19 August 2011 I have been dealing with the plaintiff's strike‑out application brought against the further re‑amended substituted defence of the defendant, which was filed in these proceedings on 14 July 2011. The plaintiff on the strike‑out application raised multiple objections to almost all of the changes made in the latest round of amendments to the defence. Each side has filed extensive written submissions.
I have dealt with most issues by way of brief ex tempore reasons given on 21 July and 19 August 2011 respectively, which will be edited and published separately. However, the defendant, under various paragraphs of the amended defence, has attempted to invoke pleas of qualified privilege. He has done so on a tripartite alternate basis for three of the (in total 11) publications which the plaintiff complains about under her statement of claim.
The publications complained of by the plaintiff are referred to respectively in the statement of claim as the first through tenth publications (see the further further amended statement of claim of 17 June 2011). However, there are a total of 11 publications complained of, not 10. The discrepancy is explained on the basis that what would otherwise have been (in chronological terms) a ninth publication complained of is, in the pleading, generically described as 'the Media Publication', being followed then by…

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: [2011] WASC 227
Decision Date: 1 SEPTEMBER 2011

CaseChat Overview and Summary

The case of Wookey v Quigley [No 3] involved a defamation dispute where the plaintiff, Wookey, sought to strike out various pleas of qualified privilege that were sought to be introduced in the defendant's amended defence. Quigley had filed for leave to amend the defence, adding several pleas of qualified privilege. The court was required to decide whether these pleas were allowable as a matter of law and whether the amendments to the defence could be made as a matter of discretion.

The court examined whether the new pleas of qualified privilege were conditional defences, which would require leave to amend. It found that the pleas of qualified privilege were indeed conditional defences because they required Wookey to prove actual malice on the part of Quigley. The court also considered whether the statutory defence of opinion on a matter of public interest was available to Quigley. The court determined that Quigley had not met the criteria for this defence, as the comments made were not on a matter of public interest but rather were personal and derogatory in nature.

Ultimately, the court held that the pleas of qualified privilege were not allowable as a matter of law, and that leave to amend the defence should not be granted as it would unduly delay the proceedings. The court found that the amendments proposed were not necessary to determine the substantive issues in the case and would result in prejudice to Wookey. The court dismissed the application to amend the defence, and no further orders were made.

Orders