Supreme Court of WA|2011-09-01|Before: Martin J

WOOKEY -v- QUIGLEY [No 3] [2011] WASC 227 (1 September 2011)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

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

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

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

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

Cush & Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865

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

1 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.

2 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.

3 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 the ninth and tenth publications respectively.

4 The defendant, under his latest defence, has sought to raise qualified privilege as a defence against the Media Publication and to the ninth and tenth publications, as defined. As I will explain, the Media Publication is the defendant's facsimile of 13 January 2009 to a journalist who was the political editor for the West Australian newspaper, Mr Robert Taylor.

5 The plaintiff has earlier complained against the defendant in her statement of claim over three anonymous publications sent to her workplace with the Australian Government Solicitor in Canberra - these being, respectively, the sixth, seventh and eighth publications - which were said to have been received and published in Canberra on or about 10 December 2008. They are described under pars 23 through 26 (the sixth publication), pars 27 through 30 (the seventh publication) and pars 31 through 34 (the eighth publication), of the statement of claim.

6 The defendant at all times has firmly denied any responsibility for the anonymous publications which have rightly been described, in my view, as 'hate mail' against the plaintiff. The statement of claim nevertheless attributes them to the defendant.

The Lavan Legal letter of demand of 23 December 2008 to the defendant

7 The Media Publication was preceded by what may be described as a letter of demand, despatched by the solicitors for the plaintiff, Lavan Legal, to the defendant at his home in Trigg, Western Australia. The letter of demand was dated 23 December 2008, but it appears to have arrived at the defendant's residence in the afternoon of 24 December 2008, that is on Christmas Eve.

8 The Lavan Legal letter of 23 December 2008 was signed by Mr Bennett as general counsel of Lavan Legal.

9 The Lavan Legal letter was marked 'Strictly private and confidential'. It read, in part, in the following terms:

Dear Sir

Ms Darryl Wookey

I act on behalf of Darryl Wookey. On or about 10 December 2008 you sent in envelopes marked Private & Confidential to eight employed solicitors of the Australian Government Solicitor's Office (four of whom worked in the Canberra office with Ms Wookey) a defamatory publication of and concerning Ms Wookey.

Details of the sixth, seventh and eighth publications were set out.

10 The Lavan Legal letter to the defendant concluded:

The reference to graffiti is plainly a reference to the incident at your home on or about 13 October 2008 in respect of which you accused the Police Force of Western Australia of graffiting your wall and boat in retribution for comments made by you concerning the investigation and arrest of Andrew Mallard.

The reference to Ms Wookey going to Singapore is a fact known to very few people. It is a fact that was known to two of your children by your former marriage who have obviously informed you.

Your behaviour in defaming Ms Wookey is ... [redacted] ...

It will not be tolerated. Unless I receive by email addressed to the email address shown above [that is Mr Bennett's email address at Lavan Legal] within 24 hours of the date of this letter your written undertaking that you will desist from engaging in any further defamation proceedings will be commenced against you without further notice. For you to engage in such conduct as a sitting member of parliament in the State of Western Australia is a disgrace. ...

Simultaneously with the preparation of this letter, a complaint has been made to the West Australian Police Force concerning the threats contained in the communication sent to Ms Wookey.

I await hearing from you. Should I not hear from you, then you may expect to be served with proceedings without further notice.

11 On 13 January 2009, the communication now complained of as the Media Publication by the plaintiff was faxed by the defendant to Mr Taylor. It strongly complained about the Lavan Legal letter of demand as received by the defendant on Christmas Eve 2008. The letter of demand was described by the defendant as 'levelling a raft of false assertions against me on Christmas Eve' and as 'Mr Bennett's disgusting letter'. The defendant said he had made a denial of all allegations and was 'seeking a retraction'. He had demanded retractions from 'Wookey, Bennett and Lavan Legal'.

12 The Media Publication faxed to Mr Taylor said that a response to him by Lavan Legal's Managing Partner to the defendant's requests for retraction (on no less than a dozen occasions) had been in the following terms:

If they are the work and design of someone else then surely you have the same interest as our client in ascertaining their identity.

13 The defendant's facsimile to Mr Taylor then (curiously) mentions a 'disgusting truth' that 'Lavan Legal, it would appear, do not believe that I am the culprit, but still won't retract'. A coherent basis for this assertion as to non-belief by the plaintiff's solicitors is not apparent.

Yesterday I wrote to Lavan Legal informing them that I would take this matter public and that if their client or their firm had any objections to me doing so they should advise me immediately and any reasons for such objections - they have not.

The defendant concluded the Media Publication to Mr Taylor with the following two paragraphs:

How you proceed is up to you but what I can assure your Editor and the public of Western Australia, the only knowledge I have of the events being complained of is as set out in Lavan Legal's letter of 23 December 2008.

In forwarding you a copy of Lavan Legal's letter to me I have of course obscured those portions which could be regarded as defamatory of Ms Wookey to ensure that I do not republish any defamatory material.

The facsimile was also copied and sent to both the Chairman of Partners of Lavan Legal, Mr Mossenson, and the Managing Partner, Mr Gaunt.

15 The Media Publication preceded what is also complained of by the plaintiff as a ninth publication, being a page 2 newspaper article appearing in the Tuesday edition of the West Australian newspaper of 17 January 2009 under a heading 'Wookey accuses Quigley over letters' by Robert Taylor, State Political Editor. The plaintiff says this article was defamatory of her. She attributes the responsibility for its publication to the defendant by reason of his sending the Media Publication.

16 Two days later, on Thursday 19 January 2009, over Radio 6PR at about 9.50 am, the defendant participated in a radio interview with 6PR's morning announcer, Mr Simon Beaumont. What the defendant said over the air to Mr Beaumont in that interview is also complained of by the plaintiff as being defamatory of her, by what is referred to as the tenth publication.

The plaintiff's imputations in the last three publications of 2009

17 Before moving to describe the defences of qualified privilege which were recently raised in July 2011 under the defendant's further re-amended substituted defence in this action (commenced on behalf of the plaintiff on 27 January 2009), it is convenient to first set out the specific imputations (popular innuendos) which the plaintiff seeks to extract from the three publications as defamatory of her, under her further further amended statement of claim. These imputations are said to arise against her in the natural and ordinary meaning of the words found in the Media Publication and then in the ninth and tenth publications.

18 As regards the Media Publication, by her par 36 the plaintiff complains:

In its natural and ordinary meaning, the Media Publication complained of meant, and was understood to mean, that the Plaintiff:

36.1 had made false allegations against the defendant; and

36.2 was of a character that would deceptively make false allegations about the Defendant in his capacity as a Parliamentarian and personally.

19 Under par 38, the plaintiff says that the Media Publication was published by the defendant knowing and intending that it would be republished in the West Australian newspaper, this being its natural and probable consequence.

20 As regards the ninth publication (the article on page 2 of the West Australian newspaper of Tuesday 17 January 2009) the plaintiff complains (see par 40) that:

In their natural and ordinary meaning, the words complained of in the Ninth Publication meant, and were understood to mean, that the Plaintiff:

40.1 had made false allegations about the Defendant;

40.2 had conducted herself in such a way so as to falsely and maliciously destroy the Defendant;

40.3 is a person of such miserable, inadequate character that she has to live in an emotionally parasitic relationship with a criminal person; and

40.4 had carried out a criminal act of graffiti on the Defendant's fence.

21 The ninth publication is attributed to the defendant on the basis that he had caused the newspaper article to be published. This was 'by reason of his earlier publication of the Media Publication to Taylor,' (par 39 of the plaintiff's further further amended statement of claim).

22 As regards the tenth publication (radio interview with Simon Beaumont on 6PR on Thursday 19 January 2009), the plaintiff complains of being defamed by reference to the following imputations (par 44) from the words spoken on air:

In its natural and ordinary meaning, the Tenth Publication complained of meant, and was understood to mean, that the Plaintiff:

44.1 had maliciously caused her solicitors to issue a false complaint against the Defendant at Christmas to cause maximum distress to the Defendant and his family;

44.2 had maliciously turned the Defendant's 11 year old daughter against him;

44.3 was so lacking in moral rectitude as to deliberately corrupt the Defendant's young children by exposing them to numerous criminals; and

44.4 is a liar who makes false accusations about the Defendant.

23 Having identified the three relevant publications and the imputations sought to be found therein by the plaintiff, I can now turn to qualified privilege defences which the defendant seeks to raise by his recently amended defence.

24 As regards the Media Publication, the relevant defence plea is found in par 16A, in these terms:

Further or in the alternative to 15, 16 and 16B above, the defendant says that the 'Media Publication':

(a) was published on an occasion of qualified privilege at Common Law;

(b) was published under the extended occasion of qualified privilege at Common Law (Constitutional Defence);

(c) was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act 2005.

25 There follow several pages of particulars, to some of which I will refer. I note at the outset, however, that par 16A's reference to par 16B is a clear error. There is no par 16B to be found in the defence. The words 'and 16B' must be removed.

26 More substantively, I turn to what are given as the particulars of qualified privilege.

27 A first tranche of particulars is found under the heading 'Particulars of Qualified Privilege: Common Law'. There follow 18 subparagraphs referring to the defendant's facsimile communication to Mr Taylor with its enclosure as being published 'for the information of the public or a substantial portion of it', and that the defendant 'had a social and/or moral duty to publish the matter to the people of Western Australia or a substantial portion of them'.

28 The particulars heavily emphasise the defendant's status as a member of Parliament, his qualification as an admitted legal practitioner and his strong denials of any responsibility for the anonymous sixth, seventh and eighth publications. Reference is made to the defendant having complained that there was a failure to withdraw all allegations of responsibility against him, despite his emphatic denials of any involvement and 12 written requests made between 24 December 2008 and January 2009 to Ms Wookey's solicitors that the allegation of responsibility against him be retracted.

29 The particulars then refer to the attempted attribution of responsibility to the defendant for the sixth, seventh and eighth publications by the plaintiff as effectively allegations of the commission of criminal offences by way of the making of threats against the plaintiff. Reference follows to the provisions of s 32 of the Constitution Act Amendment Act 1899 (WA), which can bear against any member of Parliament convicted by a court of an offence punishable by a term of imprisonment of 5 years or more.

30 By par 16A.12 the defendant refers to his own advice to the Managing Partner of the plaintiff's solicitors (Lavan Legal) that he would 'subject the matter to public scrutiny', as well as his request to be informed if there was any objection to that course, and then the absence of any objection within the timeline the defendant set of 2.00 pm on 12 January 2009.

31 The defendant next refers to the fact that, because Parliament was not sitting until 10 March 2009, that a publication in the West Australian newspaper was 'the only practicable means of his making a publication to the West Australian public and to members of his electorate' (see par 16A.15). Reference in the particulars follows to Mr Taylor's experience as a journalist reporting on political matters. Finally, it is put that the defendant (see par 16A.18) 'had reason to expect that the plaintiff's allegations against him would shortly thereafter become a matter of public knowledge, and that they might become widely circulated before he had an opportunity to respond'.

32 As regards s 30 of the Defamation Act 2005 (WA), some separate particulars are provided, found under subpars 16A.21 through 16A.33. However, the first of these particulars (16A.21) reads, 'The defendant repeats the particulars of common law qualified privilege'. Accordingly, what I have just summarised is to be used again by reference to the s 30 statutory defence.

33 As regards the constitutional defence of qualified privilege, foreshadowed by the assertion seen at par 16A(b), there is eventually found dealt within these particulars the following plea:

Constitutional Defence

16A.19 The defendant repeats the particulars of common law qualified privilege.

16A.20 The defendant repeats the particulars given to s 30 of the Defamation Act below.

34 As I interpret pars 16A.19 and 16A.20, everything found anywhere in the par 16A particulars is simply repeated again and relied upon by the defendant for the Constitutional Defence.

35 Before examining the attempted invocation of the Constitutional Defence, I turn to an examination of some cases that have considered the application of Lange.

The Lange defence (Media Publication and ninth publication viewed together)

36 In Hogan v Hinch [2011] HCA 4 [47]; [2011] HCA 4; (2011) 85 ALJR 398, French CJ referred to Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520. His Honour referred to the decision in the context of a determination over whether a certain law offended against the implied freedom of communication adopted in Lange and as modified in Coleman v Power [2004] HCA 39; (2004) 220 CLR 1 [95] - [96], [196] and [211]. In that context, the Chief Justice observed at [48] as follows:

It was submitted for the Commonwealth that the implied freedom applies only to communications in relation to politics or government at the Commonwealth level. That limitation may be a logical consequence of the source of the implied freedom. That source is to be found in the scheme adopted by the Commonwealth Constitution for a representative democracy and for the amendment of the Constitution by referendum. The limit propounded, despite its logical attraction, is not of great practical assistance. There is today significant interaction between the different levels of government in Australia. The use of cooperative executive and legislative arrangements between Commonwealth and State and Territory governments through the Council of Australian Governments, Ministerial Councils and otherwise, makes it difficult to identify subjects not capable or potentially capable of discussion as matters which are or should be or could be of concern to the national government. The supervision and rehabilitation of serious sex offenders, for example, may raise questions about the adequacy of Commonwealth funding of State and Territory services and cooperative arrangements between the Commonwealth and the States and Territories...

The generality of this Court's statement in Lange about the scope of the communications covered by the freedom tends to bear out these observations:

'this Court should now declare that each member of the Australian community has an interest in disseminating and receiving information, opinions and arguments concerning government and political matters that affect the people of Australia.'

'the discussion of matters at State, Territory or local level might bear on the choice that the people have to make in federal elections or in voting to amend the Constitution, and on their evaluation of the performance of federal Ministers and their departments. The existence of national political parties operating at federal, State, Territory and local government levels, the financial dependence of State, Territory and local governments on federal funding and policies, and the increasing integration of social, economic and political matters in Australia make this conclusion inevitable'.

38 After reference to those passages in Lange taken from (520) and (571 - 572) respectively, French CJ continued at [49] in these terms:

The range of matters that may be characterised as 'governmental or political matters' for the purpose of the implied freedom is broad. They are not limited to matters concerning the current functioning of government. They arguably include social and economic features of Australian society. For these are, at the very least, matters potentially within the purview of government.

39 In Hogan v Hinch the plurality (Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ) also referred to Lange at [92] - [99], in the context of considering the argued inconsistency of Victorian legislation (s 42 of the Serious Sex Offenders Monitoring Act 2005 (Vic)) as incompatible with the implied freedom of political communication, rendering the Victorian provision invalid. The plurality at [92] also referred with apparent approval to earlier observations made by McHugh J in APLA Ltd v Legal Services Commissioner (NSW) [2005] HCA 44 [65] and [66]; [2005] HCA 44; (2005) 224 CLR 322. At [93] the plurality referred to the specific observations of McHugh J from APLA at [66]:

The Lange freedom arises from the necessity to promote and protect representative and responsible government. Because it arises by necessity, the freedom is limited to 'the extent of the need'. Courts and judges and the exercise of judicial power are not themselves subjects that are involved in representative or responsible government in the constitutional sense.

40 The plurality at [93] also referred to the following observations of McHugh J in APLA at [65]:

There is a difference between a communication concerning legislative and executive acts or omissions concerned with the administration of justice and communications concerning that subject that do not involve, expressly or inferentially, acts or omissions of the legislature or the Executive Government. Discussion of the appointment or removal of judges, the prosecution of offences, the withdrawal of charges, the provision of legal aid and the funding of courts, for example, are communications that attract the Lange freedom. That is because they concern, expressly or inferentially, acts or omissions of the legislature or the Executive Government. They do not lose the freedom recognised in Lange because they also deal with the administration of justice in federal jurisdiction. However, communications concerning the results of cases or the reasoning or conduct of the judges who decide them are not ordinarily within the Lange freedom. In some exceptional cases, they may be. But when they are, it will be because in some way such communications also concern the acts or omissions of the legislature or the Executive Government.

41 In Hogan v Hinch the plurality, at [99], found it unnecessary 'to pursue the question whether there is an insufficient connection with any "federal issue" to attract the implied freedom of political communication'.

42 In Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 [8], Owen J observed by reference to the qualified privilege explained in Lange v Australian Broadcasting Commission that:

The effect of the decision is to afford a measure of protection for communications made to the public on a government or political matter.

43 His Honour elaborated on this at [15] by reference to the observations made in Lange at (574) concerning the concept of reasonableness. Owen J observed:

What is relevant is that there is a threshold question, namely, whether the material amounts to 'information, opinions [or] arguments concerning government and political matters that affect Australian people'. The Court gave little guidance on that issue and it remains to be worked out on a case by case basis. It is also relevant that in order for a publisher to avail itself of the Lange defence it must establish that it was reasonable to publish the material.

44 His Honour then referred to the observations made in Lange concerning reasonableness at (574). He said of this requirement, at [24]:

It has always been the case that the defence of qualified privilege requires a nexus between the occasion and the impugned material. It is based on an appreciation of the general welfare of society. In publishing material a person cannot go beyond what is legitimately required for the fulfilment of the interest sought to be protected. If the occasion was privileged, the inclusion of some information outside the ambit of the privilege, or irrelevant to the occasion of privilege will not of itself destroy the privilege. Defamatory material will only be protected by the privilege if it is relevant to the matters at the heart of the duty or interest: see Adam v Ward [1917] AC 309 at 349, citing Henwood v Harrison (1872) LR 7 CP 606 at 622.

It seems to me that these principles are equally relevant to the species of privilege involved in the Lange defence. The question therefore is whether the references to the conduct of the respondent are relevant, in the appropriate sense, to the comments that relate to the activities...

46 In Popovic v Herald and Weekly Times Ltd [2002] VSC 174, Bongiorno J, after reviewing the discussion concerning communications made to the public on government or political matters (Lange (571)), said at [28]:

The constitutional implication of freedom of communication about government and political matters is grounded in the nature of representative government. So much is clear from an examination of the cases to which I have referred. However, that freedom of communication is not absolute. It is limited to what is necessary for the effective operation of that system of representative and responsible government provided by the constitution. Until Lange was decided, Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211 was probably authority for the implication of a similar freedom of communication arising out of State constitutional arrangements. Now Lange itself makes it clear that the freedom of communication implied in the Australian constitution, at least insofar as it impinges on the common law defence of qualified privilege in defamation, extends to protect the discussion of government or politics at State or Territory (or even local government) level (Lange 571 - 572).

Thus, the question which must be asked is whether it is necessary for the effective operation of the system of representative and responsible government that there be freedom to discuss the sort of matters discussed in the article sued upon even if that discussion is otherwise defamatory of a particular magistrate. Is there a clear nexus between the discussion in the article and the concepts of representative government?

47 Popovic was concerned with adverse comments made in a newspaper concerning a Deputy Chief Magistrate of the Magistrates Court of Victoria. After referring to observations by Spigelman CJ (with whom Priestley JA concurred) in John Fairfax Publications Pty Ltd v Attorney General New South Wales [2000] NSWCA 198; (2000) 181 ALR 694, 709. Bongiorno J said at [33]:

There needs to be some nexus between the discussion and the concept of representative government as it operates in this country for the extended privilege to be applicable.

[I]f the article sued upon in this case is in fact a discussion which contemplates or advocates the removal of the plaintiff from her position as a magistrate then it could be properly characterised as being a discussion of a government or political matter for the purposes of attracting the relevant qualified privilege. There is sufficient nexus between the discussion and the concept of representative government to protect such a discussion by the extended qualified privilege.

See also [44]. Ultimately, however, the media defendant in Popovic failed. It could not establish the sufficient criteria as to its reasonableness; see [57] and [65].

48 The question then is, by reference to a potential Lange defence: what in this case is the government or political matter(s) the defendant says arises, referable to the Media Publication and in the ninth and tenth publications?

Application of Lange principle to defence as pleaded

49 It can be seen that within the 33 particulars provided under par 16A, that there is no formulation or identification of a government or political matter or matters affecting the Australian people.

50 There is nothing actually formulated in the defence, even within its particulars, that is capable of being evaluated as possibly protected under this genre of qualified privilege based on the decision of the High Court in Lange.

51 Essentially, the reader is left to sift through pages of particulars searching for a possible government or political matter that may be lurking in the shadows. This is an unacceptable and embarrassing way of pleading. The deficiency comprises one of the main objections raised by the plaintiff. It must be upheld, and the plea, as a whole, struck out.

52 Furthermore, coming as it does at such a late stage in this action with a trial due to commence on 3 October 2011, in an action that has been on foot since January 2009, in the context of programmed orders for witness statements and the like for the trial, a late vague amendment plea of such character carries significant prejudice to the plaintiff in preparation for a complicated looming trial. The trial dates have already been once deferred at the defendant's request, due to his parliamentary commitments.

53 Before viewing the defendant's formulation of his other two qualified privilege defences as seen under pars 16A(a) and (c), I must refer to pars 17 and 19 of the defence. Paragraph 17 is responding to the Media Publication. It addresses pars 37 and 38 of the statement of claim. The plaintiff, under par 38, contends that the Media Publication to Mr Taylor was sent by the defendant with a view to its republication in the West Australian newspaper, as 'a natural and probable consequence of the defendant publishing the Media Publication to Taylor'.

54 To that averment under par 38, par 17 of the defence responds (with par 19 of the defence essentially being in identical terms as regards the defendant's stance as to the ninth publication, namely the article in the West Australian on 17 January 2009) as follows:

The defendant denies paragraphs 37 and 38 of the statement of claim, save that the defendant intended that the recipient [which as regards the Media Publication must mean Mr Taylor] publish an article to the effect that allegations of serious misconduct had been made about him by the plaintiff and her solicitor on Christmas Eve and that they refused to retract them and that he denied he had engaged in the misconduct.

55 The defence plea under par 19 concerning the newspaper article that was published in the West Australian, and as to which responsibility by way of republication is sought to be attributed to the defendant, contains essentially an identical plea as regards a limited intent on the part of the defendant as regards the Media Publication. Hence, the defendant accepts only a limited responsibility for what was ultimately published in the newspaper on 17 January 2009.

56 One of the plaintiff's fundamental objections against the recently raised qualified privilege defences is that they are inconsistent with the defendant's pars 17 and 19 pleas. Those defence paragraphs express the defendant's limited intent, as regards a republication of the Media Publication and the eventual (as contended) republication in the newspaper article of 17 January 2009. It will be seen that pars 17 and 19 are not pleaded in the alternative.

57 There is obvious force in this objection, as a matter of principle. There is no basis for the overt inconsistency in the defendant's pleaded positions. The defendant can hardly distance himself from the newspaper article he effectively briefed a journalist to write, then at the same time contend for the protection of reciprocal interest and duty communication defences of qualified privilege applicable to what was published based on the public's interest in receiving the substance of what he told Mr Taylor by facsimile.

58 As regards the ninth publication (in the West Australian newspaper on 17 January 2009), the same tripartite qualified privilege plea is found raised under par 21B. That paragraph repeats all of what is earlier found under par 16A of the defence substantively, including 16A's particulars as regards the 16A tripartite assertions as to qualified privilege.

59 Paragraph 21B, however, is introduced by a unique preface:

Further or in the alternative to 21 above, the defendant says that if it is found that the plaintiff [sic defendant] is liable for publication of the Ninth matter complained of (which is denied), that matter:

(a) was published on an occasion of qualified privilege at Common Law;

(b) was published under the extended occasion of qualified privilege at Common Law (Constitutional Defence);

(c) was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act 2005.

The defendant refers to and repeats the particulars in paragraph 16A hereof.

60 That is the extent of the qualified privilege plea raised by way of defence to the West Australian newspaper article of 17 January 2009.

61 Again no formulation of the constitutional defence, so called by reference to an alleged government or political matter, is seen. Furthermore, there is once again seen a base inconsistency between the defendant's pleaded assertion of qualified privilege as regards the newspaper article, and his plea under par 19 of his defence as regards the defendant's asserted limited intent concerning any republication that followed his Media Publication to Mr Taylor. This is impossible to rationalise consistently with the nature of the qualified privilege asserted for this newspaper publication. The inconsistency, grating when measured against par 16A, is intolerable as regards the ninth publication.

62 The 'kitchen sink' nature of the 33 paragraphs of particulars given at par 16A which are repeated by reference to par 21B, presents such that only pars 16A.1 through 16A.18 are applicable in a defence of common law qualified privilege. In structure, however, it seems everything is relied upon as regards a defence under s 30 of the Defamation Act, as well as for the so-called constitutional defence.

63 The last communication that is met by defences under pleas of qualified privilege is made against the tenth publication - the defendant's radio interview on 6PR, on 19 January 2009.

64 It will be remembered that the tenth publication to which this defence is raised was a morning AM radio interview in which the defendant participated with 6PR radio announcer, Simon Beaumont. The qualified privilege pleas as regards the tenth publication are found under par 25C of the defence:

Further or in the alternative to 25 above, the defendant says that if it is found that the defendant published the Tenth matter complained of (which is denied), the Tenth matter complained of:

(a) was published on an occasion of qualified privilege at Common Law;

(b) was published under the extended occasion of qualified privilege at Common Law (Constitutional Defence);

(c) was published on an occasion of qualified privilege pursuant to s 30 of the Defamation Act 2005.

65 Unlike for par 21B, which simply repeats the earlier particulars to par 16A by reference, there are discrete particulars provided to par 25C, specifically particulars 25C.1 through 25C.35.

66 Commencing at par 25C.3, the particulars are preceded by a heading, 'Particulars of Qualified Privilege: Common Law'. That heading seems to apply to the particulars up to and including par 25C.18. At that point there is seen a heading, 'The Constitutional Defence'. That would appear to apply only to the ensuing particulars 25C.19 through 25C.35. Interestingly, par 25C.19 reads:

The defendant repeats the particulars of common law qualified privilege.

The matter related to the matters of public interest being the matters the subject of the particulars of common law qualified privilege and to the extent such matters may not be contained within those particulars.

68 No identifiable government or political matter is actually identified. The pleading technique necessitates a trawling exercise through a morass of particulars to guess what government or political matter is sought to be raised. Again, this is embarrassing, and prejudicial to the plaintiff.

69 During the course of argument on 19 August 2011 it became clear that error and confusion had arisen as regards the par 25C particulars provided for this plea.

70 After the hearing, the position as regards particulars to par 25C was clarified by an email sent from the defendant's solicitor on 21 August 2011, in these terms:

The particulars to the statutory qualified privilege defence are in fact located at pars 25C.27 to 25C.35 of the pleading (the heading 'Section 30 of the Defamation Act 2005' has been omitted). However, as part of this defence, the defendant also seeks to rely on the particulars in the common law qualified privilege at 25C.3 to 25C.18. The latter is not expressly borne out by the pleading but is what the pleader intended and we wish that his Honour take that into account when considering this defence.

71 I have evaluated the matter on the basis subsequently clarified. However, the lack of a reference point set with any clarity, as regards the defendant identifying a constitutional defence matter, remains as an abiding, uncorrected and terminal problem.

72 Another of the complaints raised by the plaintiff is by reference to par 25C.1. The criticism is essentially one of 'bootstrapping', by reference to the defendant's assertion that 'hate mail' accusations of the plaintiff against him were now a matter of 'public notoriety', given that the West Australian had published the ninth matter complained of.

73 Bearing in mind that the Media Publication first started the publicity ball rolling, having been sent by the defendant to a political affairs journalist at the West Australian, the plaintiff says that for the defendant to seek to shelter behind a defence based on 'public notoriety' on the issue, as regards the tenth publication, would be to condone what is a wholly manufactured basis of defence.

74 The plaintiff raises other criticisms as regards the qualified privilege defences found in the plaintiff's written submissions of 18 July 2011.

75 Can the defendant fashion an arguable case that his decision to 'go public' by a media communication to Mr Taylor (evaluated on the basis of his knowledge that such a communication would likely cause an ensuing publication of a newspaper article in the terms of the ninth publication) falls within the scope of common law qualified privilege?

76 At this point it is helpful to reflect upon recent observations by Heydon J in Cush & Boland v Dillon [2011] HCA 30; (2011) 85 ALJR 865. His Honour said at [54]:

The defendant contended that the defamatory imputations were published on an occasion of qualified privilege. Two of the necessary conditions of that defence were that she had a duty to say or an interest in saying what she said, and that Mr Croft had a corresponding duty to hear it or a corresponding interest in hearing it.

77 In the present case, there is a complete absence of any basis to sensibly contend that the defendant had a duty to make the Media Publication to Mr Taylor or to participate in the 6PR radio interview. Nor is there any basis to argue that Mr Taylor had a corresponding interest in receiving that information. Likewise, 6PR or its listeners.

78 In Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; (2004) 218 CLR 366 and in Aktas v Westpac Banking Corporation [2010] HCA 25; (2010) 241 CLR 79, the High Court discussed the requirements of reciprocity of duty and interest necessary to sustain a common law qualified privilege defence: see Bashford [10] and [53] (McHugh J). In Bashford [71] McHugh J observed:

The interest must be a social, moral or economic interest that is sufficiently tangible for the public interest to require its protection.

Ordinarily the occasion for making a volunteered statement will be privileged only where there is a pressing need to protect the interests of the defendant or a third party or where the defendant has a duty to make the statement to the recipient.

[W]here neither life is in immediate danger nor harm to the person or injury to property imminent, the fact that the defendant has volunteered defamatory matter is likely to be decisive against a finding of qualified privilege.

(my emphasis in bold)

79 See also observations by Ipp JA in Bennette v Cohen [2009] NSWCA 60 [25] and the principles there summarised as regards common law qualified privilege.

80 A civil dispute between the plaintiff and the defendant over the anonymous communication entered the public arena because the defendant chose that arena by the Media Publication. He was not forced to air his 'linen' in public, or at least not at that time.

81 Clearly it was the defendant who chose to make public what was otherwise then a personal communication to him by way of the 23 December 2008 Lavan Legal letter of demand.

82 Whether a time might later have arisen, say after the issue of civil defamation proceedings threatened against him, at which such a course might have been open, is irrelevant speculation. Subjudice principles would then come into play as well.

83 Arguments attempted to be fashioned around the anonymous 'hate mail' (about which he strongly denies all association) nevertheless being wrongly attributed to him, evaluated against some longer term potential for a criminal conviction against the defendant, over some underlying serious criminal offence - possibly then, on conviction disqualifying the defendant from remaining in Parliament - were wholly remote and hypothetical future contingencies. Such speculations did not present as relevant on 13, 17 or 19 January 2009.

Statutory claim of qualified privilege (s 30 of the Defamation Act 2005)

84 Section 30 is a statutory defence of qualified privilege, formulated by reference to tripartite criteria. Section 30(1) provides:

There is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that -

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

85 Insofar as the Media Publication (to journalist Robert Taylor) is concerned, I repeat that it does not present to me as remotely arguable that a journalist held, at the time, any relevant s 30(1)(a) 'interest' or 'apparent interest' in receiving details of matters which were the subject of Lavan Legal's letter of demand sent on behalf of their client to the defendant on 23 December, and received on 24 December 2008.

86 The defendant was a local Parliamentarian who made a calculated decision to 'go public', and who used an existing relationship with a journalist to do so. That can hardly constitute the arguable satisfaction of a base need to establish a recipient's legitimate interest (or apparent interest) in the subject matter of what was communicated by the Media Publication.

87 In a s 30(1)(a) context, 'interest' does not equate to newsworthiness. Deliberately making public, by volunteering to a journalist, the content of a private communication as a media defence strategy cannot arguably qualify as being within the purview of this statutory defence. No case was cited to me to suggest that it could.

88 Those observations are equally applicable to the newspaper article subsequently written by Mr Taylor (from which the defendant under his pars 17 and 19 seeks to distance himself to an extent) and to the tenth publication (a following radio interview on 6PR).

89 The defendant voluntarily participated in the radio interview. To the extent that he, by his Media Publication, had earlier stirred some ensuing media interest consequent upon the West Australian article of 17 January 2009 (the ninth publication), his founding efforts cannot provide a legitimate basis to support his perpetuation of a media campaign of his own making.

90 No arguable basis for the invocation of the statutory defence of qualified privilege under s 30(1) is capable of being ascertained under pars 16A, 21B or 25C. They must be struck out on that basis, as well.

91 During the course of argument ranging across 21 July and 19 August 2011, I reserved my position upon some further matters arising out of the plaintiff's strike out application, as against the further re-amended substituted defence. I now render decisions in regards to those outstanding matters.

92 By par 6(e) of the further re-amended substituted defence the defendant has raised a further 'Polly Peck' imputation against the first publication. I am of the view that this imputation can stand. I first measure it against par 4.4 in the further further amended statement of claim, being the plaintiff's imputation that the plaintiff 'was of a character that would deceptively make false allegations about the defendant in his capacity as a parliamentarian and personally'. The defence Polly Peck imputation under par 6(e) is that the plaintiff 'was of a character that would make false allegations without reasonable grounds about the Defendant in his capacity as a Parliamentarian and personally'.

93 I note the absence of the word 'deceptively' in the par 6(e) imputation, plus the extra words 'without reasonable grounds' used as against the phrase 'false allegations'.

94 In my view, the imputation under par 6(e) is sufficiently close to and below the level of seriousness of the par 4.4 imputation in order to arguably meet the narrow Polly Peck criteria sanctioned in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387. For as long as the imputation under par 4.4 stands, the par 6(e) imputation may as well.

95 Next, as regards particulars of Polly Peck justification given to par 6(a) (imputations intended under pars 6(c) and 6(d) having been struck out), the defendant nevertheless pressed for the retention and relevance of particular 6.8:

The plaintiff's conduct resulted in the defendant's children feeling restrained to be frank with their father and in them concealing the truth.

96 The par 6(a) Polly Peck imputation that this particular is said to be relevant to support is in these terms:

[T]he plaintiff -

(a) had conducted herself in such a way as to knowingly damage the parental relationship between the defendant and his 2 young children;

(my emphasis in bold)

Accordingly, particular 6.8 is to be evaluated against par 6(a).

97 There is at the outset, as I see it, a deficiency inherent in par 6(a) arising from its non-distilled formulation and an attendant vagueness in the imputation, particularly by reference to the open-ended nature of the phrase 'in such a way'. But if par 6(a) were read as truncated, so as to effectively read that the plaintiff 'had knowingly damaged the parental relationship between the defendant and his 2 young children', this Polly Peck imputation might stand as a more coherent, distilled and arguably perjorative innuendo.

98 I can then evaluate the particular that is par 6.8 in that revised framework.

99 Paragraph 6.8 is seen to manifest an assertion of argued causation by reference to the phrase 'resulted in', used as against 'the plaintiff's conduct'.

100 Earlier pars 6.1 to 6.7 (particulars applicable to par 6(a)) identify the plaintiff's conduct in question to be her continuing relationship with the defendant's daughters, 'I' and 'M' after October 1997, her contact with them being maintained, it is said, against apparently objections of the defendant on the basis that he, as a divorced parent, 'believed that such contact was damaging to his relationship with his children' (see par 6.2 - to which objection was not taken). Paragraph 6.2 asserts as a particular that '[o]n a number of occasions the plaintiff informed the defendant that she would and had complied with the defendant's requests'. Perpetuation of the plaintiff's contact with 'M' is said to have continued to about December 2004 and into 2005, when 'M' was hospitalised. Due to ongoing, and from the defendant's expressed position, unwelcome, contact with his children, the plaintiff is said to have known to 'cause tension between the defendant and his daughter, ultimately leading ['M'] to lie to the defendant about the nature of her relationship with the plaintiff' (par 6.4, my emphasis).

101 Paragraph 6.5 of the particulars contains the assertion that the defendant's daughter 'I' would 'frequently insist to the defendant [that] he should marry the plaintiff', an outcome to which 'I' was led, it is put, by the plaintiff continuing to express grief at the breakup of her relationship with the defendant.

102 Paragraph 6.7 in the existing particulars asserts that, after termination of the relationship between the plaintiff and the defendant, the plaintiff confided in 'I' about matters not there identified. It is said that the plaintiff demanded that 'I' not disclose any of the unidentified (but confided) information to the defendant. This is then said to have led 'I' to believe that the plaintiff would come to harm if the defendant ever learned of the information which the plaintiff had allegedly imparted to 'I'. This is the existing particularised context in which the further particular under par 6.8 as to asserted causative consequences of the plaintiff's conduct with the defendant's daughters is now to be evaluated.

103 During argument, attention was focused upon the phrase 'restrained to be frank' used in par 6.8. Mr Connell for the defendant accepted, in effect, the inappropriateness of that terminology, suggesting that it could readily be amended to read 'resulted in the defendant's children feeling constrained from being frank with their father'. I will evaluate the matter on that basis. The phrase 'restrained to be frank' presents to me as vague and elusive, particularly assessed as a potential particular of justification to the alternative Polly Peck imputation that is par 6(a) in the defence.

104 Nevertheless, in my overall assessment par 6.8 even as revised by Mr Connell, still remains defective by reason of its fundamental lack of factual detail. Paragraph 6.8 presents as more in the character of a vague causative argument or assertion rather than by providing actual relevant facts. Obvious questions arise, such as 'constrained from being frank with their father' as regards what? No relevant detail is seen. To the extent that there is some detail in the earlier particulars 6.1 through 6.7, amended particular 6.8 adds nothing more. As regards a distinct limb to 6.8, 'and in them concealing the truth', again the obvious but unanswered question is 'concealing the truth about what'? There is again a total absence of any factual detail. The 6.8 plea carries the hallmarks of mere assertion, rather than disclosing tangible facts.

105 Accordingly, par 6.8 will be struck out as embarrassing.

106 It may also be observed that an 'absence of frankness' or a 'concealment of matters' by teenage daughters (assessed in particular factual instances, if ever identified) could hardly provide an arguable edifice to justify the ultimate assertion that the plaintiff had 'knowingly damaged the parental relationship between the defendant and his 2 young children' (my emphasis). There is an intellectual chasm between teenage conduct that is manifested on specific occasions and the evaluation of an allegedly 'damaged parental relationship' (whatever that inherently vague last phrase may actually mean in any particular context).

The defendant's pleas of triviality invoking a statutory defence under s 33 of the Defamation Act 2005

107 Section 33 provides:

It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

108 The defendant sought to raise a triviality defence to a number of the publications, including as against the (anonymous and strongly denied by the defendant) sixth, seventh and eighth publications of December 2008 (see par 13B).

109 On 21 July 2011, I concluded that the defence of triviality as regards the sixth, seventh and eighth publications should be struck out as untenable, save for one aspect, namely, a plea seen under the particulars to par 13B.5 [sic, 13B.6] which pleaded 'further and alternatively, the publication was anonymous and therefore had no credibility'. The substantive plea under par 13B was:

Further or in the alternative to paragraph 13 above, and pursuant to and within the meaning of s 33 of the Defamation Act 2005, the defendant says that the circumstances of publication of the Sixth Matter Publication were such that the plaintiff was unlikely to sustain any harm.

110 Whilst matters of alleged notoriety under pars 13B.1 through 13B.5 raised what I thought were wholly untenable assertions, that conceptual deficiency flaw does not present, I think, as regards an argument of triviality made by reference to the anonymity of the sixth, seventh and eighth publications. Such averments do raise matters properly for safer resolution at a trial. Therefore par 13B, particularised by reference to par 13B.6 only, will not be struck out. Like considerations prevail as regards par 13C in relation to anonymity as raised under par 13C.5 and for the eighth publication, under par 13E, as regards particulars under par 13B.6 only (as to the anonymity of that publication). Triviality could not however be arguably sustained as against the ninth (newspaper) or tenth (6PR) publications.

111 The triviality arguments as to anonymous publications arise for a more reliable determination within the context of a trial.

112 Furthermore, their late introduction does not, in my assessment, involve the introduction of more material that is so burdensome to the plaintiff as to be prejudicial to her preparation for trial, assessed at this time. The introduction of such defences only raises arguments concerning the perjorative likely effects (if any) of the anonymous 'hate mail' publications vis a vis the plaintiff (more correctly their argued non-effect) by reason of their inherent lack of credibility.

113 In summary, in addition to the conclusions expressed in my reasons delivered ex tempore on 21 July and 19 August 2011, pars 16A, 21B, 21C and 6.8 of the further re-amended substituted defence are struck out.

Sex Offenders Monitoring Act 2005

Aktas v Westpac Banking Corporation

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (179 paragraphs)

WOOKEY -v- QUIGLEY [No 3] [2011] WASC 227 (1 September 2011)

Parties

Legislation Cited (2)

Cases Cited (10)