Supreme Court of WA|2004-03-23|Before: Nicholas Hasluck J

Askew v Morris & Ors [2004] WASC 43 (23 March 2004)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : ASKEW -v- MORRIS & ORS [2004] WASC 43

Defamation - Application to strike out statement of claim - Capacity of words to convey imputations alleged - Turns on own facts

Cock v Hughes [2001] WASC 24

Harris v Warre (1879) 4 CPD 125

Marley's Transport Pty Ltd v West Australian Newspapers Ltd [2001] WASC 31

Vickers v Mayne, unreported; FCt SCt of WA; Library No 980391; 17 July 1998

Vitale v Bednall [2000] WASC 207

West Australian Construction Industry Redundancy Fund Ltd v Ortin [2002] WASC 185

Wiley v Farrell [2001] WASC 316

1 MASTER NEWNES: This is an application for leave to amend the statement of claim in a defamation action. The application is, in effect, to file a substituted statement of claim in terms of a minute of amended statement of claim filed on 16 February 2004, the existing statement of claim effectively being abandoned.

2 The second and fourth defendants opposed leave being granted in respect of one of the imputations sought to be pleaded. The first and third defendants objected to both of the imputations sought to be pleaded and, in addition, submitted that the proposed statement of claim disclosed no reasonable cause of action against them.

3 In the proposed statement of claim the plaintiff pleads that the first defendant is the Mayor of the City of Gosnells and the third defendant, the City of Gosnells, is an incorporated body pursuant to the Local Government Act. The fourth defendant is the publisher of a weekly newspaper, Comment News, which circulates in the Gosnells area and the second defendant is the editor of that newspaper.

4 It is alleged that in the edition of Comment News of 29 July 2003 the second and fourth defendants caused the following article to appear:

"CITY FIGHTS BACK

By Annemieke Vanderheld

'1. Gosnells City Council is fighting to clear its name and recoup legal costs it incurred contesting a defamation writ issued earlier this year by former councillor Thomas Askew.

2. At last Tuesday's Council meeting, Gosnells Mayor Pat Morris read a statement - prepared by the City's lawyers, Minter Ellison - to update ratepayers about the ongoing Supreme Court action.

3. Mr Askew, who re-ran unsuccessfully at the last Council elections in May, issued defamation writs to 22 defendants in February and March this year.

4. Writs of summons were served on the City of Gosnells and its Mayor, several councillors and executive staff, including chief executive, Stewart Jardine, and State Local Government Minister Tom Stephens.

5. The lawyers' statement read by Mayor Morris stated that Minter Ellison had been successful in its application to the Supreme Court for orders setting aside the two defamation writs (including a separate writ issued against Cr Julie Brown).

6. In the statement, it was explained that the application was based on Mr Askew's failure to comply with Supreme Court Rules on writs in defamation and his failure to serve the writs properly on councillors and officers named as defendants.

7. At a May 21 hearing, Justice Nicholas Hasluck ordered Mr Askew to prepare new writs and serve them on the defendants and ordered Mr Askew to pay the City's costs relating to the applications.

8. Justice Hasluck also ordered the former councillor to file and serve a statement of claim detailing his allegations within 21 days.

9. Minter Ellison confirmed that Mr Askew did not meet that deadline, which expired on June 12.

10. And the Mayor stated that the defendants relating to the City of Gosnells would contest Mr Askew's allegations of defamation once they had received his statement of claim.

11. In response to media queries about Minter Ellison's statement, Mayor Morris later told Comment News in a prepared reply that in the past two years the Council had dealt with a series of allegations from local personalities.

12. "These allegations have triggered assessments and investigations by various statutory and regulatory bodies, which have been found to be baseless," Mrs Morris stated.

13. The Mayor estimated the Council's financial costs at more than $200,000 as a result of the Council's dealing with such investigations, assessments and legal actions.

14. Mr Askew declined to comment when contacted by the Comment News.'"

5 The plaintiff alleges in par 7 of the proposed statement of claim that the first defendant published the words alleged in pars 11, 12 and 13 of the words complained of to the fourth defendant with the intention that they be republished by the fourth defendant, alternatively in circumstances in which that was the natural and probable consequence of their publication by the first defendant.

6 The plaintiff pleads in par 8 that the first defendant was authorised by the third defendant to publish the words to the fourth defendant.

7 The plaintiff alleges that pars 11, 12, 13 and 14 of the words complained of, in the context of the whole article, conveyed imputations that:

"(1) the plaintiff had made a series of baseless allegations against the Gosnells City Council, knowing they were baseless, which had resulted in investigations which cost the Council large sums of money;

(2) alternatively, the plaintiff had made a series of baseless allegations against the Gosnells City Council which had resulted in investigations which cost the Council large sums of money."

8 The second and fourth defendants submitted that the imputation pleaded in par 9.1 was not capable of being conveyed by the words complained of. The first and third defendants submitted that neither imputation was capable of being conveyed by the words complained of and, in addition, that the words attributed to the first defendant were not capable of conveying any imputation defamatory of the plaintiff.

9 The principles to be applied on an application of this sort are relatively well established. The Court will not grant leave to amend a pleading into a form which is liable to be struck out: Atkinson v Fitzwater [1987] 1 All ER 483, Sinclair v James [1894] 3 Ch 554. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319. In determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of the usual starting-point is the well-known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371:

"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:

'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

10 The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal, but equally the reader does not live in an ivory tower and is not inhibited by strict rules of construction: Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 - 259.

11 There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices. In that respect, Mason J said in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on their own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition."

12 An imputation itself must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678; Birmingham v West Australian Newspapers Ltd [1999] WASC 19 at [7].

13 The defendants submitted that there was nothing in the words complained of capable of conveying an imputation that the plaintiff knew that the allegations he made were baseless. It does not follow from the fact that, after investigation, an allegation is found to be baseless that the person who made it knew at the time he made it that it was baseless. It is not suggested in the words complained of that the allegations were not obviously baseless, as it is said that the fact the allegations were baseless was ascertained after costly investigations had been carried out by various statutory and regulatory bodies. There was nothing else pleaded which indicated that the plaintiff knew the allegations were baseless. Accordingly, it was submitted, no reasonable reader could understand the article to mean that the plaintiff had knowingly made baseless allegations.

14 The plaintiff's counsel contended that when the article is read as a whole, such an imputation is arguably open. He submitted that the specific comments in pars 11 to 13 of the statement of claim must be read in the light of the statements earlier in the article that the plaintiff had issued writs for defamation against the City of Gosnells and a number of councillors and members of staff, that the plaintiff had failed to comply with the Rules of Court in relation to those actions, and that the plaintiff had failed to serve a statement of claim detailing his allegations in accordance with an order of the Court. It was submitted that, against that background, a reasonable reader could infer that at the time he made the allegations against the Council the plaintiff had known that they were baseless. Counsel submitted that the introductory passage to par 11 of the words complained of - that is, the words "[i]n response to media queries about Minter Ellison's statement ..." - provided a clear link between the references to the plaintiff in the earlier part of the article and the "local personalities" referred to in the words attributed to Mayor Morris.

15 In my view, the article is not capable of conveying an imputation that the plaintiff made allegations which he knew to be baseless. The parts of the article dealing with the plaintiff's failings in relation to the defamation action do not provide any basis for a reasonable reader to reach such a conclusion. I would, therefore, refuse leave to amend the statement of claim in terms of par 9.1 of the minute.

16 The first and third defendants also submitted that par 9.2 of the minute did not distil any defamatory meaning, in that it did not, as it is required to do, sufficiently identify the precise act or condition of or attributed to the plaintiff: Monte v Mirror Newspapers (supra). Counsel for the first and third defendants also argued that an imputation that the plaintiff had made "a series of baseless allegations" was not capable of being conveyed by the words complained of. The article referred to "a series of allegations from local personalities". It was not suggested that the plaintiff himself had made the series of allegations; rather, it was suggested that a series of allegations had been made by a number of people.

17 Counsel for the plaintiff submitted that as the words of the article were general in their terms, the plaintiff was entitled to plead an imputation of like generality and he referred to Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. In that case, Gleeson CJ observed that the requirement that a plaintiff specify the "act or condition" which he claims was attributed to him is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation and that, in any given case, a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. Gleeson CJ said that the solution would usually be found in "considerations of practical justice rather than philology".

18 I am not persuaded that par 9.2 is so obviously untenable that it is liable to be struck out at this stage. In my view, it sufficiently defines the act or condition of or attributed to the plaintiff and the imputation pleaded is arguably defamatory of the plaintiff. I consider it is arguably defamatory to say of a person that he had made baseless allegations which had cost a local authority a substantial amount of money to investigate. I also consider it is sufficiently arguable that the article is capable of conveying to a reasonable reader the meaning that the plaintiff had made a series of allegations that the imputation should not be struck out at this stage.

19 Counsel for the first and third defendants submitted that, in any event, for the following reasons the statement of claim disclosed no reasonable cause of action against those defendants. The alleged liability of those defendants rests upon the words contained in pars 11 to 13 of the words complained of. But the words actually attributed to the first defendant in those paragraphs do not identify, and are not capable of identifying, the plaintiff as a person referred to by the first defendant as one of the "local personalities" who had made a series of baseless allegations. What is relied upon by the plaintiff as identifying him as one of those "local personalities", and therefore giving those words a meaning defamatory of him, is the first phrase in the paragraph numbered 11 - that is, the phrase "In response to media queries about Minter Ellison's statement" - which, the plaintiff says, links the reference to "local personalities" with the earlier part of the article dealing with his defamation actions. That phrase, however, is plainly editorial comment by the fourth defendant, not words spoken or necessarily authorised by the first defendant and accordingly the first defendant is not liable for any meaning defamatory of the plaintiff that they caused the words attributed to the first defendant to bear.

20 It is clear that A will not be liable for words which are innocent on their face simply because they are republished by B in a manner or context which gives them a defamatory meaning. The position is likely to be otherwise if A authorised their republication in that manner or context, or it was the natural and probable consequence of A's publication that they would be republished in that manner or context. But the mere furnishing by one person of some of the materials used by another in the preparation of a libellous article does not constitute a publication of it by the former if, when printed, the article as a whole conveys meanings different from the material furnished: "Gatley on Libel and Slander", 9th ed at par 6.32, and the cases there cited.

21 In my view, the proposed statement of claim does not disclose a cause of action against the first and third defendants. The plaintiff does not allege that the first defendant authorised the words attributed to her to be republished in the context of that editorial comment nor that it was a natural and probable consequence of their publication by the first defendant that they would be so republished. What is relied upon in the present case is an assertion that the first defendant published all of the words pleaded in pars 11, 12 and 13 of the words complained of. The introductory words of par 11, however, are not attributed to the first defendant and on their face are plainly editorial comment, not words published by the first defendant. It is, on the plaintiff's case, those introductory words that provide the nexus with the earlier part of the article, so as to cause a reasonable reader to identify the plaintiff as one of the "local personalities" referred to. It was, in my view quite correctly, not suggested on behalf of the plaintiff that there was anything in the actual words attributed to the first defendant which was arguably capable of causing a reasonable reader to make that connection. In other words, it was that editorial material, and that material alone, that caused the words attributed to the first defendant to bear any meaning defamatory of the plaintiff that they might be found to bear.

22 I do not accept the argument of counsel for the plaintiff that the fact asserted in the words complained of - that the first defendant made the comments attributed to her in response to media inquiries about the statement by Minter Ellison - would be sufficient to establish her liability. In the first place, that is not the way the case is currently pleaded. Secondly, if, as seemed to be suggested, the plaintiff's case is that the first defendant made the comments attributed to her in circumstances where they bore the meaning pleaded in par 9 of the proposed statement of claim, that will need to be expressly pleaded, with appropriate particularisation of the allegation.

23 At the least, I consider that the form of the proposed pleading is embarrassing in failing to make clear the basis upon which these defendants are said to be liable for the defamatory meaning said to arise because of the context in which statements attributed to the first defendant were published. In that connection, the allegation in par 7 of the minute that the first defendant published all of the words pleaded in par 11 of the words complained of is, on the face of those words, plainly untenable.

24 I would accordingly refuse leave to amend the statement of claim in the terms of the minute so far as it relates to the first and third defendants. If the claim against them is to be pursued, the plaintiff will have to bring in a fresh minute. If that is proposed, I will hear counsel on the time within which it should be done.

25 In relation to the claim against the second and fourth defendants, I would refuse leave to amend in terms of par 9.1 but would otherwise grant leave to amend in terms of the minute, as amended in the course of the hearing.

26 I will hear counsel on the precise terms of the orders and costs.

Askew v Morris & Ors [2004] WASC 43

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Judgment (44 paragraphs)

Askew v Morris & Ors [2004] WASC 43 (23 March 2004)

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Cases Cited (4)