Defamation - Libel - Application to strike out - Imputations arising from words complained of - Turns on own facts

Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185

Barwell v Adkins [1840] EngR 888; (1840) 1 MAN & G 807

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

NRMA Insurance Ltd v Flanagan [1982] 1 NSWLR 585

Parker v Copeman, unreported; SCt of WA (Master Seaman); Library No 6977; 16 December 1987

Pearson v Lemaitre [1843] EngR 666; (1843) 5 MAN & G 700

Ronci v Nationwide News & Anor, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118

Whitfield v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71

1 STEYTLER J: This is an application to strike out various paragraphs of the plaintiff's statement of claim in defamation proceedings.

2 The statement of claim pleads that the plaintiff is and was at all material times one of Her Majesty's Counsel and well known in and throughout the State of Western Australia. The defendant is the publisher of the West Australian newspaper, a daily newspaper with a wide circulation throughout Western Australia.

3 The words complained of appeared in the West Australian newspaper on Thursday 19 November 1998. They were to the following effect:

"Kids hit for six in nets as querulous QC lays down the law

STATE Liberal Party senior vice-president Ron Birmingham QC doesn't shirk the issue no matter how inexperienced the opposition.

Ron, a cricket lover from way back, recently took a Subiaco-Floreat junior team he coaches to the Hale School cricket nets for a training session.

Ron's competitive side came to the fore when he was confronted by the sight of two interlopers passing the time and wielding the willow in one of the 20 or so cricket nets available.

Departing from the usual erudite manner of a Queen's Counsel, the Premier's trusted committee representative told the two to bugger off in no uncertain terms. The two, all of 13, were having a bit of a hit while they waited for mum to pick them up and had no idea they were going to incur the wrath of a QC in full flight.

Naturally they vanished, possibly feeling that a night in the cells would have been preferable to another minute in the dock before the querulous QC."

4 The plaintiff pleads, in para 4 of the statement of claim, that those words, in their natural and ordinary meaning meant and were understood to mean:

"4.1 that Mr Birmingham [the plaintiff] acted in a manner unbecoming one of Her Majesty's Counsel;

4.2 that Mr Birmingham used obscene and unsuitable language to young children;

4.4 that Mr Birmingham had acted in a high-handed and unjustifiable manner at the Hale School cricket nets on the occasion described in the article."

5 The defendant seeks to strike out each of those imputations.

6 The imputation pleaded in para 4.1 is said to be vague and ambiguous, not defamatory and, in any event, not reasonably capable of arising from the matter complained of.

7 The principles which apply to complaints of that nature are not in issue. It is, firstly, well accepted that imputations will be struck out, at this stage of the proceedings, if they are untenable or manifestly groundless (Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319 and Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675). Next, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff was charged (Monte v Mirror Newspapers Ltd, supra, at 678) and should not be ambiguous or contain irrelevant matter (Taylor v Jecks, supra, at 316-319). Thirdly, whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law. The test is whether, under the circumstances in which the writing was published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense. (See Jones v Skelton [1963] 1 WLR 1362 at 1370-71 and Smith v Littlemore (1996) 15 WAR 289 at 294-295.) In deciding whether or not words are capable of conveying an allegedly defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation and will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction. (See Lewis v Daily Telegraph Ltd [1964] AC 234 at 258-259 and Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7.) Finally, an imputation should represent the final distillation of the alleged defamatory meaning. (See Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 15.)

8 As to the first of the complaints made in respect of imputation 4.1 it seems to me that to plead only that someone acted "in a manner unbecoming" a particular office falls short of setting out the final distillation of the alleged defamatory meaning. Rather, in my opinion, the pleader is required to say in what respect the plaintiff has been said to have acted in an unbecoming manner, at least in circumstances other than those in which the words complained of do no more than suggest that someone has acted in an unbecoming manner without saying in what respect or respects that was done. If that is not done the defendant will be left in doubt as to what is said to be the defamatory act or condition asserted of, or attributed to the plaintiff or with which he is charged by the article, as the word "unbecoming" conveys a wide range of possible attributes. (Cf Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154, Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138 and Gascoine v McGinty (1995) 14 WAR 542 at 546-7).

9 I consequently propose to strike out imputation 4.1 upon this ground.

10 Imputation 4.2 is complained of on the grounds that there is nothing in the words complained of to give rise to an imputation that the plaintiff used "obscene" language to young children, that the words "and unsuitable" are irrelevant and unnecessary in that they contain no derogatory imputation and, in the alternative, that the plea contains a rolled-up imputation.

11 As to the first of those complaints it seems to me to be arguable that the ordinary reasonable reader having the characteristics to which I have referred would understand from the newspaper article (and, in particular, the words "told the two to bugger off in no uncertain terms") that the plaintiff had used obscene language to the two children. Moreover, I do not consider that the words "and unsuitable" are irrelevant. There may, as counsel for the plaintiff has submitted, be occasions upon which (depending upon one's values) the utterance of an obscenity may not be the use of "unsuitable" language. Consequently, the use of the words "and unsuitable" make plain that the imputation is one to the effect that the alleged obscenity was expressed on an unsuitable occasion. For the same reasons I do not consider that the plea amounts to a "rolled-up" plea.

12 However the pleaded imputation, insofar as it suggests that the plaintiff used obscene and unsuitable language to young children generally, seems to me to go too far. The only imputation capable of arising from the words complained of is that he used language of that kind

to the two young children referred to in the article. It seems to me that the imputation should consequently be struck out on this limited ground.

13 This last complaint was made in respect of imputation 4.3 which is to the effect that the plaintiff bullied young children. That imputation is also said not to be reasonably capable of arising from the words complained of.

14 It seems to me, once again, that no imputation could arise from the words complained of that the plaintiff bullied young children generally. That said, it does seem to me that the words complained of are at least arguably capable of giving rise to the imputation that the plaintiff bullied the two young children referred to. So much might be drawn from the comment that they were told "to bugger off in no uncertain terms" and from the statement that they incurred "the wrath of a QC in full flight" in circumstances in which they appear to have been using only one of 20 or so cricket nets available.

15 However I will strike out the imputation upon the first of the grounds referred to.

16 Imputation 4.4 is said not to plead the final distillation of the alleged defamatory meaning. It is also said to be vague and embarrassing. Finally, the words "at the Hale School cricket nets on the occasion described in the article" are said to be irrelevant and unnecessary.

17 It seems to me that to say no more than that the plaintiff acted "in a high-handed and unjustifiable manner" lacks the requisite precision. The pleader should, in my opinion, say in what respect the plaintiff is said to have done so for reasons similar to those which I have expressed in respect of imputation 4.1. That, in itself, is sufficient to warrant the striking out of this imputation. I should add, however, that it seems to me that the words "at the Hale School cricket nets on the occasion described in the article" are unnecessary to the imputation.

18 Complaint is next made of the allegation, pleaded in para 8.4 of the statement of claim in support of a claim for exemplary damages, that the defendant published the words complained of with express malice.

"8.4 the Defendant published the words complained of with express malice: such malice is to be inferred from the

publication by the Defendant of the following defamatory matter:-

8.4.1 in the issue of the West Australian on 10th November 1998 the Defendant published of and concerning Mr Birmingham the following defamatory words:-

Party stalwart denies it's a case of jobs for the boys

A SENIOR Liberal Party figure is paid $445 a day to represent WA at meetings of the Centenary of Federation National Council.

He also collects nearly $20,000 a year to chair the State Centenary of Federation committee in Perth.

The committee meets monthly to coordinate celebrations around the State for the centenary of Australian federation in 2001.

Ron Birmingham QC, the WA Liberal Party's senior vice-president, was appointed chairman of the State committee by Premier Richard Court in April 1996.

Mr Birmingham said yesterday that the Salaries and Allowances Tribunal had boosted the chairman's remuneration last year from $12,000 to $19,600.

He said he spent three to four days a month dealing with matters arising from the State committee and the national council.

As the WA representative on the Centenary of Federation National Council he got a $445 a day sitting fee to attend meetings in Canberra, Melbourne and Sydney and to cover travelling time.

Mr Birmingham, who defended Perth obstetrician Victor Chan earlier this year, is also paid more than $200 an hour to chair the Land Valuation Tribunal which deals with appeals against rates and land tax assessments.

Mr Birmingham was appointed chairman of the tribunal in January 1997 by Finance Minister Max Evans for a three-year term.

The three-member tribunal dealt with about 50 cases last financial year.

Mr Birmingham is active in Liberal Party affairs and played a role in the John Howard-inspired attempt to bring defeated Curtin Independent Allan Rocher back to the party earlier this year.

The Opposition's spokesman on accountability, Eric Ripper, called on Mr Court yesterday to reveal the total amount paid to Mr Birmingham in his government posts.

"Don't Liberal Party QC's earn enough already without adding perks at the expense of taxpayers?" Mr Ripper said.

Mr Birmingham denied that he had been appointed because of his Liberal Party connections and threatened to sue The West Australian for defamation if it published such a suggestion.

He said the Centenary of Federation committee had a bipartisan approach and included former Labor leader Ian Taylor.

He had not taken the position for the money, which was a low rate for a queen's counsel.

"It's not a case of jobs for the boys at that rate," he said.'

8.4.2 the first words in their natural and ordinary meaning meant and were understood to mean that Mr Birmingham had, as a consequence of his membership of and office in the W.A. Liberal Party received:-

8.4.3 the words complained of contained a direct reference to the first words and in publishing the words complained of the Defendant thereby republished the first words;

8.4.4 in the issue of the West Australian on 3rd December 1998 the Defendant published of and concerning Mr Birmingham the following defamatory words:-

PETER THOMAS isn't going to take it any more. He's decided to take his fight to play cricket to the Supreme Court.

And he's going in hard. He's suing the Suburban Turf Cricket Association for professional, sporting and personal damages.

Alert readers may remember that in February, Peter, who was playing for Wembley Downs, was banned for nearly five years by the association after being found guilty of assaulting an umpire in a game against Nedlands.

The umpire was Nedlands player Roger Sands, who was standing at square leg, and just happens to be one of the association's tribunal chairmen. While Roger disqualified himself from the tribunal, Peter argued that he could never get a fair hearing after being reported by such a senior official.

That may or may not be so, but after he was suspended into the next millennium, the police stepped in and charged Peter with assault. That case was dismissed in October.

Peter, 37, cannot believe what he has gone through. Most damaging to him, is his reputation as the assistant principal at Sacred Heart College in Thornlie, one of the Catholic Church's bigger schools.

"I have never been more obsessed with something," he says. "Nobody has the right to do what they have done to me."

Be that as it may, going to the Supreme Court is not cheap, especially once you have hired a QC, who in this case is Ron Birmingham. Some legal brains around town are putting the cost at around $35,000.

Now that's a lot of biscuits for a school teacher to find but Peter says his challenge is being funded by "three well-known business identities with sporting interests.

8.4.5 the second words in their natural and ordinary meaning meant and were understood to mean that Mr Birmingham charged excessive fees."

20 The defendant complains that express malice is not reasonably capable of being inferred from mere publication of the matters pleaded in paras 8.4.1 and 8.4.4.

21 It seems to me that that submission is well made. It was not in dispute that the plaintiff is a public figure being, as the newspaper articles suggest, the WA Liberal Party's senior vice-president, a Queen's Counsel, and a man who is active in a range of other activities. Plainly, it seems to me, the fact of three newspaper publications mentioning such a person between 10 November 1998 and 3 December 1998 cannot, of itself, give rise to any inference other than one to the effect that the newspaper considers the plaintiff to be a person of interest to its readers.

22 The first of the three publications was that pleaded in para 8.4.1. That publication is said to be indicative of malice only for the reasons expressed in paras 8.4.2 and 8.4.3.

23 As to para 8.4.2 the words referred to are not, of themselves, said to be defamatory of the plaintiff. Rather they are criticised because they are said to convey that the plaintiff had, as a consequence of his membership of an office in the WA Liberal Party, received unjustified and excessive remuneration in a public position. If the article is capable of conveying those meanings that, on its own, is not in my opinion capable of giving rise to an inference of malice. While the article does quote an Opposition spokesman on accountability as suggesting that "Liberal Party QC's earn enough already without adding perks at the expense of taxpayers" that is coupled with a denial, by the plaintiff, that he had been appointed because of his Liberal Party connections and the reporting of his comment that the Centenary of Federation Committee had a bipartisan approach. There is consequently nothing, in my opinion, in an article of that kind, bearing in mind Mr Birmingham's status as a public figure, which could arguably give rise to an inference of malice on the part of the newspaper. Were the position otherwise then, it seems to me, an inference of malice might arise in virtually every instance in which criticisms were made or published by a newspaper in respect of public figures.

24 As to the allegation that the words complained of in para 3 of the statement of claim directly referred to and thereby republished the words which had been published on 10 November 1998, I am unable to accept that there was any such republication. The only references relied upon are those to the effect that the plaintiff is the State Liberal Party's senior vice-president and that he was "the Premier's trusted committee representative". Those references are not in themselves capable of republishing what had earlier been said of the plaintiff in the article on 10 November 1998.

25 As to the words pleaded in para 8.4.4 of the statement of claim I am unable to find anything in those words which is even arguably capable of being understood to be critical of the plaintiff. The article says no more than that it is not cheap to go to the Supreme Court, especially if a Queen's Counsel has been retained. While an estimate is made of the likely cost of doing so by some "legal brains around town" there is nothing in the article to suggest that that cost is excessive or that it was so high only because the plaintiff was the Queen's Counsel who had been retained.

26 I propose, consequently to strike out para 8.4 of the statement of claim.

27 It follows, from the aforegoing, that I propose to strike out paras 4.1, 4.2, 4.3, 4.4 and 8.4. I will give to the plaintiff leave to re-plead.