Tort - Defamation - Pleadings - Statement of claim - Applications to strike out paragraphs of further substituted statement of claim - Whether imputations pleaded are reasonably arguable - Whether imputations pleaded are repetitious - Whether pleadings for aggravated damages sufficient - Whether pleadings for special damages sufficient - Turns on own facts

Paragraphs 6, 10, 11, 12, 14, 18, 19, 20, 22, 26, 27, 28, 30, 34, 35, 36, 37, 38 and 39 of the further substituted statement of claim struck out

Bookbinder v Tebbit [1989] 1 WLR 640; [1989] 1 All ER 1169

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Clark v Ainsworth (1996) 40 NSWLR 463

Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716

Gascoine v McGinty (Unreported, WASC, Library No 950615, 14 November 1995)

Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1

Jones v Skelton [1964] NSWR 485; [1963] 3 All ER 952

Lewis v Daily Telegraph Newspaper Co Ltd [1964] AC 234

Markovic v White [2004] NSWSC 37

Nationwide News Pty Ltd v Warton [2002] NSWCA 377

Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266

Parker v Laws [2002] NSWSC 311

1 LE MIERE J: This action arises from radio broadcasts by the defendants which the plaintiff alleges are defamatory of him. The plaintiff complains of two broadcasts by the first defendant and one broadcast by each of the second and third defendants.

2 The plaintiff was, until August 2004, employed by the State of Western Australia as Chief Executive Officer of the Workers Compensation and Rehabilitation Commission constituted under s 94(1) of the Workers Compensation and Injury Management Act 1981 (WA). The Commission was authorised to use, and operate under, the trading name WorkCover. WorkCover is the statutory authority responsible for the administration of the workers compensation system in Western Australia. The Chief Executive Officer is appointed under the Public Sector Management Act 1994 (WA).

3 Each defendant has applied to strike out paragraphs of the further substituted statement of claim on a number of grounds.

4 The plaintiff filed his statement of claim on 31 May 2006. On 17 July 2006 the plaintiff amended his statement of claim.

5 Each of the defendants applied to strike out the plaintiff's amended statement of claim. Those strike out applications were heard and judgment delivered on 29 November 2006: Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266 (Neesham No 1). I made orders striking out paragraphs of the amended statement of claim pleading imputations, aggravated damages and special damages and granted to the plaintiff leave to re-plead. The plaintiff subsequently filed an amended substituted statement of claim on 13 April 2007 and a further substituted statement of claim on 11 May 2007. The defendants now apply to strike out paragraphs of the further substituted statement of claim of 11 May 2007 (the substituted statement of claim).

6 The first defendant, second defendant and third defendant each apply to strike out imputations pleaded by the plaintiff to arise from the first defendant's second broadcast, the second defendant's broadcast and the third defendant's broadcast respectively. Each defendant applies to strike out paragraphs of the substituted statement of claim pleading aggravated damages and special damages.

7 The plaintiff pleads at [13] of his substituted statement of claim that on or about 7 October 2002 the second defendant broadcast upon its radio station the second defendant's broadcast:

Hi, I'm Paul O'Halloran. WorkCover's put countless acts and claims at risk. Victims could lose their homes. Five hundred Supreme Court appeals all dealing with WorkCover's latest stuff-ups.

While our workers compensation system burns, Minister John Kobelke fiddles. And, WorkCover boss, Harry Neesham's response? O'Halloran's got it all wrong. He says. There aren't five hundred appeals, only one hundred. Ah, only one hundred. Are these people for real, or what? There's more. When Neesham was confronted about back-dating a deadline by 24 hours to stop you claiming compensation, he doesn't deny it. He uses a classic Nuremberg defence: 'I was just following orders'. I wonder whose orders. But wait, there's more: Kobelke's response to the appeals? Ooh, that's a tricky one; Kobelke's response to the back-dating? 'Don't ask me, I wasn't the minister when Neesham did it'.

I enjoyed watching Yes Minister on TV. And if the plight of countless innocent victims wasn't so serious this lunacy would all be laughable. But it's not, is it; Dr Gallop?

8 The plaintiff pleads that the second defendant's broadcast gives rise to the following imputations:

14.1 the plaintiff was lacking in moral rectitude in his performance of his duties of as CEO of Workcover and the regulation of workers compensation claims;

14.2 the plaintiff was negligent in his performance of his duties of as CEO of Workcover and the regulation of workers compensation claims; and

14.3 the plaintiff was incompetent in his performance of his duties of as CEO of Workcover and the regulation of workers compensation claims.

9 The plaintiff pleads that the third defendant's broadcast [22] and the first defendant's second broadcast [30] each give rise to the same imputations.

Second defendant's broadcast - are the imputations reasonably arguable?

10 The first issue is whether the second defendant's broadcast is capable of bearing the defamatory meanings pleaded by the plaintiff. The pleaded imputations should be struck out if they are untenable: that is, not reasonably arguable. In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 [6] Gleeson CJ, McHugh, Gummow and Heydon JJ approved the statement by McPherson JA in the Queensland Court of Appeal:

Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding the step [at] whatever stage it falls to be taken.

11 In Jones v Skelton [1964] NSWR 485; [1963] 3 All ER 952, the Privy Council said:

It is well settled that the question as to whether words which are complained of are capable of conveying a defamatory meaning is a question of law, and is therefore one calling for decision by the Court. If the words are so capable then it is a question for the jury to decide as to whether the words do, in fact, convey a defamatory meaning. 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, utterly unreasonable interpretation ... 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 (958).

12 In Favell Gleeson CJ, McHugh, Gummow and Heydon JJ said:

[10] In determining what reasonable persons could understand the words complained of to mean, the Court must keep in mind the statement of Lord Reid in Lewis v Daily Telegraph Ltd [1964] AC 234, 258:

The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.

[11] Lord Devlin pointed out, in Lewis v Daily Telegraph Ltd (277), that whereas, for a lawyer, an implication in a text must be necessary as well as reasonable, ordinary readers draw implications much more freely, especially when they are derogatory. This is an important reminder for judges. In words apposite to the present case, his Lordship said:

It is not ... correct to say as a matter of law that a statement of suspicion imputes guilt. It can be said as a matter of practice that it very often does so, because although suspicion of guilt is something different from proof of guilt, it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire; but it can be done. One always gets back to the fundamental question: what is the meaning for the words convey to the ordinary man: you cannot make a rule about that. They can convey a meaning of suspicion short of guilt; but loose talk about suspicion can very easily convey the impression that is a suspicion that is well founded (285).

13 In Neesham No 1 I said that the imputation of unfitness in the sense of impropriety or lack of moral rectitude is capable of arising from the first defendant's second broadcast [24]. I went on to discuss the contents of the broadcast and in particular the speaker's reference to the Nuremberg defence and the statement that the Minister's response to the backdating was to say: 'Don't ask me, I wasn't the minister when [the plaintiff] did it'. I then stated:

These matters taken together in the context of the broadcast as a whole are capable of being understood by an ordinary reasonable listener as being intended to convey the meaning that the plaintiff had acted improperly and reprehensibly in back-dating the deadline and was unfit to be the boss of WorkCover [26].

14 The imputation now pleaded by the plaintiff in [14.1] of the substituted statement of claim is different from the matters I referred to at [26] in Neesham No 1. The imputations now pleaded refer not only to the plaintiff's conduct in backdating the deadline but extend to his performance of his duties as CEO of WorkCover and the regulation of workers compensation claims.

15 The broadcast may be broadly divided into two parts. The first part refers to 'WorkCover's latest stuff-ups' which has led to 500 appeals to the Supreme Court. It also says that while the workers compensation system burns the Minister fiddles: that is, occupies himself with unimportant matters and neglects priorities during the crisis. The second part of the broadcast concerns the backdating of a deadline by 24 hours to stop people claiming compensation. It is said that the plaintiff backdated the deadline and when confronted with it used the Nuremberg defence: 'I was just following orders'.

16 Imputation [14.1] is that the plaintiff was lacking in moral rectitude in his performance of his duties as CEO of WorkCover and the regulation of workers compensation claims. The imputation is not that the plaintiff acted improperly, or with a lack of moral rectitude, in backdating the deadline: it is a charge of general impropriety in performing his duties as CEO of WorkCover.

17 In most cases, imputations which allege conduct of a particular instance and others which allege conduct of a general nature differ in substance. Different evidence may be required to justify an imputation of misconduct of a general nature than misconduct of a particular instance. It could not be suggested that a particular charge of wrongdoing necessarily may be regarded by the tribunal of fact as including a general charge of that sort of wrongdoing: Bookbinder v Tebbit [1989] 1 WLR 640; [1989] 1 All ER 1169, 1174 (Ralph Gibson LJ).

18 The question of whether a particular charge of wrongdoing carries a general charge may depend upon the context in which the words appear.

19 The first part of the broadcast arguably imputes at least incompetence or neglect but arguably does not impute impropriety. The second part of the broadcast arguably imputes impropriety. But it is impropriety in relation to a single act.

20 In Nationwide News Pty Ltd v Warton [2002] NSWCA 377, Heydon JA with whom Handley and Hodgson JJA agreed, discussed the proposition that a publication dealing with a specific incident is incapable of supporting a general imputation. Heydon JA said that this proposition

merely calls for close and careful attention to the specific circumstances with a view to determining whether the specific conduct alleged in a particular case, unlike specific incidents alleged in other cases, can support a general imputation [60].

21 In Nationwide News the court held that although the article alleged only that the plaintiff had behaved dishonestly in organising one boxing fight, the article could support an imputation of general dishonesty. Heydon JA said:

The article does not suggest that the plaintiff's act is other than an isolated act of dishonesty, but it does suggest that it is a most serious act of dishonesty ... While a person can do a dishonest thing without being thought a dishonest person, some things are so dishonest that one can infer that only a dishonest person would do them. The activities attributed to the plaintiff in the article are so extensive, serious and risky that it is open to ordinary reasonable readers to infer that only a dishonest person would have done them [61].

22 It is arguable that the second defendant's broadcast would be understood by a listener to make a general charge of impropriety in the performance of the plaintiff's duties as CEO of WorkCover. The broadcast is capable of being understood by an ordinary reasonable listener as being intended to convey the meaning that the plaintiff had acted improperly and reprehensibly in backdating the deadline to stop people claiming compensation they were entitled to. That is a serious act with grave consequences for people deprived of compensation they were entitled to. When combined with the first part of the broadcast it is arguably capable of conveying a charge of general impropriety in the conduct of the plaintiff's duties at WorkCover. The first part of the broadcast says that WorkCover has put countless claims at risk and that victims could lose their homes. The plaintiff is identified as the WorkCover boss. The broadcast says that when confronted with WorkCover's crisis the plaintiff sought to, in effect, dismiss the difficulties as being exaggerated. The speaker refers to the plaintiff in derogatory terms: 'Are these people for real, or what?'

23 Whether or not the broadcast does convey a charge of general impropriety, or lack of moral rectitude, in the conduct of the plaintiff's duties as CEO of WorkCover is a matter for the tribunal of fact. The general charge of impropriety is not unarguably incapable of arising from the broadcast.

24 The defendants submit that the phrase 'lacking in moral rectitude' is imprecise, vague and apt to cause confusion and that the imputation that the plaintiff was lacking in moral rectitude in his performance of his duties of as CEO of WorkCover and the regulation of workers compensation claims is therefore embarrassing and ought to be struck out.

25 In Neesham No 1, in the course of considering an imputation pleaded that the plaintiff is not fit to hold the office of CEO of WorkCover, I said that:

[i]ncompetence connotes lack of qualifications, ability or capacity. Unfitness may have similar connotations or may have connotations of being unfit by reason of lack of propriety or moral rectitude. Having regard to the words broadcast it is not clear whether the imputation is one of incompetence and unfitness in the sense of lack of qualifications, ability or capacity or whether the imputation is intended to also include unfitness by reason of lack of propriety or moral rectitude. The pleaded imputation is embarrassing for that reason [28].

26 It may be that my use of the phrase 'lack of moral rectitude' has prompted the plaintiff to use that phrase in the pleaded imputation. I used the words lack of moral rectitude to do no more than indicate one of the senses of the word unfitness. I was not in that passage attempting to draft imputations capable of arising from the broadcast.

27 The words 'the plaintiff was lacking in moral rectitude in his performance of his duties as CEO of Workcover and the regulation of workers compensation claims' fails to state the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged: Gascoine v McGinty (Unreported, WASC, Library No 950615, 14 November 1995) 9 (Steytler J).

28 The phrase 'lacking in moral rectitude' carries with it the problems often found in the use of the word 'improper' in imputations. While the use of the word 'improper', or the phrase 'lacking in moral rectitude', may be appropriate in other contexts, it is not appropriate in this. The defendant is not told what is the content of the impropriety or lack of moral rectitude charged. Nor is that made apparent by the context of the pleaded imputation.

29 For example, in the second defendant's broadcast Mr Paul O'Halloran says that WorkCover has put countless acts and claims at risk, the victims could lose their homes and that there have been 500 Supreme Court appeals, all dealing with WorkCover's latest stuff-ups. He went on to say that the Minister fiddles while the workers compensation system burns and then refers to the plaintiff as the WorkCover boss in critical terms. Mr O'Halloran asks rhetorically: 'Are these people for real, or what?' The content of the impropriety or lack of moral rectitude attributed to the plaintiff is not clear. It might be understood to be referring to the plaintiff being indifferent to the problems of the workers compensation system that is having disastrous effects upon its 'victims'. It might be understood to be referring to the stuff-ups and other actions or failure to act that has and is causing dire consequences to the 'victims'. It might be understood to be referring to the plaintiff's actions in backdating the deadline that stopped people claiming compensation which gives rise to a general charge of impropriety because of the seriousness and consequences of that act. It might be understood to refer to some combination of these charges.

30 Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 137 said that the requirement that a plaintiff must specify the act or condition which he claims was attributed to him is one which in its practical application raises questions of degree. His Honour went on to say that 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 the 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. As his Honour said the solution will usually be found in 'considerations of practical justice rather than philology'.

31 The imputation that the plaintiff was lacking in moral rectitude in his performance of his duties of as CEO of WorkCover and the regulation of workers compensation claims does not make clear what is comprehended by the alleged imputation of lack of moral rectitude with the consequence that it will, if allowed to stand in its present form, raise confusion and uncertainty as to its meaning. Neither the court nor the defendant knows the meaning which the plaintiff alleges to have been conveyed by the broadcast. The imputation should be struck out for that reason.

32 There is a further reason why the imputation should be struck out. The imputation is of lack of moral rectitude in the performance of the plaintiff's duties as CEO of WorkCover and in the regulation of workers compensation claims. If the words 'and the regulation of workers compensation claims' does not add anything to the plaintiff's duties as CEO of WorkCover then they are embarrassing and should be struck out. Alternatively, if they are intended to refer to some separate sphere of activity or function by the plaintiff then the broadcast does not give rise to the imputation that the plaintiff acted with a lack of moral rectitude in the performance of his duties in some sphere of activity or function other than as CEO of WorkCover. The imputation is embarrassing in its present form and should be struck out.

33 Imputation 14.2 is that the plaintiff was negligent in the performance of his duties as CEO of WorkCover and the regulation of workers compensation claims.

34 The broadcast is capable of giving rise to an imputation to the effect that the plaintiff was negligent in some way. In saying that, I am not attempting to draft an imputation that might arise from the broadcast. The first part of the broadcast and the reference to 'WorkCover's latest stuff-ups' would arguably be understood by an ordinary reasonable listener to refer to frequent or repetitive mistakes. The reference to the 500 appeals would arguably be understood by a reasonable ordinary listener to mean that WorkCover has made numerous mistakes. The reference to putting claims at risk and that victims could lose their homes arguably would be understood by an ordinary reasonable listener to mean that the mistakes are big mistakes with serious consequences. The reference to the workers compensation system burning whilst the Minister fiddles would arguably be understood by an ordinary reasonable listener to refer to being occupied with unimportant matters and neglecting important and serious problems with the workers compensation system that are causing serious and harmful consequences. When the reference to the Minister fiddling whilst the compensation system burns is followed immediately by a derisory reference to the response of the WorkCover boss, the plaintiff, that part of the broadcast might arguably be understood by ordinary reasonable listeners to mean that the plaintiff was negligent. That is, the plaintiff had failed to exercise proper care in carrying out his duties. The article finishes by referring to a television programme, 'Yes Minister'. I take judicial notice that the television programme features struggles by the Minister to formulate and enact legislation or effect changes which are opposed by the public service and in particular the head of the department. Arguably that would add to the ordinary reasonable listener's understanding that it is the equivalent of the head of the department, the plaintiff, who is responsible for WorkCover's situation. Further, the reference to the situation being laughable if it was not so serious might also be understood by a reasonable listener to be pointing to negligence.

35 The imputation is of negligence in the performance of the plaintiff's duties as CEO of WorkCover and in the regulation of workers compensation claims. If the words 'and the regulation of workers compensation claims' does not add anything to the plaintiff's duties as CEO of WorkCover then they are embarrassing and should be struck out. Alternatively, if they are intended to refer to some separate sphere of activity by the plaintiff then the broadcast does not give rise to the imputation that the plaintiff was negligent in the performance of his duties in some sphere of activity other than as CEO of WorkCover. The imputation is embarrassing in its present form and should be struck out.

36 Imputation 14.3 is that the plaintiff was incompetent in the performance of his duties as CEO of WorkCover and the regulation of workers compensation claims.

37 The second defendant's broadcast is capable of giving rise to an imputation to the effect that the plaintiff is incompetent in some way. Again, I am not attempting to draft an imputation that might arise from the broadcast. The reference to stuff-ups, appeals, victims, the workers compensation system burning, the Minister fiddling, the plaintiff's response, backdating the deadline, Yes Minister, countless innocent victims, lunacy and laughable are in their context arguably capable of giving rise to an imputation of incompetence.

38 Like the imputation of lack of moral rectitude and negligence, the imputation of incompetence is 'in the performance of the plaintiff's duties as CEO of WorkCover and in the regulation of workers compensation claims'. The imputation is embarrassing in its form. The imputation fails to distil for the defendant what is said to be the defamatory sting. The pleading fails to state the precise act or condition asserted of or attributed to the plaintiff or with which he is charged.

39 The defendants submit that the imputations of negligence and incompetence are not materially different from one another, rendering imputations 14.2 and 14.3 repetitious. The third defendant submits that if there is a difference in substance between the imputations then the imputation of negligence cannot arise from the matter complained of because if anyone owes a duty to workers or the public generally in respect of the matter complained of, it is the government and the responsible Minister, both of whom are referred to in detail in the matter complained of and any negligence arises from the inadequacy of the workers compensation system rather than its implementation. Similarly, the first defendant submits that it is not arguable that the first defendant's second broadcast, which is in the same terms as the second defendant's broadcast, imputed that the plaintiff was under any duty to take care, which duty he failed to exercise.

40 The meaning of the words is to be determined by the sense in which fair-minded ordinary reasonable persons in the general community would understand the broadcast words. The ordinary reasonable person is taken to be a person of average intelligence who approaches the interpretation of the broadcast in a fair and objective manner. The ordinary reasonable person approaches the interpretation of the publication in the light of the person's general knowledge and experience of worldly affairs, but the ordinary reasonable person does not approach the interpretation of the words in the same way that a lawyer might interpret the words, which would be in a logical, precise or analytical manner, or only draw implications if they are both necessary and reasonable: Lewis v Daily Telegraph Newspaper Co Ltd [1964] AC 234, 277. The ordinary reasonable listener would understand an imputation of negligence to mean that the plaintiff failed to take proper or reasonable care. An ordinary reasonable listener would not analyse the matter by reference to concepts of duty of care, breach, foreseeability and causation.

41 I have found that it is not unarguable that the ordinary reasonable listener would understand the broadcast to mean that the plaintiff was negligent in the ordinary sense of that word, or would understand the broadcast to mean that the plaintiff was incompetent.

42 The plaintiff must plead imputations that differ in substance. One test for determining this issue is to ask what the defendant would need to prove in order to justify each of the meanings. If the same evidence would amount to justification in relation to each meaning, it would be open to the defendant to argue that they did not differ in substance. However, the test will not always be determinative. One such illustration was given by Kirby J in Parker v Laws [2002] NSWSC 311 where his Honour said:

People can and do draw more than one conclusion from the same statement of fact. Assume that it was reported that a barrister had deliberately insulted a judge. That report may carry a number of imputations. It may suggest that the barrister was guilty of boorish behaviour. It may also suggest incompetence, it being the barrister's function to persuade the judge to his or her point of view. The same facts would prove each imputation, even though each differs in substance [13].

43 The imputation of incompetence differs in substance from that of negligence. Incompetence connotes lack of qualifications or capacity. Negligence connotes lack of proper care. It is for the tribunal of fact to determine whether the broadcast gives rise to an imputation of negligence and incompetence, or one or the other or neither.

44 The first defendant's second broadcast is pleaded at [29] of the substituted statement of claim. It is in the same terms as the second defendant's broadcast. The plaintiff pleads at [30] that the first defendant's second broadcast gives rise to the same imputations as it pleads at [14] that the second defendant's broadcast gives rise to.

45 The imputations pleaded at [30] will be struck out for the same reasons as those pleaded at [14].

46 At [21] of the substituted statement of claim the plaintiff pleads that on or about 10 October 2002 the third defendant broadcast upon its radio station the words there set out. The words complained of were spoken by Mr Paul O'Halloran in the course of a programme hosted by Mr John McNamara. The plaintiff now pleads the whole of the interview.

47 At [22] the plaintiff pleads that the third defendant's broadcast gives rise to the same imputations as those pleaded in [14] in relation to the second defendant's broadcast and [30] in relation to the first defendant's second broadcast. Those are imputations of a lack of moral rectitude, negligence and incompetence in his performance of his duties of as CEO of Workcover and the regulation of workers compensation claims.

48 Each of the imputations pleaded in [22] of the substituted statement of claim seeks to attribute to the plaintiff a condition: namely that the plaintiff was lacking in moral rectitude, was negligent or was incompetent, which is then followed by the phrase in respect of each imputation 'in his performance of his duties as CEO of Workcover and the regulation of workers compensation claims'. The third defendant submits that the phrase is impermissibly imprecise such that each of the imputations pleaded in [22] is embarrassing and ought to be struck out.

49 For the reasons stated in relation to the first defendant's second broadcast and the second defendant's broadcast, the pleading is embarrassing insofar as it refers to 'in his performance of his duties as CEO of Workcover' and 'in the regulation of workers compensation claims'. Each of the imputations should be struck out for that reason.

50 The third defendant submits that the imputation pleaded in [22.1] fails to distil for the defendant what is said to be the defamatory sting, it fails to state the precise act or condition asserted of or attributed to the plaintiff or with which he is charged. The imputation does not make clear in its terms what is comprehended by the alleged imputation of lack of moral rectitude.

51 Reference to the broadcast compounds the difficulty. For example, in the broadcast Mr O'Halloran says that WorkCover is a disaster that has ruined people's lives and that there have been hundreds of complaints a week about WorkCover. He then says that WorkCover is financed by insurance companies and he believes it is actually a front for them. He says that the medical panels are often stacked with biased insurance doctors. Mr O'Halloran then says that at the top of WorkCover is the plaintiff whose claim to fame was to backdate a deadline to stop people claiming later that day. In the context of the broadcast the imputation might be understood to mean that the plaintiff has acted improperly in acting as a front or cover for insurance companies. Alternatively, the imputation might mean that the plaintiff acted improperly or with a lack of moral rectitude in backdating the deadline. Another alternative might be that the intended meaning is that the plaintiff acted improperly in backdating a deadline for the purpose of stopping people claiming later that day. Yet another alternative is that the words might mean that the plaintiff acted improperly or with a lack of moral rectitude in backdating a deadline that had the effect of stopping people claiming later that day.

52 The imputation fails to state the precise act or condition asserted of or attributed to the plaintiff or with which he is charged. It should be struck out.

53 Imputation [22.2] is that the plaintiff was negligent in his performance of his duties as CEO of WorkCover and the regulation of workers compensation claims. Imputation [22.3] is the same except that it attributes incompetence rather than negligence to the plaintiff in the performance of his stated duties and function.

54 The third defendant submits that the notion of negligence is not different in substance to the notion of incompetence. Accordingly, the third defendant submits that the imputation is pleaded in [22.2] and [22.3] should be struck out for that reason.

55 I do not accept that submission. The notion of negligence is different from that of incompetence.

56 The third defendant further submits that an imputation that the plaintiff was negligent cannot arise from the matter complained of because if anyone owes a duty to workers or the public generally in respect of the matter complained of, it is the government and the responsible Minister, both of whom are referred to in detail in the matter complained of and any negligence arises from the inadequacy of the workers compensation system rather than its implementation. I do not accept that submission. It is not unarguable that an ordinary reasonable listener would understand the third broadcast to attribute negligence to the plaintiff.

57 The plaintiff claims aggravated damages against each defendant. The plea against the first defendant in the further substituted statement of claim is as follows:

1. The first defendant's conduct in publishing the First Defendant's First Broadcast was lacking in bona fides, unjustifiable and unreasonable in a manner that has aggravated the hurt, distress and damage to the plaintiff, in that the first defendant failed to exercise effective editorial control over the First Defendant's First Broadcast.

(a) The First Defendant's First Broadcast was self-evidently defamatory of the plaintiff.

(b) As the operator of a commercial radio station the first defendant had or ought to have had control over the content of its broadcasts.

(c) The First Defendant broadcast the First Defendant's First Broadcast without ensuring that the First Defendant's First Broadcast was not such that its publication might foreseeably cause the plaintiff to suffer loss or damage.

(d) The First Defendant's First Broadcast concerned, inter alia, the plaintiff's conduct and the organisation of which the plaintiff was the CEO.

(e) It was open to the first defendant to contact the plaintiff to seek comment with regard to the issues raised in the course of the First Defendant's First Broadcast prior to its broadcast.

(f) The first defendant did not seek any comment from the plaintiff with regard to the issues raised in the course of the First Defendant's First Broadcast prior to its broadcast.

(g) The first defendant broadcast the First Defendant's First Broadcast without expurgating those parts of the First Defendant's First Broadcast which were defamatory of the plaintiff.

1. The First Defendant's conduct has been lacking in bona fides, unjustifiable and unreasonable in a manner that has aggravated the hurt, distress and damage to the plaintiff, in that the first defendant has failed to apologise to the plaintiff, despite an apology being self evidently called for.

(a) On 4 November 2005 the plaintiff's solicitors wrote to the first defendant, inter alia, pointing out that the First Defendant's First Broadcast was defamatory of the plaintiff and that the plaintiff had suffered and continued to suffer damage as a result of the first defendant's publication of the First Defendant's First Broadcast.

(b) The first defendant knew or ought reasonably to have known that the First Defendant's First Broadcast was defamatory of the plaintiff.

(c) The First Defendant's First Broadcast was published in circumstances such that the plaintiff had no opportunity to respond.

(d) The first defendant knew or ought reasonably to have known that an apology would ameliorate the damage suffered by the plaintiff as a result of the first defendant's publication of the First Defendant's First Broadcast.

(e) By reason of its knowledge and experience as the operator of a commercial radio station the first defendant knew or ought reasonably to have known that in the circumstances an apology was self evidently called for.

1. The matters referred to in paragraphs 10 and 11 hereof were so understood and appreciated by the plaintiff as to aggravate the hurt and damage to the plaintiff, and the plaintiff claims aggravated damages against the first defendant.

58 The plea against the second defendant at [18] - [20] and against the third defendant at [26] - [28] are in the same terms.

59 In [10], [18] and [26] of the substituted statement of claim the plaintiff alleges that the relevant defendant failed to exercise effective editorial control over the content of the matter complained of. The third defendant submits that that is, in substance, nothing more than a complaint that the defendant has published defamatory matter of the plaintiff. It is submitted that it is not a matter of aggravation that the defendant broadcast the matter complained of; that is simply the plaintiff's cause of action and nothing more. Accordingly, the third defendant submits that [26] discloses no reasonable cause of action and should be struck out.

60 The first defendant submits that [10] makes a bald plea to the effect that the first defendant did not exercise effective editorial control over the first broadcast however the particulars are not particulars of this material fact. It is submitted that there are otherwise no particulars of how the first defendant's conduct was allegedly lacking in bona fides, was improper or unjustifiable. Similarly, the second defendant submits that the plaintiff's statement of claim fails to advance sufficient material averrements to support the contention that the second defendant's conduct was improper, unjustifiable or lacking in bona fides. It is submitted that the plaintiff simply advances the bald allegation and further allegations under the heading 'Particulars' which are not properly particulars but rather either conclusions or allegations of material fact.

61 The plaintiff submits that the failure to exercise effective editorial control is capable of giving rise to an award of aggravated damage: Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 [402] (Gillard AJA).

62 In Popovic's case the plaintiff, a deputy chief magistrate, sought damages for libel in respect of an article written by Mr Bolt and published in the first appellant's newspaper. The plaintiff relied on three imputations: namely, that she had subverted the law by prejudging a hearing, that she had behaved outrageously by bullying a prosecutor and that she had so misconducted herself that her removal from office was warranted. The appellants appealed, amongst other things, against an award of aggravated damages. The matters which the trial judge took into account in awarding aggravating damages were:

• pleading and persisting in the defences of justification and the statutory defence of fair and accurate reporting of court proceedings;
• Mr Bolt's refusal to retract and apologise if he had inadvertently libelled the plaintiff;
• the evidence of Mr Bolt that he did not believe the plaintiff's evidence concerning an adjournment application and thereby accused her of lying on oath in the proceeding;
• the attack made during the trial on the plaintiff's credibility;
• the proprietor's failure to exercise any effective editorial control over Mr Bolt;
• the defendant's failure to give the plaintiff the opportunity to respond to the attack upon her before the article was published.

It was then submitted that the proprietor's failure to have effective editorial control over Mr Bolt cannot go to aggravate the hurt. The question arose as to whether it was a reckless publication. In my opinion, the failure to investigate a reckless publication or a failure to exercise editorial control may in the circumstances constitute unjustifiable conduct and may aggravate the damages, especially when no evidence was called by the proprietor as to the steps taken to consider a journalist's article. Further, it was submitted that there was no evidence that if Ms Popovic had been asked to respond she would have done so. Again, that is a matter which in the circumstances of the case may or may not constitute unjustifiable conduct. In my opinion, the defendants have failed to show that his Honour erred in taking that into account [402].

64 The plea in [10] of the substituted statement of claim is that the broadcast was lacking in bona fides, unjustifiable and unreasonable in that the first defendant failed to exercise effective editorial control over the broadcast. Gillard AJA in Popovic said that a failure to exercise editorial control may in the circumstances constitute unjustifiable conduct and may aggravate the damages.

65 There are no circumstances pleaded in [10] or the particulars that could justify an award of aggravated damages. Particular (d) does no more than identify the subject matter of the broadcast or the person or organisation to which it relates. Particulars (a), (b), (c) and (g) amount to no more than a claim that the broadcast was defamatory of the plaintiff and that the first defendant could have prevented the broadcast, or that part of it that was defamatory of the plaintiff but did not do so. Particulars (e) and (f) are to the effect that the first defendant could have but did not seek any comment from the plaintiff prior to the broadcast.

66 That is a far cry from the circumstances of the Popovic case. In Popovic the journalist, Mr Bolt, had made many factual errors in the article. Gillard AJA said that a proper investigation of the facts would have revealed very early in the litigation that there were many factual inaccuracies in the article [397]. Gillard AJA said that the question arose whether the publication was reckless and it was in that context that the failure of the publisher to investigate the reckless publication or a failure to exercise editorial control may constitute unjustifiable conduct and may aggravate the damages.

67 The plaintiff accepts that to be entitled to aggravated damages he must establish that the broadcast complained of was lacking in bona fides, unjustifiable or unreasonable. That a publisher failed to exercise effective editorial control does not of itself establish that the broadcast was lacking in bona fides, unjustifiable or unreasonable but it may be if there are circumstances which make it so. There are no circumstances set out in the particulars that make it so. For example, it is not, as in Popovic's case, alleged that there were factual inaccuracies that the publisher should have been aware of or investigated.

69 Paragraphs 11, 19 and 27 plead that the defendants' conduct has been lacking in bona fides, unjustifiable and unreasonable in that the defendant has failed to apologise to the plaintiff, despite an apology being self-evidently called for.

70 I discussed the effect of a failure to apologise in the context of a claim for aggravated damages in Neesham No 1. The mere failure to make an unsolicited apology will not usually justify an award of aggravated damages. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 66 Mason CJ, Deane, Dawson and Gaudron JJ said that the absence of an apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that the want of an apology itself aggravates the plaintiff's injury. If the absence of an apology forms part of, or is accompanied by, a course of unjustifiable and improper conduct on the part of the defendant, it may aggravate damages: Clark v Ainsworth (1996) 40 NSWLR 463. A refusal to apologise may give rise to aggravated damages where the refusal is unjustifiable or improper: Clark v Ainsworth; Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 [167]; Markovic v White [2004] NSWSC 37 [26].

71 In Popovic's case Gillard AJA said that the cases clearly established that a failure to apologise and express regret, depending on the circumstances, can constitute improper or unjustifiable conduct [399].

72 It is necessary then to consider the matters set out in the particulars to see if they disclose circumstances which might arguably constitute circumstances which renders the defendants' failure to apologise improper or unjustifiable conduct justifying an award of aggravated damages.

73 Particular (a) is that on 4 November 2005, that is, three years after the broadcast, the plaintiff's solicitors wrote to the first defendant pointing out that the broadcast was defamatory of the plaintiff and that the plaintiff had suffered and continued to suffer damage as a result of the publication. It is not pleaded that the plaintiff pointed out any factual errors in the publication or even that the plaintiff asked for an apology. The failure to apologise in those circumstances alone could not justify an award of aggravated damages.

74 Particular (b) is that the defendant knew or ought reasonably to have known that the broadcast was defamatory of the plaintiff. There may be circumstances where publishing matter known to be defamatory may be lacking in bona fides, unjustifiable or unreasonable and aggravate damages. However, that the defendant knew or ought reasonably to have known that the broadcast was defamatory is not of itself sufficient. A defendant may have good grounds for believing the matters broadcast to be justified even though it knew they were defamatory.

75 Particular (c) is that the broadcast was published in circumstances that the plaintiff had no opportunity to respond. On its face, that is not a particular relating to the failure of the defendant to apologise and could not of itself amount to conduct lacking in bona fides, unjustifiable or unreasonable. It cannot be the case that anytime a defendant publishes defamatory material without giving the plaintiff an opportunity to respond, his conduct is lacking in bona fides, unjustifiable or unreasonable.

76 Particular (d) is that the defendant knew or reasonably ought to have known that an apology would ameliorate the damage suffered by the plaintiff as a result of the publication. It may be that an apology would ameliorate the damage suffered by the plaintiff. In most cases an apology would ameliorate the damage suffered by the plaintiff as a result of a defamatory publication. However, that does not mean that an apology is self-evidently called for or a failure to apologise is lacking in bona fides, unjustifiable or unreasonable because an apology would have ameliorated the damages suffered by the plaintiff.

77 Particular (e) is that by reason of its knowledge and experience as the operator of a commercial radio station the defendant knew or ought reasonably to have known that in the circumstances an apology was self-evidently called for. That is little more than an argumentative conclusion.

78 The plaintiff has failed to set out circumstances which cause an apology to be self-evidently called for. Paragraphs 11, 19 and 27 should be struck out.

79 Where a plaintiff has suffered financial loss as a result of a publication he is entitled to claim for the loss as special damages. The plaintiff must prove that the defamatory publication is the cause of the financial loss. The first defendant submits that the plaintiff has not pleaded or established any causative link between the broadcasts and either the Minister's failure to renew the plaintiff's contract as CEO of WorkCover or to appoint him as Chairperson of the WorkCover Commission.

80 In [37] the plaintiff pleads that he had a reasonable expectation that his contract with WorkCover would be renewed but it was not renewed upon its expiry on or about 10 August 2004. It is then pleaded that on or about 10 August 2004, after the plaintiff was advised that the contract would not be renewed, the Minister advised the plaintiff that he believed the plaintiff was competent and had performed well but he was aware of the defendants' broadcasts and each of those broadcasts had acted on the Minister's mind such as to cause him to decide not to renew the contract or to appoint the plaintiff to any other position associated with WorkCover.

81 The pleading has been reformulated after I struck out the previous pleading of special damages in Neesham No 1. However, the pleading in [37] remains confusing and is not tenable in its current form. The paragraph does not plead that the Minister did not renew the plaintiff's contract because of the broadcasts complained of. The paragraph pleads that the Minister advised the plaintiff that each of the broadcasts had acted on his mind such as to cause him to decide not to renew the contract. That is not the same thing. It is the truth of the statement attributed to the Minister which is the material fact. That the Minister made the statement is evidence from which the court might be invited to find that the statement was true and that the broadcasts did cause the Minister to decide not to renew the plaintiff's contract.

82 There are particulars joined to the plea in [37]. Each of the particulars states a belief held by the Minister. The material fact of which they are alleged to be particulars is that the Minister advised the plaintiff of the matters set out. Particulars of matters believed by the Minister are not, in this context, particulars of what the Minister is said to have advised the plaintiff. Paragraph 37 in its current form is embarrassing.

83 In my view the plaintiff must plead, if he is able to, facts, to the effect that the Minister did not renew the plaintiff's contract as a result of the broadcasts complained of. Furthermore, facts must be pleaded which establish that it was the Minister's decision that caused the plaintiff's contract not to be renewed. In [1] of the substituted statement of claim it is pleaded that the plaintiff was employed by the State of Western Australia: not by the Minister. There are no facts pleaded which establish that the Minister's decision caused the contract not to be renewed.

84 Paragraph 38 of the substituted statement of claim is materially similar to [37] and should be struck out for the same reasons.

85 Paragraphs 6, 10, 11, 12, 14, 18, 19, 20, 22, 26, 27, 28, 30, 34, 35, 36, 37, 38, and 39 of the further substituted statement of claim should be struck out.

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : NEESHAM -v- 6PR SOUTHERN CROSS RADIO PTY LTD [No 2] [2008] WASC 72 (S)

Practice and procedure - Defamation - Whether plaintiff should have liberty to re-plead - Turns on own facts

Practice and procedure - Application for costs - Whether order for indemnity costs should be made - Turns on own facts

Legal Profession Act 2008 (WA), s 280

Rules of the Supreme Court 1971 (WA), O 20 r 8(1)

Plaintiff have leave to apply to amend his statement of claim in accordance with a minute to be brought in by the plaintiff

Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245

Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413

Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S)

Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165

Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 417; (1991) 217 ALR 171

Lewis v Daily Telegraph Ltd [1964] AC 234

Liberty Financial Pty Ltd v Scott [2005] VSC 472

Maisel v Financial Times Ltd (1915) 112 Lt 953

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266

Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72

Sansom Nominees Pty Ltd v Meade [2005] WASC 9 (S)

Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161

1 On 14 May 2008 I delivered reasons for judgment on applications by each of the defendants to strike out paragraphs of the further substituted statement of claim filed on 11 May 2007: Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 (Neesham (No 2)). In my reasons I said that [6], [10] - [12], [14], [18] - [20], [22], [26] - [28], [30], [34] - [39] of the further substituted statement of claim should be struck out. Following delivery of those reasons for judgment the defendants did not move for orders that the specified paragraphs of the further substituted statement of claim be struck out. Instead, at the request of all of the parties, I ordered that the issues of liberty to file any further amended statement of claim and any special costs orders be referred to a special appointment and gave directions for the filing of affidavits and submissions in relation to those issues. The parties subsequently conferred in relation to further amended statements of claim proposed by the plaintiff. However, no agreement was reached. The special appointment to hear these matters did not take place until 22 May 2009.

2 It is common ground that an order should be made striking out [6], [10] - [12], [14], [18] - [20], [22], [26] - [28], [30] and [34] - [39] of the further substituted statement of claim dated 11 May 2007.

3 There are two principal issues. The first issue concerns liberty to re-plead. The plaintiff has filed and served a minute of proposed further substituted statement of claim dated 31 March 2009 (the Minute). The first and second defendants submit that the plaintiff should not have leave to amend the statement of claim in accordance with the Minute or at all. The third defendant submits that the plaintiff should not have leave to amend his statement of claim in accordance with the Minute but does not oppose liberty to re-plead if and when the plaintiff presents a proposed amended statement of claim in proper form. The plaintiff does not ask for leave to amend his statement of claim in accordance with the Minute. Counsel for the plaintiff explained that the plaintiff had filed and served the Minute to show that the plaintiff can plead a proper statement of claim and should be given leave to re-plead.

4 Each of the first and second defendants seek orders that the plaintiff pay their costs of the strike out application on an indemnity basis. They further seek orders that the first and second defendants' costs of the application should include the costs of and incidental to their objections to versions of the statement of claim proffered by the plaintiff between 29 November 2006 and 14 May 2008 and costs of conferral in regard thereto on an indemnity basis. Further, the first and second defendants seek an order that the limit on costs fixed under the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2006 (WA) (the Determination) be lifted pursuant to s 280(2)(c) of the Legal Profession Act 2008 (WA). The first and second defendants seek orders that the costs be paid forthwith.

5 The third defendant seeks orders that the plaintiff pay its costs of conferral with the plaintiff as to each of the amendments made to the statement of claim since 29 November 2006, all of the third defendants costs of corresponding with the other parties as to the directions of the court and the amendments made by consent to those directions since 29 November 2006 and the third defendants costs in respect of its strike out application all on an indemnity basis to be paid forthwith. Alternatively, the third defendant seeks an order that the limit under item 10 of the Determination be removed with respect to the third defendant's strike out application.

6 In the Minute the plaintiff has reformulated the imputations which he says arise from each of the broadcasts by the defendants. The plaintiff has also reformulated his claim for special damages. The defendants object to both the imputations and the claim for special damages in the Minute.

7 Senior counsel for the first and second defendants presented his argument in relation to the imputations by reference to [11] of the Minute in which the plaintiff pleads that in its natural and ordinary meaning the second defendant's broadcast meant and was understood to mean that:

11.1 the plaintiff was lacking in moral rectitude in his performance of his duties as CEO of WorkCover in that:

11.1.1 the plaintiff was indifferent to the effect the workers compensation system was having upon potential claimants;

11.1.2 by backdating the deadline preventing people claiming compensation the plaintiff acted with callous or reckless disregard of the effect his actions would have upon persons who would otherwise claim workers compensation;

11.2 the plaintiff was negligent in his performance of his duties as CEO of WorkCover; and

11.3 the plaintiff was incompetent in his performance of his duties as CEO of WorkCover.

The plaintiff pleads substantially the same imputations in [6] in relation to the first defendant's first broadcast, in [16] in relation to the third defendant's broadcast and in [21] in relation to the first defendant's second broadcast.

8 Each of the defendants submit that the imputation or imputations in [11.1] is or are embarrassing because they fail to state the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged. The defendants submit that the imputation of 'lacking in moral rectitude' is ambiguous and the ambiguity is not cured by the addition of the matters set out in subparagraphs 11.1.1 and 11.1.2. Further, the defendants submit that the formulation of the imputation is embarrassing in that it includes within the notion of 'lack of moral rectitude' at least three concepts, namely being indifferent, acting with callous disregard and acting with reckless disregard.

9 The defendants submit that 'indifference', 'acting with callous disregard' and 'acting with reckless disregard' are not within the notion of 'lack of moral rectitude'. The defendants further submit that the imputation that the plaintiff was indifferent to the effect that the workers compensation system was having upon potential claimants is not capable of being defamatory. The third defendant also submits that the imputation that the plaintiff was indifferent to the effect the workers compensation system was having upon potential claimants is not capable of arising from the third defendant's broadcast.

10 The defendants submit that the imputations in [11.2] and [11.3] fail to distil the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged.

11 In [25] and [26] of the Minute the plaintiff pleads special damages. The special damages are said to be that by reason of the defendants' broadcasts the plaintiff's contract of employment as CEO of WorkCover was not renewed and he was not appointed to the position of Chairperson of the WorkCover Commission. The defendants submit that some of the matters pleaded in the Minute in support of those claims are irrelevant. The defendants further submit that the Minute fails to plead sufficient facts to support the claims that the plaintiff's contract was not renewed and he was not appointed to the position of Chairperson of the WorkCover Commission by reason of the defendants' broadcasts.

Legal principles on strike out applications

12 Some of the defendants' challenges to the Minute are on the grounds that the imputations are not capable of arising from the broadcast or that the imputations are not defamatory. An imputation will only be struck out on the ground that it is not capable of arising from the publication complained of or that it is not capable of being defamatory if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless.

13 A different test applies to striking out an imputation on the ground that it is embarrassing. An imputation will be struck out if it may prejudice, embarrass or delay the fair trial of the action. The plaintiff must clearly and precisely specify each defamatory imputation. The plaintiff must plead the precise act or condition asserted of, or attributed to, the plaintiff, or with which he is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 678 Hunt J. This reduces any confusion as to what meaning the plaintiff contends for. If the imputation is ambiguous or confusing it should be struck out. Arguments about the degree of specificity required in pleaded meanings frequently arise in strike out applications. I will address that issue later in these reasons.

14 The defendants' attacks upon the pleading of special damages in the Minute appear to be made on two bases. The first is that the plea contains irrelevant material. Material is not struck out merely because it is irrelevant and therefore unnecessary. However, unnecessary material may be struck out if it will cause delay or embarrassment. It may do so if the plea raises a false issue which will cause delay and expense at trial and in getting up the case for trial.

15 The defendants' complaint that the plea of special damages does not plead sufficient facts to show that the alleged damage was caused by the defendants' broadcasts is really a complaint that the Minute fails to plead all the material facts necessary for the purpose of formulating the claim for special damages. In this case, that challenge gives rise to questions of whether the pleading fails to plead all the necessary material facts and whether the facts have been pleaded at too great a level of generality or at too high a level of abstraction. I will discuss that issue when considering the special damages plea in the Minute.

16 The imputation in [11.1] is embarrassing. It rolls up three imputations in one:

(1) The plaintiff was lacking in moral rectitude in his performance of his duties of CEO of WorkCover in that he was indifferent to the effect the workers compensation system was having upon potential claimants.

(2) The plaintiff was lacking in moral rectitude in his performance of his duties as CEO of WorkCover in that by backdating the deadline preventing people claiming compensation the plaintiff acted with callous disregard of the effect his actions would have upon persons who would otherwise claim workers compensation.

(3) The plaintiff was lacking in moral rectitude in his performance of his duties as CEO of WorkCover in that by backdating the deadline preventing people claiming compensation the plaintiff acted with reckless disregard of the effect his actions would have upon persons who would otherwise claim workers compensation.

17 The pleading of imputations facilitates management of the case and procedural fairness. In Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41; (2001) 54 NSWLR 165 Mason P said:

The pleader's task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and 'if a problem arises, the solution will usually be found in considerations of practical justice rather than philology' (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent self-referential function. The pleaded imputation remains 'the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand' (per Mahoney JA in Singleton v Ffrench (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury's capacity to enlarge the issues.

A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory of the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, s 15(2), s 16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).

The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR174 at 195 - 196).

These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455; Minister for Immigration and Multicultural Affairs v Eshetu (1999) 197 CLR 611 at 634). Holmes J, in Towne v Eisner [1918] USSC 6; 245 US 418 (1918) at 425, reminds us that: 'A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used'.

Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see J G Fleming, The Law of Torts, 7th ed (1987) Sydney, Law Book Co Ltd, at 588) [18] - [22].

...

The principle which I would uphold in this appeal must not become the passport to sloppy or ambiguous pleading of imputations. It is, however, incumbent on the parties to thrash out the true issues at the pre-trial stages. If a pleaded imputation lacks a sting or if the sting has multiple barbs, then the plaintiff should be challenged to clarify the pleaded imputation [28].

18 Paragraph 11.1 in its present form pleads an imputation that has three barbs. The first barb is found in subparagraph 11.1.1. The second and third barbs are found in subparagraph 11.1.2, one based upon 'callous disregard' and the other upon 'reckless disregard'.

19 For that reason [11.1] is embarrassing and I would not give the plaintiff leave to amend to plead in those terms. It would be unfair to the defendants to do so. The defendants might be able to prove the truth of one of the three rolled up imputations but not one or more of the others.

20 The defendants further submit that the imputation that the plaintiff was indifferent to the effect that the workers compensation system was having upon potential claimants is not capable of being defamatory. I reject that submission. In the context of each of the broadcasts, the imputation is arguably capable of being defamatory in the sense that it is not so clearly untenable that it cannot succeed.

21 The imputation must be read in the context of the broadcast: Greek Herald Pty Ltd v Nikolopoulos. In each of the second defendant's broadcast and the first defendant's second broadcast the speaker says that WorkCover puts countless claims at risk and that victims could lose their homes. He refers to WorkCover's 'latest stuff-ups'. The proposed imputation is that the response of the plaintiff, who was said to be the boss of WorkCover, is indifference. It is not manifestly untenable to say that it would lower the plaintiff's reputation to say of him that he was indifferent to the plight of the victim's of WorkCover when he was the boss of WorkCover which was guilty of stuff-ups and had put people's claims at risk such that its victims could lose their homes.

22 In the first defendant's first broadcast Mr O'Halloran makes statements to the effect that the insurance companies make substantial profits from the workers compensation system but injured workers receive inadequate compensation. Mr O'Halloran says that weekly payments of compensation have been slashed, that 'they' are hell bent on destroying claims and that WorkCover has hundreds of complaints a week. Mr O'Halloran says that the plaintiff passed a regulation which backdated the deadline for people to claim compensation to the night before. Mr O'Halloran says that it is a scandalous state of affairs.

23 It is not manifestly untenable to say that it would lower the plaintiff's reputation to say of him that he was indifferent to the effect that the workers compensation system was having upon potential claimants when the broadcast says that the system destroys claims, that the effect of legislation is diabolical, that WorkCover has got hundreds of complaints a week, that the plaintiff backdated a deadline and is a scandalous state of affairs.

24 In the third defendant's broadcast Mr O'Halloran makes statements to the effect that the workers compensation system is inadequate. He says that the injury management system is often used as a backdoor means of destroying common law claims by insurance companies. He says that WorkCover neither works nor gives you any cover, that it has been a disaster for the last 10 years and that it has literally ruined people's lives. He says that there have been hundreds of complaints a week about WorkCover. Mr O'Halloran says that the plaintiff backdated a deadline to stop people claiming compensation.

25 It is not manifestly untenable to say that it would lower the plaintiff's reputation to say of him that he was indifferent to the effect the workers compensation system was having upon potential claimants when the injury management system of the workers compensation system is often used as the backdoor means of destroying common law claims by insurance companies, when it is said that WorkCover neither works nor gives you any cover, has been a disaster for the last 10 years, and has ruined people's lives and when there have been hundreds of complaints a week about WorkCover.

26 The defendants further submit that the notion of 'indifference' is not within the notion of 'lack of moral rectitude'. I do not accept that submission. A person who is indifferent to the plight of persons who are seriously adversely affected by the acts or omissions of an organisation of which he is the boss may well be seen to lack moral rectitude or good character.

27 The third defendant further submits that the imputation that the plaintiff was indifferent to the effect that the workers compensation system was having upon potential claimants was not capable of arising from the third defendant's broadcast. That is a different question from the question whether or not the imputation, if it is capable of arising from the broadcast complained of, is defamatory.

28 The third defendant's broadcast consists principally of an interview between the programme host, John McNamara, and Paul O'Halloran who is described by Mr McNamara as a personal injuries lawyer and a long-time critic of the last government's changes to the workers compensation system and the then current government's proposed changes. Mr O'Halloran says things that are critical of WorkCover and of the plaintiff and of the Minister responsible for WorkCover, John Kobelke.

29 Counsel for the plaintiff submits that the imputation arises from the following statement by Mr O'Halloran in the context of the broadcast:

Its often used as a backdoor means of destroying your common law claim by insurance companies.

I also note sadly that there's not one word about safety in the whole package. Not one at all. Despite the rally that was recently held on Parliament steps, despite the fact that 50 workers have died in recent years because of unsafe working conditions. He talks about conciliation and WorkCover. We often say in the profession that WorkCover neither works nor gives you any cover.

Its been a disaster for the last ten years. It's literally ruined people's lives. There have been hundreds of complaints a week about WorkCover. We now know that it's financed by insurance companies and we believe it's actually a front for them. The medical panels up there which are paid $1200 per hour are often stacked with biased insurance doctors.

And at the top of it John it has someone in the name of Harry Neesham who, his claim to fame in recent years was to backdate a deadline on, on live radio in Perth ... I had a chat with him or a debate with him and he backdated the deadline to stop people claiming later that day.

Counsel for the plaintiff says that that passage, in the context of the whole broadcast, is capable of conveying a lack of moral rectitude in the performance of duties as the CEO of WorkCover and the content of that lack of moral rectitude is as pleaded in [16]. As I have noted, [16] is in substantially the same terms as [11] to which I have earlier referred.

30 I make the following observations about the passage relied upon by the plaintiff. First, in his introductory remarks the host, Mr McNamara, referred to having discussed with the Minister, Mr Kobelke, proposals for changes to the workers compensation system and Mr Kobelke's media release concerning those changes. Second, before speaking the words relied upon by the plaintiff Mr O'Halloran spoke about Mr Kobelke and what Mr Kobelke had and had not done. Third, Mr O'Halloran's statement: 'it's often used as a back door means of destroying your common law claim by insurance companies' followed immediately after his statement that Mr Kobelke talks about injury management which is a nice way of talking about rehabilitation and that in 10 years not one of Mr O'Halloran's clients had ever gained a job from 'this so-called injury management system they have'. Fourth, it is clear from Mr O'Halloran's preceding comments that when he said there was not one word about safety in the whole package, the package he was referring to was the proposed changes to the workers compensation system about which Mr Kobelke had issued a media release and made statements. Fifth, when Mr O'Halloran said that despite the fact that 50 workers had died in recent years because of unsafe working conditions he talks about conciliation and WorkCover, the 'he' Mr O'Halloran was referring to was Mr Kobelke. Sixth, the words relied upon by counsel for the plaintiff are immediately followed by the following words, which again refer to Mr Kobelke:

Now how can anyone have trust in a system when this is what they face. I mean WorkCover has to go and Kobelke's simply not listening to the message. Why is [he] protecting WorkCover? Its just beyond me.

31 In the words relied upon by the plaintiff the only statements that expressly refer to the plaintiff are statements that he is at the top of WorkCover and that he backdated a deadline to stop people claiming compensation. There is nothing in the words relied upon by the plaintiff to found an imputation that the plaintiff was indifferent to the effect the workers compensation system was having upon potential claimants. In the context of the broadcast, the imputation is to the effect that the plaintiff had no interest in, or feeling for, the people who were seriously adversely affected by the workers compensation system. The imputation conjures up the notion of the plaintiff regarding the effect of the workers compensation system upon potential claimants as not mattering, being unimportant or immaterial and not caring about the effect upon them. The passage relied upon by counsel for the plaintiff may well give rise to an imputation defamatory of the plaintiff but there is nothing in the passage that connotes 'indifference'. Furthermore, whilst [16.1.2] refers to the plaintiff's action in backdating the deadline, [16.1.1] refers not to the plaintiff's action in backdating the deadline but to the effect the workers compensation system was having upon potential claimants.

32 The test for determining meaning asks what an ordinary, reasonable listener would understand from the material broadcast. That person reads between the lines, interprets publications in light of their general knowledge and experience, is neither too suspicious nor naive and is not avid for scandal. Courts accept some 'loose thinking' and that ordinary people have a greater capacity for implication than lawyers: Lewis v Daily Telegraph Ltd [1964] AC 234, 259 Lord Reid, 277 Lord Devlin. However, there is nothing in the words referred to by counsel for the plaintiff that point to 'indifference'. Imputation [16.1.1], or [16.1] in so far as it is qualified by [16.1.1], is not reasonably capable of arising from the third defendant's broadcast.

33 The defendants submit that the imputations of 'negligence' and 'incompetence' as pleaded in [11.2] and [11.3] respectively, and the corresponding paragraphs in relation to the other broadcasts, fail to distil the precise act or condition asserted of, or attributed to, the plaintiff or with which he is charged.

34 The pleaded imputation's are at a high level of generality. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gleeson CJ said that 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 the 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. His Honour said that the solution would usually be found in considerations of practical justice rather than philology (137).

35 The 'degree of specificity required should be decided in light of the published material, with reference to the appropriate test: whether confusion is likely about the plaintiff's alleged meaning': Kenyon A T, Defamation in Comparative Law and Practice (63) citing Drummoyne, Gleeson CJ (138). The plaintiff must specify the meanings to be argued for, which may include quite general meanings, depending on just what was published. Not all general meanings are ambiguous.

36 In this case the pleaded imputation is not an imputation of a specific act of negligence but rather a general charge of negligence in carrying out the plaintiff's duties as CEO of WorkCover. That imputation, in its expression, is sufficiently clear and is not likely to lead to confusion. There is no prejudice to the defendants. Where the imputation consists of a general allegation, it is open to a defendant to establish the truth of that allegation by proof of specific acts of negligence. Indeed, it is open to the defendant to establish the truth of the allegation by proof of matters entirely unrelated to the specific instances identified in the broadcast: Maisel v Financial Times Ltd (1915) 112 Lt 953.

37 The same reasoning applies in relation to imputation [11.3], the imputation of incompetence. Imputations [11.2] and [11.3] are not embarrassing on the ground that they fail to state the precise act or condition asserted of, or attributed to, the plaintiff.

38 In the present context, the test for whether leave should be granted to re-plead the imputations said to arise from the broadcasts is the same as the test for whether pleaded imputations should be struck out. For the reasons stated I would not give leave to amend the statement of claim in accordance with the Minute. However, each of the broadcasts complained of are capable of giving rise to meanings defamatory of the plaintiff. In those circumstances, the plaintiff will usually be given an opportunity to re-plead his statement of claim.

39 The first and second defendants submit that the court may refuse leave to re-plead where repeated opportunities to re-plead have failed or been abused. Counsel for those defendants referred to Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245. In that case Gummow, Hayne and Heydon JJ said:

The defendant's application to replead these paragraphs appears to rest on an assumption shared by many parties to defamation litigation, particularly defendants. That assumption is that proceedings can proceed in very leisurely fashion through every level of appeal in relation to repeated pleading refinements. Quite apart from the excessive consumption of court time which this custom engenders - disproportionate when compared with other forms of litigation - it has the effect of being unfair to the less well-resourced of the two parties, as continual rounds of repleading keep the party which does not want to face trial well away from that ordeal. The assumption ought not to receive any encouragement. The repleading which the defendant now wishes to undertake should have been undertaken at much earlier stages in this litigation. ... The repleading which the defendant wishes to undertake should not be permitted now unless the interests of justice plainly require it [97].

40 In this case it is the plaintiff, rather than the defendant, who is responsible for the repeated pleading. The defendants are media organisations. There is no evidence that the defendants are the less well-resourced parties or that the plaintiff does not want to face trial. Nevertheless, it is unfair to a defendant to allow a plaintiff to repeatedly amend, or unsuccessfully attempt to amend, his statement of claim which delays the trial of the action and adds to the expense of the parties, notwithstanding any orders for costs. A point may be reached when it is unfair and oppressive to the defendants to permit any further attempts at pleading refinements or pleading amendments and at that point leave to re-plead may be refused. However, that point has not yet been reached. The plaintiff should have leave to re-plead his statement of claim so as to plead the imputations in a proper form.

41 The minute pleads special damages in [25] and [26] as follows:

By reason of the defendants' publications, and each of them, the plaintiff suffered specific loss and injury in that:

25.1 the plaintiff had a reasonable expectation, at the time of the first defendant's first broadcast and thereafter until on or about 10 August 2004, that his contract for services with WorkCover (the Contract) would be renewed for a further period of 3 years;

25.2 by reason of the defendants' publications and each of them the Contract was not renewed upon its expiry on or about 10 August 2004;

Further to paragraph 25 hereof, and as to the question of special damages only:

26.1 the plaintiff had a reasonable expectation, at the time of the first defendant's first broadcast and thereafter until on or about 10 August 2004, that, irrespective of whether he was re-appointed as CEO of WorkCover, he would be appointed by the Minister to the position of Chairperson of the WorkCover Commission, a position that attracted a salary of $25,000 per annum;

26.2 by reason of the defendants' publications and each of them the plaintiff was not appointed as Chairperson of the WorkCover Commission after the Contract expired, or at all.

42 The defendants submit in respect of the claim for special damages that the alleged 'reasonable expectations' pleaded at [25.1] and [26.1] are irrelevant to the question of whether the plaintiff has sustained damage by reason of the alleged publications. Further, they submit that [25.2] and [26.2] do not plead what is alleged to be the causal link between the alleged publications and the non-renewal of the plaintiff's contract and his non-appointment as Chairperson of the WorkCover Commission.

43 I accept the defendants' submission that the alleged 'reasonable expectations' pleaded at [25.1] and [26.1] are irrelevant to the question of whether the plaintiff has sustained damage by reason of the alleged publications. The plaintiff's case is that the defendants' publications caused his contract not to be renewed and caused him not to be appointed as Chairperson of the WorkCover Commission. The plaintiff's case is not a loss of opportunity case. Whatever expectations the plaintiff had that his contract would be renewed or that he would be appointed Chairperson of the WorkCover Commission is not relevant to the issue in relation to special damages. That issue is: Did each of the defendants' publications cause the plaintiff's contract to not be renewed and cause the plaintiff to not be appointed as Chairperson of the WorkCover Commission.

44 The pleas in [25.1] and [26.1] do not plead facts to the effect that prior to the defendants' broadcasts the State or relevant authority, through the relevant decision maker, intended to renew the plaintiff's contract or appoint him as Chairperson of the WorkCover Commission or that it was objectively likely that it would do so. There are no facts pleaded to found such a plea and the plea does not take that form. The plea is concerned with the plaintiff's subjective expectations. There are no facts pleaded which link the plaintiff's expectations with his contract not being renewed or him not being appointed Chairperson of the WorkCover Commission.

45 Irrelevant or unnecessary material will not necessarily be struck out. However, the pleas in [25.1] and [26.1] may prejudice, embarrass or delay the fair trial of the action because they raise false issues. If the pleas are permitted to be made then the defendants, acting reasonably, would plead to those pleas and might lead evidence at trial in relation to them. The plaintiff should not be permitted to amend in terms of [25.1] and [26.1] of the Minute.

46 The defendants submit that [25.2] and [26.2] do not plead the alleged causal link between the broadcasts and the non-renewal of the plaintiff's contract and his non-appointment as Chairperson of the WorkCover Commission.

47 The plaintiff must plead in his statement of claim the material facts on which he relies for his claim: Rules of the Supreme Court 1971 (WA) O 20 r 8(1). It is sometimes said that a pleading fails to disclose a reasonable cause of action because it is merely a statement of conclusion drawn from facts which are not in the pleading. However, not all conclusionary pleadings will be struck out as being deficient. In Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees' Association of Western Australia (1987) 13 FCR 413 French J considered that the plea in that case that the respondent acted in concert involves the pleading of a conclusion. His Honour said:

It does not necessarily follow that a conclusion may not constitute a material fact.

Nevertheless the pleading is in this case unsatisfactory in relation to the fifth respondent. It is unsatisfactory if only because the allegation of concert is at too great a level of generality or, put another way, is insufficiently particular [418].

Whatever level of generality is adopted in a statement of claim it must, in my opinion, be consistent with the purpose of pleadings, namely to define the issues and thereby inform the parties in advance of the case they have to meet and so enable them to take steps to deal with it ... [417].

French J struck out the pleading on the ground that because of its generality it was embarrassing.

48 In Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd [1991] FCA 417; (1991) 217 ALR 171 the respondent submitted that the statement of claim pleaded only conclusions and not the material facts upon which they are based. French J said:

Material facts must be pleaded with the degree of specificity necessary to define the issues and inform the parties in advance of the case they have to meet. There are certain levels of generality in pleading which while they may bring in all facts necessary to establish a cause of action, are insufficient for that purpose ...

I do not accept that the pleading of something which can be described as a conclusion cannot also be a pleading of a material fact. The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality. In my opinion, the level of generality of the statement of claim in this case is too great for Rothmans to know with any precision what case it has to meet (173).

49 In my opinion the level of generality of [25.2] in the Minute is too great for the defendants to know with any precision what case they have to meet. The statement of claim pleads that the plaintiff was until 10 August 2004 employed by the State of Western Australia as the Chief Executive Officer of WorkCover. The Minute pleads that each of the first and second defendants is a duly incorporated company carrying on the business of a radio broadcaster. The Minute pleads that the third defendant is a statutory corporation and a broadcaster of radio and television programmes. The Minute then pleads each of the broadcasts complained of and the imputations said to arise from each of those imputations. Two of the broadcasts are in the same terms but the other two broadcasts are different. Notwithstanding that, the Minute pleads that each broadcast gave rise to the same imputations. The Minute then goes on to plead special damages in [25] and [26] which I have set out earlier. Putting to one side [25.1] and [26.1], which for the reasons I have stated do not advance the plaintiff's case, the pleading that the broadcasts caused the plaintiff's contract not to be renewed and caused the plaintiff not to be appointed as Chairperson of the WorkCover Commission is confined to the conclusionary statement that by reason of the defendants' publications, and each of them, the plaintiff's contract was not renewed and he was not appointed Chairperson of the WorkCover Commission.

50 A simple plea that a plaintiff's contract of employment was terminated by reason of the plaintiff's libel will often be sufficient. For example, it will usually be sufficient if it is pleaded that the defendant published to the plaintiff's employer a libel to the effect that the plaintiff is dishonest and it is pleaded that the plaintiff's employer terminated his employment the following day. However, this is a very different case.

51 The Minute pleads four separate radio broadcasts. There is no plea that the plaintiff's employer, or the person (or persons) who decided not to renew his contract and not to appoint him Chairperson of the WorkCover Commission, heard each of the broadcasts. The plaintiff's contract expired, and was not renewed, almost two years after the broadcasts. The Minute does not state who on behalf of the State of Western Australia made the decision not to renew the plaintiff's employment or what process led to that decision or non-decision.

52 Counsel for the plaintiff submitted that the material fact is that the plaintiff's contract was not renewed because of the publication. Counsel said that the evidence for that is that by some means or another the Minister knew, it operated on the Minister's mind and the Minister was charged with recommending to the Government a particular point and that occurred. All of those matters, submits counsel, are matters of evidence and not material facts. I do not agree. For example, if the Minister did not hear one or more of the broadcasts but was informed of it in some way and on some date then the defendants are entitled to know those facts so that they know what case they have to meet.

53 Counsel for the plaintiff referred to the practice of this court to order that witness statements be exchanged prior to trial. Counsel for the plaintiff referred to Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] WASC 161 in which Martin CJ, in dealing with an application to strike out a statement of claim, said that interlocutory disputes of the kind before him must be actively discouraged. The Chief Justice said that in many cases interlocutory disputes relating to pleading issues consume very substantial amounts of time and expense on the part of both the parties and the court and in many cases the time and expense involved in the consideration and resolution of the interlocutory dispute is entirely disproportionate to its significance to the just and effective resolution of the case as a whole by mediation or trial [2].

54 I see nothing in the decision of the Chief Justice in Youlden Enterprises, or in other decisions of this court expressing similar sentiments, which is inconsistent with the importance of pleadings in ensuring that a party knows the case it has to meet at trial. The practice of this court is to order that witness statements be exchanged some time prior to trial. In this case, the receipt of witness statements at the time when they are likely to be received by the defendants is an inadequate substitute for being properly informed of the case they have to meet at an earlier time. The defendants may wish to investigate how and when, and indeed if, the Minister learned of each of the relevant broadcasts, the circumstances in which that occurred and the decision making process that led to the non-renewal of the plaintiff's contract and his non-appointment as Chairperson of WorkCover Commission. The defendants cannot properly carry out such an investigation without knowing the facts which the plaintiff alleges led to his contract not being renewed and him not being appointed as Chairperson of the WorkCover Commission.

55 For those reasons I would not give the plaintiff leave to amend his statement of claim to plead special damages in accordance with [25] and [26] of the Minute. The first and second defendants submitted that the plaintiff should not be given leave to re-plead his special damages claim because he has attempted to plead the special damages claim on a number of occasions and is unable to plead sufficient facts to make out a special damages claim. I do not accept that submission.

56 In Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266 (Neesham [No 1]) I struck out the plaintiff's plea of special damages because the pleading in its then current form was confusing and not tenable. The pleading then being considered did not plead that the Minister did not renew the plaintiff's contract because of the broadcast complained of. The pleading asserted that the Minister did not renew the plaintiff's contract because public statements made by Mr O'Halloran, and reproduced in the broadcast complained of, suggested to the Minister that Mr O'Halloran would act so as to cause the Minister's removal from the office of Minister if the plaintiff's contract was renewed. In argument before that judgment was delivered, counsel for the plaintiff indicated that it was intended to plead that the broadcasts themselves had acted on the Minister's mind so as to cause him to not renew the plaintiff's contract. The plaintiff's pleading that was struck out in Neesham [No 1] and the statements by the plaintiff's counsel suggest that the plaintiff is able to plead facts establishing that the Minister was aware of each of the broadcasts complained of and their contents and they acted on the Minister's mind in some way so as to cause the Minister to make a decision or do something which resulted in the plaintiff's contract not being renewed. The plaintiff should have an opportunity to plead the facts which establish those matters, or from which they may be inferred.

57 For the reasons stated, I would not give the plaintiff leave to amend his statement of claim in accordance with the Minute but the plaintiff should have an opportunity to re-plead. It is not appropriate to give the plaintiff leave to re-plead at large. The plaintiff should have leave to apply to amend his statement of claim in accordance with a minute to be brought in by the plaintiff.

58 The defendants seek the costs of their strike out applications to be paid on an indemnity basis. The defendants rely on the fact that the plaintiff has attempted on multiple occasions to plead his case and each of these attempts has ended in failure. On this basis, the defendants submit that at a point after the plaintiff's statement of claim was struck out in Neesham [No 1], and before the plaintiff formulated his claim in the Minute, a line was crossed and thereafter it became neither fair nor just that while the plaintiff continues his attempts to put his pleading in order, the defendants should be out of pocket to the extent of the difference between their party/party costs and the costs actually incurred by them.

59 In Sansom Nominees Pty Ltd v Meade [2005] WASC 9 (S) E M Heenan J expressed the view that indemnity costs:

must be regarded consistently with O 66 and [Legal Practice Act] s 215 and, in particular, now, to be within the contemplation of s 215(1)(d) because whatever magnitude an order for costs may eventually have, it should not in my view contain anything but a compensatory element and nothing in the nature of a punitive element [2].

60 In Flotilla Nominees Pty Ltd v Western Australian Land Authority [2003] WASC 122 (S) Pullin J said that the usual costs order is one for party and party costs. An order for indemnity costs will only be made if there is some special or unusual feature in the case to justify a departure from the usual practice [8]. His Honour observed that most of the cases where an indemnity costs order has been made involve some element of improper, or at least unreasonable, conduct on the part of the parties or their legal advisers in relation to the case [9].

61 In Colgate-Palmolive Company v Cussons Pty Ltd [1993] FCA 536; (1993) 46 FCR 225 Sheppard J observed that it seemed not unlikely that the growing number of applications for indemnity costs was being triggered by a perception that the disparity between costs incurred and costs recovered is widening (227). In Flotilla Nominees Pullin J said that that situation should not arise in Western Australia under the present scale because the cost regime in force in this State means that an order for indemnity costs has less significance than in those jurisdictions where the amounts allowed for party and party costs are materially lower than those allowed for solicitor and client costs. His Honour observed that this is particularly so under the scales which have applied since 1996 [13]. Pullin J referred to the Determination and said that the scale of costs created by that determination describes the various stages of work involved in litigation, and then states the number of hours for the performance of that work and applies an hourly rate of an appropriately qualified practitioner to that number of hours, to arrive at a dollar figure [15]. His Honour observed that since 'the 1996 Determination, the Legal Costs Committee has carried out further surveys to adjust the hourly rates to reflect the rates being charged by practitioners within the profession' [18]. Pullin J said:

The result is that where there is no costs agreement under s 59, there should not often be any need for an indemnity costs order. If costs are likely to exceed the allowances in the scale, the successful party will usually be advised to apply for a special costs order under O 66 r 12(1) by showing that the case involved unusually complexity or importance, or by reason of the amount of work involved in conducting the case [19].

Pullin J said that 'if a properly formulated special costs order is made, there should be little need for an indemnity costs order to try and recover costs incurred above the scale' [24]. However, his Honour acknowledged that there is still a place for indemnity costs orders and stated:

It will be appropriate in cases where there has been improper or unreasonable conduct on the part of a party or his legal advisors. An order for an indemnity costs order is a mark of disapproval on the part of the court about the improper or unreasonable conduct of litigation, even though there should not be much difference in the costs recovered under such an order compared with recovery under a properly formulated special costs order. If the conditions warrant an indemnity costs order, it is likely that the judge making the order will be more inclined to allow an increase in the hourly rates or an increase in the limits. An order detailing those increases should, in my opinion, be made even where indemnity costs orders are made [25].

62 The first and second defendants submitted that the plaintiff has already had seven attempts at pleading his claim and his statement of claim has been struck out twice. The first and second defendants submitted that the plaintiff has been put on notice of the deficiencies in the statement of claim, and each succeeding amendment to, or re-pleading of, the statement of claim did not cure the deficiencies. The first and second defendants submitted that the plaintiff has persisted in propounding inadequate and deficient statements of claim, and such conduct warrants an order for indemnity costs.

63 Most of the multiple attempts at pleading the plaintiff's claim have occurred in the course of conferral between the parties. Order 59 r 9 requires the parties to confer to try to resolve any differences between them before making an interlocutory application. The fact that a party puts forward successive versions of a statement of claim in the course of conferral does not of itself give rise to the conclusion that that party has acted improperly or unreasonably or otherwise should be the subject of an indemnity costs order.

64 In Liberty Financial Pty Ltd v Scott [2005] VSC 472 Harper J ordered the plaintiffs to pay the defendants' costs of a strike out application in a defamation matter on an indemnity basis. The defendants in that case relied on the fact that the plaintiffs had attempted on multiple occasions to plead their case and each attempt had ended in failure. On that basis the defendants submitted that a line was crossed and thereafter it became neither fair nor just that, while the plaintiffs continued their attempts to put their pleading in order, the defendants should be out of pocket to the extent of the difference between party/party and indemnity costs [3].

65 Each case must, of course, be considered on its merits. I am not persuaded on the materials before me that the plaintiff's conduct in reformulating the imputations he says arise from the defendants' broadcasts and the special damages he claims is improper or unreasonable or otherwise justifies an order for indemnity costs.

66 The defendants seek a special costs order under s 280 of the Legal Profession Act. Section 280(2) provides that the court may make an order, amongst other things, raising the limits of costs above those fixed in the determination or removing those limits, if the court is of the opinion that the amount of costs allowable in respect of a matter under a cost determination is inadequate because of the unusual difficulty, complexity or importance of the matter.

67 The first and second defendants submit that the volume of conferral and amount of costs incurred in the conferrals in relation to the strike out applications is indicative of the unusual difficulty and complexity associated with the defendants' strike out applications.

68 I am not satisfied that the costs allowable in respect of the application are inadequate because of the unusual difficulty of the matter. Each of the defendants applied to strike out imputations pleaded by the plaintiff and paragraphs of the substituted statement of claim that pleaded aggravated damages and special damages. The applications involved the application of well established principles to the pleading of specified publications. The applications gave rise to questions no more difficult than are often raised in defamation strike out applications. I do not accept that defamation strike out applications are necessarily matters of unusual difficulty.

69 I am not satisfied that the amount of costs allowable under the relevant costs determination is inadequate because of the complexity of the matter with one qualification to which I will refer shortly. The applications did not involve a large volume of evidence or other material. The arguments were relatively narrow and focussed.

70 The qualification to which I have referred concerns the costs of conferral in relation to successive versions of the proposed amended statement of claim. On 14 May 2008 I delivered reasons for judgment on the defendants' applications to strike out paragraphs of the further substituted statement of claim. I did not then deal with the question of liberty to re-plead. The parties conferred in relation to that matter. The defendants are entitled to their costs of those conferrals and the conferrals preceding the strike out application.

71 Item 23 of the scale of costs in the Determination and the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2008 provide, amongst other things, for conferrals or other conferences where required by the rules and conferrals or other conferences including informal conferences where reasonably held after commencement of the proceedings. The scale provides for an hourly rate and not a maximum amount. However, to avoid any doubt I will make an order to the effect that the plaintiff is to pay the costs of the defendants incurred in conferring with the plaintiff in relation to the further substituted statement of claim and subsequent amended statements of claim, or minutes of amended statements of claim, proposed by the plaintiff. The limit of costs, if any, provided for such conferrals in the scale should be removed, but not the hourly rate prescribed.

72 The defendants' costs of conferral are to be assessed under item 23 of the scale not as part of the defendants' costs to be assessed under item 10 of the scale. It is for the taxing officer to determine the amount of the costs properly and reasonably incurred by the defendants in conferring with the plaintiff in relation to the substituted statement of claim and the plaintiff's subsequent proposed amended statements of claim, or minutes of proposed amended or substituted statements of claim.

73 The plaintiff does not oppose an order that the costs should be taxed and paid forthwith rather than costs in any event. It is appropriate that that order should be made.