Supreme Court of WA|1999-12-16|Before: Beach J, Steytler J, Ipp J

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259 (16 December 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : BRISTILE LTD -v- THE BUDDHIST SOCIETY OF WESTERN AUSTRALIA INC & ANOR [1999] WASC 259

Defamation - Aggravated and exemplary damages - Turns on own facts

Defamation - Publication - Whether allegation of publication on World Wide Web is sufficient

Defamation - Application to strike out defence - Qualified privilege arising from an occasion of governmental and political discussion - Necessity to plead reasonableness of conduct

Procedure - Supreme Court procedure - Application to strike out parts of defence - Substantial defects in defence prejudicing trial of action is "other good reason" for purposes of Rules of the Supreme Court 1971 O59, r 9(2)

Second Defendant : Ms C J McLure QC & Mr A W Willinge

Adam v Ward [1917] AC 309

Barclays Bank plc v Boulter, unreported; House of Lords; 21 October 1999

Clarkson v Director of Public Prosecutions [1990] VicRp 65; [1990] VR 745

Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623

Compagnie Financiere et Commerciale du Pacifique v Peruvian Guano Co [1882] 11 QBD 55

Cox v Feeney (1863) F&F 13

Day v William Hill (Park Lane) Ltd [1949] 1 KB 632

Gardiner v Ray [1999] WASC 140

Gumina v Williams (No 2) (1990) 3 WAR 351

Hore-Lacy v David Syme & Co Ltd, unreported; SCt of Vic (Beach J); No 5747 of 1996; 5 September 1996

Howden v Truth and Sportsman Ltd (No 2) (1938) 38 SR (NSW) 287

Johnstone v Stewart [1968] SASR 142

Kelly v Special Broadcasting Service [1990] VicRp 6; [1990] VR 69

Laurence v TVW Enterprises Pty Ltd (1992) 6 WAR 289

Morris v Cash (1993) 10 WAR 507

Oracle International Pty Ltd v Western Australian Newspapers Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997

Polly Peck (Holdings) plc v Trelford [1986] QB 1000

Reynolds v Times Newspapers Ltd, unreported; House of Lords; 28 October 1999

Rindos v Hardwick, unreported; SCt of WA (Ipp J); Library No 940164; 31 March 1994

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

Russell-Davison v Prosin, unreported; SCt of WA (Sanderson M); Library No 980277; 22 May 1998

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

Todd v Novotny, unreported; SCt of WA (Master Sanderson); Library No 980226; 30 April 1998

Verdell Pty Ltd v F & G Nominees, unreported; SCt of WA (Master Sanderson); Library No 970588; 5 November 1997

Woodger v Federal Capital Press of Australia Pty Ltd (1992) 107 ACTR 1

1 STEYTLER J: There are three applications before the court in defamation proceedings. Each of the first and second defendants ("The Buddhist Society" and "iiNet" respectively) has brought an application to strike out parts of the statement of claim. The plaintiff ("Bristile") has brought an application to strike out parts of The Buddhist Society's defence.

2 Bristile claims to have been defamed by each of The Buddhist Society and iiNet. It is a public company which carries on the business of a brick and tile manufacturer in Perth, Western Australia. Its trucks were used to haul clay along Kingsbury Drive, Serpentine, in front of the Bodhinyana Buddhist Monastery. This caused dismay to those occupying that monastery and its supporters. The Buddhist Society consequently published upon its web site to iiNet (which carries on business as an Internet service provider, inter alia, hosting web sites for reward and transmitting those web sites to the World Wide Web) the following words, with the intention that they be republished by means of the World Wide Web:

"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE

________________________

Below is a letter which you may like to send to the Minister for Environment. Please download this page, modify it as you wish, print and sign your name, then send it to the Minister

_________________________

I would like to express my concern that heavy haulage has begun along Kingsbury Drive, Serpentine, in front of the Bodhinyana Buddhist Monastery. This results in excessive noise which is destroying the peace and tranquility, the very reason for the monastery's existence.

The Abbott has clearly stated that if the trucking continues the monastery will have to close down. Western Australia is very fortunate to have such a spiritual facility which is well known nationally and internationally.

I am also concerned about the danger which results from very large vehicles travelling down a steep gradient, especially as it is to [sic] close to the South West Highway. They pose a risk to our community members who visit the monastery daily. The same danger exists for local residents, school children and tourists along Kingsbury Drive.

Metro Brick has violated environmental principles and road safety for immediate and shortsighted commercial gains. Importantly, it also demonstrates disrespect for spiritual values, including the Constitutional right of freedom of religious expression.

I give my full support to the Buddhist Society of Western Australia (Inc.) in their efforts to save this unique spiritual sanctuary, and to protect the rights and safety of other road users. I urge you to do all in your power to rectify this situation and to ensure that community and environmental concerns are placed first, not last.

3 Bristile pleads, in its statement of claim, that iiNet, at the material times, hosted the Buddhist Society's web site upon its web server and published the Buddhist Society's web site to the World Wide Web, listing it with various search engines.

4 Bristile alleges, in par 6 of its statement of claim, that iiNet "republished" the letter which I have quoted above ('the first letter') to the World Wide Web by loading or permitting the loading of that letter upon its web server and connecting it by fibre optic cable or otherwise to the Telstra Broadband.

5 The defamatory imputations said to arise from the first letter are set out in par 7 of the statement of claim as follows:

"7. In its natural and ordinary meaning the ... [first letter] meant, and was understood to mean, that:

7.1 the Plaintiff had breached the laws and regulations concerning environmental protection in the State of Western Australia;

7.2 the Plaintiff has a callous disregard for the environment;

7.3 the Plaintiff has a callous disregard for the safety of road users;

7.4 the Plaintiff would endanger the lives of road users for financial gain;"

6 Then, in par 9 of the statement of claim, Bristile pleads that the Buddhist Society published on its web site to iiNet, "with the intention that the same be republished to the world by means of the World Wide Web" the following words:

"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE

________________________

Below is a letter which you may like to send to Metro Bricks [sic] (Bristile). Please download this page, modify it as you wish, print and sign your name, then send it to the Managing Director of Metro Bricks [sic]

_________________________

It is with dismay and shock that I heard that Metro Brick is currently allowing heavy-haulage vehicles to cart clay along Kingsbury Drive in front of the Buddhist Monastery. This shows on the part of Metro Brick not only a callous neglect of environmental concerns and road safety but also a complete lack of respect for community values.

The excessive disturbance is destroying the peace and tranquility, which is the very reason for the monastery's existence. In fact, the Abbott has clearly stated that if the trucking continues, the monastery will have to close down thereby denying our constitutional right of freedom of religious expression and practice, and destroying a sanctuary of peace. Many non-Buddhists such as the Cancer Support Association and school groups also use the monastery.

Loaded trucks travelling down Kingsbury Drive are a high risk to the driver and to other road users. Members of the Buddhist community use this road every day to visit the Monastery. It is also used by local residents, by school children and by tourists, all of whom are entitled to safety on the road.

There are over 10,000 members of the Buddhist community in Perth and many more non-Buddhist supporters who, like me, would prefer, under the current circumstances, not to purchase their building materials from Bristile/Metro Brick.

I would like to urge you to reconsider your decision in this matter.

7 In par 11 the plaintiff pleads that iiNet "republished" this letter ("the second letter") to the World Wide Web by loading or permitting the loading of the letter upon its web server and connecting it by fibre optic cable or otherwise to the Telstra Broadband.

8 The defamatory imputations said to arise from the second letter are pleaded in par 12 of the statement of claim as follows:

"In its natural and ordinary meaning, the ... [second letter] meant and was understood to mean that:

12.1 the Plaintiff has a callous disregard for the environment;

12.2 the Plaintiff has a callous disregard for the safety of road-users"

9 A third publication ("the third publication") is said to have occurred when the Buddhist Society is said to have published upon its web site to iiNet, with the intention that this publication be "republished to the world by means of the World Wide Web", the following words:

"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE

1. A proposal to develop a clay pit on Firns Road, Serpentine, was submitted to the Shire of Serpentine-Jarrahdale on 25 September 97. The clay was to be used by Metro Brick and to be hauled past our Buddhist Monastery's 500 metre frontage with Kingsbury Drive.

2. The Buddhist Society of Western Australia (Bud. Soc.) found out about this proposal by chance while attending a meeting of the Shire Council on other business in February 98.

3. The Bud. Soc. lodged an appeal to the Minister for the Environment, the Hon. C. L. Edwardes, on 9 March 98.

4. Representatives from the E.P.A. met with the abbot and other representatives of the Bud. Soc. and encouraged a compromise solution.

5. A compromise to split the traffic generated [by] the proposal, with half going down an alternative route, was proposed by the Bud. Soc, and approved by the Shire Council at its meeting on 22 June 98.

6. In consequence of what we thought was the acceptance of this compromise, the Bud. Soc. did not pursue the matter further and thus the Minister dismissed the appeal on 7th July 98.

7. On 19 October 98 the compromise of splitting the traffic was reconsidered by the Shire's Planning Services and Development Committee. That committee resolved to support a doubling of the amount of clay to be initially transported and to revert to haul the material on a single route up and down Kingsbury Drive, past our monastery.

8. The Bud. Soc., on the advice of its then lawyers, questioned the legality of the Shire changing its original decision, to separate the traffic generated, in the Supreme Court of W.A.

9. On 4 March 99 the Supreme Court judged that the Shire's granting of an Extractive Industries Licence on 22 June 98 was invalid on procedural grounds and so we were arguing about a decision which legally did not exist. On this point, we lost our case.

INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE

Should the proposed development proceed, it would mean:

1. 5,882 total truck trips past our monastery in the initial haulage period (to carry 50,000 cubic metres with 15 trucks (42.5 GVM) each doing 5 return trips per day). Thereafter, 2941 total truck trips past our monastery (to carry 25,000 cubic metres) twice per year for 5 years.

(Sources: Shire Planning Meeting minutes of 19/10/98 Uloth and Associates Pty Ltd.)

- In the first year, one truck pass every 4.8 minutes from 6am-6pm, Mon-Sat, for 39 days (6.5 weeks) then same for 20 days (3.3 weeks) later in the year, i.e. for 10 weeks in the first year.

- In subsequent years, one truck pass every 4.8 minutes from 6am-6pm, Mon-Sat, for 19.5 days (3.3 weeks) twice per year, i.e. a total of 39 days (6.5 weeks) per year, for the duration of the pit (4-5 years)

3. Such significant increase of heavy haulage traffic on Kingsbury Drive would greatly increase the danger to other road users. Members of our Buddhist community would, through fear, be unable to practise their religious duties by attending their monastery.

A number of accidents on this section of Kingsbury Drive has already been recorded, including a death around 12 years ago when a truck lost control on the steep slope down the scarp and including 17 instances of vehicles being unable to stop at the junction of Kingsbury Drive and the Southwest Highway, careering out of control across the Highway and through the fence into the neighbouring property (according to N Kentish, property owner of nearby property).

4. This would also generate 'truck noise level up to 76 dB (A) on the Premises (our monastery) which is up to 46 dB (A) above ambient noise at the rate of approximately 15 per hour for up to 12 hours per day, will have significant impact on the residents, which normally will result in vigorous complaints and threats of legal action.' (Source: Herring Storer Acoustics)

5. Such noise generated by this proposal would be inimical to the practice of meditation at our monastery and would cause the monks to leave. (Source: The Buddhist Tipitaka - The Canon containing the Teachings of the Buddha).

6. Should the monastery be forced to relocate, the huge investment of energy and money put in over 15 years could never be adequately recovered (At present the monetary value of the monastery is estimated at 1.8 million [sic]).

7. The Buddhist community in Western Australia will thereby be severely hindered from practising their religion which has been for 25 centuries, monastery centred."

10 In par 16 of the statement of claim Bristile pleads that iiNet republished the third publication to the World Wide Web by loading or permitting the loading of that publication upon its web server and connecting the same by fibre optic cable or otherwise to the Telstra Broadband.

11 The third publication is said (par 17) to have meant or been understood to mean, in its natural and ordinary meaning, that Bristile had a callous disregard for the safety of road users.

12 Bristile goes on to plead in par 19 of the statement of claim that the defendants published the defamatory publications in circumstances in which it was the natural and probable consequence of such publications "that they be republished", in which they intended that their defamatory publications be republished and in which they authorised recipients of their defamatory publications to republish them.

13 Paragraph 21 of the statement of claim reads as follows:

"21 After the publication of the defamatory publications and the commencement of these proceedings, the Second Defendant provided information to 'The West Australian' newspaper that the Plaintiff's solicitor, Mr Martin Bennett, had previously raised a private and personal complaint with the Second Defendant regarding a publication of and concerning Mr Bennett's son on an internet site hosted by the Second Defendant.

21.1 in circumstances where this prior complaint made by Mr Bennett to the Second Defendant was expressly confidential and sensitive in nature;

21.2 with the intention, alternatively the knowledge, that this information would be republished in 'The West Australian' newspaper in a manner which suggested that Mr Bennett had advised the Plaintiff to bring proceedings against the Second Defendant because Mr Bennett had a personal and malicious interest in prosecuting an action against the Second Defendant;

(a) this intention and knowledge is to be, inter alia, inferred from:

(i) the fact of disclosing a confidential and personal letter to the West Australian Newspaper;

(ii) the fact that the disclosure was made in conjunction with providing comments to the West Australian Newspaper upon the action commenced by the Plaintiff; and

(iii) from [sic] the terms of the publication by the West Australian on Saturday, 28 August 1999.

21.3 the publication by the Second Defendant to 'The West Australian' referred to in this paragraph being thereby calculated to demean the Plaintiff's action against the Second Defendant in a public forum, and to suggest to the public that the Plaintiff's action against the Second Defendant was based, not upon merit, but upon the personal interests of the Plaintiff's solicitor;

(a) The Plaintiff repeats the particulars to paragraph 21.2 herein.

21.4 in circumstances where, as the Plaintiff's action against the Second Defendant had been compulsorily disclosed in the Second Defendant's prospectus to the investing public, the Second Defendant thereby attempted to disparage the Plaintiff's claim in the manner described above for its own material gain, namely by seeking the discontinuance of this action so as to assist it's [sic] capital raising and avoid liability for it's [sic] conduct."

14 Then, in par 24 and par 25 of the statement of claim, Bristile pleads that:

"24 By reason of the matters described at paragraph 21 herein, the Second Defendant's conduct in publishing the defamatory publication ... and thereafter has been in contumelious disregard of the Plaintiff's rights and amounts to positive misconduct, and the Plaintiff thereby claims exemplary damages against the Second Defendant.

25. By reason of the matters described at paragraph 21 herein, the Second Defendant's conduct in publishing the defamatory publication and thereafter was unjustified, unreasonable and lacking in bona fides in a manner which has aggravated the damage to the Plaintiff, and the Plaintiff thereby claims aggravated damages against the Second Defendant."

15 The Buddhist Society, in its defence, denies that the first letter is capable of bearing any of the meanings attributed to it by the plaintiff. In par 4.1 of the defence it pleads various meanings which it says were conveyed by the first letter. It says, in this respect that:

"4.1 the ... [first letter] meant and was understood to mean that:-

4.1.1 the use by the plaintiff of heavy haulage trucks passing the Bodhinyana Buddhist Monastery ('the Monastery') was or arguably was inconsistent with environmental principles because it was resulting in excessive noise which was inimical to the peace and tranquility which would otherwise prevail at the Monastery and without which the very purpose of the Monastery would be lost;

4.1.2 the plaintiff was aware of the impact of heavy haulage trucks on the Monastery pleaded in paragraph 4.1.1, but was proceeding with their use because that suited the plaintiff's commercial objectives;

4.1.3 the road passing the Monastery (Kingsbury Drive) was at a steep gradient and the use of large vehicles on that road created danger to daily visitors to the Monastery and others; and

4.1.4 the plaintiff was aware of the danger pleaded in paragraph 4.1.3, but was proceeding with use of heavy haulage vehicles because that suited the plaintiff's commercial objectives;"

16 Having pleaded these meanings the first defendant goes on, in par 4.2, to plead that they were true in substance and fact by virtue of various matters which are stated in particulars A, B, C and D thereto.

17 Then, in par 4.3 and par 4.4 of the defence the Buddhist Society pleads as follows:

"4.3 alternatively to paragraph 4.2, the first defendant repeats:-

4.3.1 paragraphs 4.1.1 and 4.1.2 and paragraph 4.2 and particulars A and B sub-joined thereto;

4.3.2 alternatively, paragraphs 4.1.3 and 4.1.4 and paragraph 4.2 and particulars C and D sub-joined thereto;

4.4 further or alternatively to paragraphs 4.1, 4.2 and 4.3, the publication of the ... [first letter] constituted the dissemination of information, opinions and arguments on a government or political matter, which was an occasion of qualified privilege.

The ... [first letter] was expressed to be for the purpose of enabling members and other supporters of the first defendant to become acquainted with the opinions of the first defendant as to submissions which should be made to the Hon Minister for the Environment with respect to exercise of her powers and functions under the Environmental Protection Act 1986 and, if considered appropriate, making submissions to the Minister in the same, or in some other, form."

18 A similar style of pleading is adopted in respect of the second letter. The Buddhist Society denies that the material pleaded was capable of bearing the meanings attributed to it by Bristile and pleads (in par 7) various meanings which, it says, arise from the second letter. The meanings are the same as those pleaded in par 4.1. Then, in par 7.2, those meanings are pleaded to have been true in substance and fact by virtue of particulars which are identical to those contained in particulars A, B, C and D of par 4.2.

19 In par 7.3 of its defence the Buddhist Society pleads as follows:

"7.3 alternatively to paragraph 7.2, the first defendant repeats:-

7.3.1 paragraphs 7.1.1 and 7.1.2 and paragraph 7.2 and particulars A and B sub-joined thereto;

7.3.2 alternatively, paragraphs 7.1.3 and 7.1.4 and paragraph 7.2 and particulars C and D sub-joined thereto"

20 As to the third publication the Buddhist Society denies that this was capable of giving rise to the meanings contended for by Bristile. It pleads, in par 10.1, that further or alternatively:

"10.1 the ... [third publication] meant and was understood to mean that:-

10.1.1 the plaintiff was the operator of heavy haulage trucks carrying clay past the Monastery;

10.1.2 the first defendant had unsuccessfully pursued proceedings in the Supreme Court;

10.1.3 the heavy haulage trucks would carry out a significant number of trips at significant noise levels;

10.1.4 a number of accidents have previously occurred on Kingsbury Drive and significant use of heavy haulage vehicles would greatly increase the danger to the other road users;

10.2 in their natural and ordinary meaning ... the words used ... were true in substance and fact.

A. Paragraphs (i) and (ii) of particular C sub-joined to paragraph 4.2; and

B. Paragraph (ii) of particular A sub-joined to paragraph 4.2."

21 Then, in par 11 of its defence, the Buddhist Society pleads as follows:

11.1 all of the ... [first letter], the ... [second letter] and the ... [third publication] formed part of an information package on the first defendant's website, which overall meant and was understood to mean that:-

11.1.1 excessive noise is inimical to the purposes of a monastery used for meditation;

11.1.2 the extent of the noise from the heavy haulage vehicles might cause closure of the Monastery;

11.1.3 the first defendant would be assisted by its members and supporters writing strong letters to the Minister for the Environment and the managing director of the plaintiff in the form of the ... [first letter] and the form of the ... [second letter] or in any other form that those members or supporters considered appropriate;

11.1.4 the form of the ... [first letter] and the ... [second letter] included opinions which, upon consideration of all materials on the first defendant's website, the members and supporters of the first defendant might reasonably form and express to the Minister for the Environment and the managing director of the plaintiff as their own;

11.2 in their natural and ordinary meaning the words used in the ... [first letter] and the ... [second letter] and the ... [third publication] were true in substance and fact.

The first defendant repeats the particulars to paragraph 4;

11.3 further or alternatively to paragraphs 11.1 and 11.2, all of the ... [first letter], the ... [second letter] and the ... [third publication] constituted the dissemination of information, opinions and arguments on a government or political matter, which was an occasion of qualified privilege.

The entire package of information on the first defendant's website was for the purpose of enabling members and supporters of the first defendant to become acquainted with the difficulties being encountered by the Monastery and, if they considered it appropriate, to write expressing their opinion on the government or political issue of whether the use of heavy haulage vehicles by the plaintiff should be permitted."

22 I will, against this background, deal with each of the applications to which I have referred.

23 The Buddhist Society has applied to strike out par 21 of the statement of claim.

24 It contends, by its counsel, that if what is there pleaded is made out at trial it could give rise to a finding only that Mr Bennett himself was defamed by iiNet and could not form the basis of an award of either exemplary or aggravated damages in Bristile's favour.

25 In any event, it contends, there is nothing in the newspaper article referred to in par 21.2 which suggests that Mr Bennett had advised Bristile to bring proceedings against iiNet because he had a personal and malicious interest in prosecuting an action against iiNet. Consequently, it submits, there is simply nothing in the material pleaded which is even arguably capable of giving rise to an inference that iiNet had the intention or the knowledge ascribed to it in any of par 21.2, par 21.3 and par 21.4.

26 It seems to me that an inference of the kind contended for might arguably be drawn from the facts and circumstances pleaded in par 21.

27 That paragraph pleads that it was only after the commencement of the defamation proceedings that iiNet provided information to The West Australian newspaper that Mr Bennett had previously raised a private and personal complaint with it regarding a publication of and concerning his son on an Internet site hosted by iiNet. The provision of that information after the commencement of the proceedings, in circumstances in which it is pleaded, in par 21.1, to have been expressly confidential and sensitive in nature, is in my opinion enough, arguably at least, to give rise to an inference that iiNet was suggesting to the West Australian that Mr Bennett had some personal and malicious interest in seeing an action prosecuted against iiNet, more particularly in circumstances in which the information is pleaded to have been provided in conjunction with the provision of comments upon the action commenced by Bristile. If that inference is arguably open then, in my opinion, so too is one to the effect of that pleaded in par 21.3, namely that the publication was calculated to demean Bristile's action against iiNet publicly and to suggest to the public that its action was based upon Mr Bennett's personal interests rather than upon any intrinsic merit.

28 Similarly, if that inference is arguably open then it is arguable, albeit the argument may be more difficult, that a further inference can be drawn that the attempt to demean or disparage the action was one to further iiNet's personal interests in that it had been required compulsorily to disclose the action brought against it by Bristile in its prospectus.

29 Furthermore, once these inferences are arguably open, then it seems to me to be arguable that what is pleaded in par 21 is able to support claims for exemplary and aggravated damages.

30 I have many times drawn attention to the distinction between those two categories of damages and to the requirements for an award of each. It is convenient for me simply to repeat what I said in Gardiner v Ray [1999] WASC 140 at par 23 to par 26 inclusive:

"There is a functional distinction between aggravated and exemplary damages. This appears from what was said by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149 to the effect that aggravated damages 'are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done' whereas exemplary damages 'are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence'.

Consequently aggravated damages might, in a proper case, be awarded in respect of the emotional effect on a plaintiff of a tort committed against that plaintiff whereas exemplary damages are designed to punish the wrongdoer regardless of any effect of the wrong on that plaintiff. In Pollack v Volpato [1973] 1 NSWLR 653 at 657 Hutley JA said:

'Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished, it is his proper punishment which provides the basis for the assessment of damages.'

I have previously remarked (Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996) that the distinction is easier to state than to apply and that it might well be the case that the very circumstances which increase a plaintiff's hurt and outrage might make it desirable for the court to punish the wrongdoer (see also Johnstone v Stewart [1968] SASR 142 and Kercher & Noone: Remedies, 2nd ed at 360 - 362).

There is a range of circumstances which might warrant an award of aggravated damages encompassing not only conduct in the publication of the defamatory material (as to which see, for example, Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 and cf Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487) but also conduct of the defence (see Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514; Cassell v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 and Coyne v Citizen Finance [1991] HCA 10; (1991) 172 CLR 211). In every case the conduct must be unjustifiable, improper or lacking in bona fides (see Fleming: The Law of Torts, 9th ed at 660; Bickel v Fairfax, supra, at 497; David Syme v Mather [1977] VicRp 58; [1977] VR 516 at 530, 535; Coyne v Citizen Finance, supra, at 237)."

31 There is in this case (as was the case in Gardiner v Ray) no contest as to the proposition that exemplary damages will only be awarded in cases of conscious wrongdoing in contumelious disregard of another's rights (see Whitfield v De Lauret & Co [1920] HCA 75; (1920) 29 CLR 71 at 77 and Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118) or as to the proposition that exemplary damages can only be awarded where the defendant's conduct merits punishment as, for example, where it discloses fraud, malice, violence, cruelty, insolence or the like, or where the defendant otherwise acts in contumelious disregard of the plaintiff's rights (see Sanders v Snell (1997) 73 FCR 569 at 597 and Coloca v BP Australia Ltd [1992] VicRp 74; [1992] 2 VR 441 at 448).

32 It seems to me to be arguable that once, as I have found, an inference is open that the pleaded conduct was designed to disparage Bristile's claim as being motivated by matters other than its intrinsic merit, that conduct might be found to be unjustifiable or improper and also conduct which increased the plaintiff's hurt and outrage. It seems to me also to be arguable that conduct of that kind, if the allegations should be made out at trial, amount to conscious wrongdoing in contumelious disregard of Bristile's rights.

33 It follows that I would dismiss The Buddhist Society's application.

34 iiNet, too, has applied to strike out par 21 of the statement of claim on what are essentially the same grounds as those relied upon by The Buddhist Society.

35 In addition, iiNet has applied to strike out pars 6, 11, 16, 19 and 20 of the statement of claim.

36 There is, so far as this application is concerned, a preliminary issue which must be dealt with. That is because the requirements of O 20 r 19(3) have not been satisfied. The statement of claim was filed and served on 6 September 1999 and iiNet's application was filed on 21 October 1999, outside the 21 day limit fixed by the rule.

37 The solicitor on record for iiNet was initially its chief executive officer. Its present solicitors were instructed on 1 October 1999. On 6 October 1999 Mr Anthony Willinge, the solicitor having the conduct of the matter for iiNet, telephoned Bristile's solicitors for the purpose of conferring in relation to the strike out application proposed to be brought by iiNet. At that time the application was proposed to be brought only on the same or similar grounds to that brought on behalf of The Buddhist Society.

38 However, after consultations with senior counsel it was decided that the strike out application should be brought upon a wider basis and Mr Newnes, a member of the firm now instructed by iiNet, made these grounds known to Bristile's solicitors in the course of a telephone conversation on 18 October 1999. Bristile's solicitors having undertaken on that day to respond in relation to the additional complaints but not having done so by 21 October 1999, iiNet's solicitors filed the chamber summons on 21 October 1999.

39 I will, before deciding whether or not to extend the time within which the application might be brought, consider its merits.

40 It is unnecessary for me, as regards the attack on par 21 (and consequently par 24 and par 25), of the statement of claim, to say anything more than has been said in respect of the like application brought on behalf of The Buddhist Society. I would not, for the reasons already given, accede to an application to strike out those paragraphs.

41 Next, pars 6, 11, 16 and 20 are said to be embarrassing or to disclose no reasonable cause of action in that in each case it is simply alleged that the publication was "to the World Wide Web" and that it is not alleged that the material complained of was published to any person.

42 Senior counsel for iiNet contended that while, in cases of publication to the world at large in newspapers or books, the court will accept that publication in such cases is to be inferred (see Lazarus v Deutsche Lufthansa (1985) 1 NSWLR 188 per Hunt J at 192 - 193 and McLean v David Syme (1970) 92 WN (NSW) 611 at 625) the same is not true in respect of publication to the World Wide Web and there is nothing, in what has been pleaded, to allege that anyone accessed the web site.

43 I am not persuaded that there is any real merit in this objection. As "Gatley on Libel and Slander", 9th ed, points out (par 6.9), it is not necessary in every case for the plaintiff to prove directly that the words complained of were brought to the actual attention of some third party. It is enough if facts be proved from which it can be inferred that the words were brought to the attention of some third person. The learned authors of "Gatley" suggest that this is particularly obviously so where the matter is contained in a book or distributed in the news media or on the Internet (ibid). Moreover those authors suggest (par 32.6) that if it is a matter of reasonable inference that libellous matter was actually seen and read by some third party, a prima facie case of publication will be established (see also par 32.5). It seems to me that there is such a reasonable inference in this case, having regard, in particular, to what is pleaded in par 5, par 10 and par 15 of the statement of claim to the effect that iiNet hosted The Buddhist Society's web site on its server and published it to the World Wide Web from at least June 1999 to 29 July 1998 and listed it with various search engines, including the two which are named.

44 Next, counsel for iiNet contends that pars 6, 11, 16 and 20 of the statement of claim are embarrassing or disclose no reasonable cause of action in that in each case the plaintiff alleges a "republication" which on its face appears to be no more than the publication to the World Wide Web pleaded in pars 5, 10 and 15.

45 However it seems to me that the "republication" alleged in each of these paragraphs is plainly a reference to the publication by iiNet of what had previously been published to it by the Buddhist Society. I am consequently not persuaded that the use of that word gives rise to any embarrassment or that these paragraphs do not disclose any reasonable cause of action. Also, while par 6, par 11 and par 16 refer to republication "to the World Wide Web" that is, as I read those paragraphs, sufficiently plainly intended as a reference to those who accessed the World Wide Web. This form of pleading, too, consequently gives rise to no real embarrassment.

46 The final complaint relates to par 19 of the statement of claim. That paragraph is said to be embarrassing or to disclose no reasonable cause of action in that it pleads that it was a natural and probable consequence of the alleged publications by the two defendants and their intention that the material would be republished, but no republication is pleaded.

47 While it is true that no republication has been pleaded and, while it seems to me to be difficult to infer, merely from the facts pleaded, that there was any republication by those to whom iiNet published the words complained of, that does not mean that it is not open to the plaintiff to plead that it was a natural and probable consequence of the alleged publications by the two defendants and that the defendants intended that the material would be republished by others, more particularly in circumstances in which the words complained of encouraged recipients of the material to republish it. An allegation of this kind may be relevant to the issue of damages even in the absence of proof of republication.

48 It follows that I would not uphold any of the stated grounds.

49 That said, even if I should be wrong in any of the conclusions at which I have arrived, I am not persuaded that the defects complained of give rise to any sufficient prejudice to warrant an extension of time for the purposes of bringing the application to strike out.

50 I have previously said (Gardiner v Ray, above, par 33) that applications to strike out pleadings are overused and that it was partly because of this that the time limit fixed by O 20 r 19 was introduced.

51 The learned author of "Seaman: Civil Procedure Western Australia", suggests (par 20.19.2) that the discretion to enlarge the time limit set by O 20 r 19(3) will be exercised taking into account principles of positive caseflow management so that practitioners who do not apply within the prescribed time place their clients at risk of losing the opportunity to attack the particular pleading. There is also there reference to the case of Robinson v Adshead (No 2) (1995) 12 WAR 577 at 581. Master Evans there said that the court is justified in having grave reservations at granting an extension of time to bring a strike out application where that appears to be an afterthought even if it is brought bona fide and can be assumed to have arguable merit.

52 While I would not doubt the bona fides of iiNet's application I am not persuaded that a refusal to accede to it will result in any real prejudice to it. I am consequently not persuaded that any extension of time should be granted.

Bristile's application to strike out paragraphs of the Buddhist Society's defence

53 There remains the application by Bristile to strike out pars 4, 7, 10 and 11 of The Buddhist Society's defence. Here, too, there is a preliminary issue which must be decided. This arises because The Buddhist Society contends that Bristile has not complied with O 59 r 9 in that there is no sufficient memorandum to the effect that the parties have conferred to try to resolve the matters giving rise to the application and the matters that remain in issue between the parties. The only memorandum filed by Bristile pursuant to O 59 r 9 is one to the effect that it has conferred with The Buddhist Society by way of a letter from its solicitors to The Buddhist Society's solicitors dated 11 October 1999 upon the issue of whether The Buddhist Society's defence ought to be struck out.

54 A memorandum to that limited effect is not one to the effect that the parties have conferred to try to resolve the matters giving rise to the application. A letter of complaint can hardly be regarded as if it were a conference.

55 It follows that no order can be made on Bristile's application unless the operation of O 59 r 9(1) is waived. That can only be done in a case of urgency or for other good reason (O 59 r 9(2)). There being no urgency the operation of the rule can, in this case, only be waived for "other good reason".

56 Bristile contends that there is "other good reason". Because the application by Bristile was filed on the 21st and therefore last available day, there was, it contends, no other opportunity for conferral than that by way of its letter. However that overlooks the fact that conferral could, and should, have taken place earlier.

57 Bristile next contends that an application to strike out part of the statement of claim had already been filed on behalf of The Buddhist Society and, once it was inevitable that an application was to be heard in any event, it was convenient that both applications be listed and heard together, the opportunity remaining, by conferral, to limit the ambit of Bristile's application or even entirely to obviate the need for it prior to the hearing date. As matters have turned out there has been no agreement as regards any of these matters.

58 I will return to this issue after considering the merit of the application brought by Bristile.

59 It proposes, first, to strike out the plea of qualified privilege arising from an occasion of governmental and political discussion made in par 4.4 and par 11.3 of the defence.

60 I have, in Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 discussed, at 452 - 458, the extension of the common law defence of qualified privilege as enunciated by the High Court in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520.

61 I have there mentioned (at 452 - 453) that the defence of qualified privilege is grounded upon considerations of public policy and convenience and consequently affords protection only if the statement complained of was reasonably necessary to achieve the purpose underpinning the privilege.

62 I also said (at 453) that it followed, in England, from the requirement that there be a reciprocity of interest and duty that publication to anyone who has no relevant interest or duty will not ordinarily be protected and, that being so, where the publication is made to a large audience the defence of qualified privilege is unlikely to succeed for the reason that it will be a rare case in which all members of the audience have an interest in knowing the truth.

63 I also there mentioned (ibid) that communications to persons without a relevant interest or duty will nevertheless be protected if they are published reasonably, in the ordinary course of business, and no more widely than is required for the effective making of the communication to persons who do have a relevant interest or duty and if they would be privileged but for the additional, incidental, publication.

64 I set out in that case (at 453 - 457) in some detail the manner in which the law has since been altered as a consequence of the decisions of the High Court in Theophanous v Herald & Weekly Times Ltd [1994] HCA 46; (1994) 182 CLR 104 and Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211. Rather than attempt, once again, to summarise those developments I will simply repeat what I there said, as follows:

"Those cases decided that, in this country, the common law rules of defamation must conform to the requirements of the Constitution, in particular the implication that there is a freedom to publish material:

(b) of and concerning members of the Parliament of the Commonwealth of Australia which relates to the performance by such members of their duties as members of the Parliament or parliamentary committees;

It followed, from those cases, that this constitutional implication 'precluded an unqualified application in Australia of the English common law of defamation in so far as it continued to provide no defence for the mistaken publication of defamatory matter concerning government and political matters to a wide audience': see Lange (at 557 - 558).

The court in Lange considered both those provisions of the Constitution which protect the freedom of communication concerning political or government matters which enables the people to exercise a free and informed choice as electors and also those provisions which prescribe the system of responsible government and which imply a limitation on legislative and executive power 'to deny the electors and their representatives information concerning the conduct of the executive branch of government throughout the life of a federal parliament': see Lange (at 560 - 562). Their Honours went on to say, in this last respect (at 561), that:

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (232 paragraphs)

Bristile Ltd v The Buddhist Society of Western Australia Inc & Anor [1999] WASC 259 (16 December 1999)

Parties

Legislation Cited (1)

Cases Cited (25)