Supreme Court of WA|2001-06-15|Before: Mr P, Hasluck J

Cock & Anor v Hughes & Ors [2001] WASC 151 (15 June 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COCK & ANOR -v- HUGHES & ORS [2001] WASC 151

SWAN RADIO AND TELEVISION BROADCASTERS PTY LTD (ACN 008 689 745)

Defamation - Republication of words complained of - Alleged republication by listeners/viewers - Relevance of republication to claim for aggravated damages

Application for leave to amend claim dismissed with leave to replead

Cutler v McPhail [1962] 2 QB 292

Drummoyne Municipal Council v ABC (1990) 21 NSWLR 135

Fullam v Newcastle Chronicle & Journal Ltd [1977] 3 All ER 32

Giraffe World Australia Pty Ltd v ACCC [1998] FCA 1560; (1999) ATPR 41-669

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86

Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

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

Vitale & Ors v Bednall & Anor [2000] WASC 207

1 HASLUCK J: This is an application by the plaintiffs for leave to amend their statement of claim in terms of a further minute of amended statement of claim dated 10 May 2001. I will call this the May minute of proposed claim.

2 A number of procedural issues have been raised in the course of these proceedings to date and it will therefore be useful if I begin by looking briefly at the history of the matter.

3 The plaintiffs advance a claim in defamation arising out of certain remarks allegedly made by the first defendant, Robert Hughes, on or about 10 May 2000, in the course of a radio broadcast by the ABC and on or about the same date in the course of a television broadcast by the Nine Network. The remarks are said to have been made following upon a court appearance by Mr Hughes and his acquittal of charges of dangerous driving brought against him in the Broome Court of Petty Sessions.

4 The first plaintiff is the Director of Public Prosecutions. The second plaintiff is a legal practitioner employed by the DPP who acted as prosecutor in the case against Mr Hughes in the Court of Petty Sessions.

5 The plaintiffs allege that in the case of both broadcasts certain remarks made by Mr Hughes concerning the way in which the case against him was handled by the prosecution were defamatory. They say that the second and third defendants are liable to the plaintiffs as broadcasters for republishing the first defendant's remarks.

6 A writ of summons was issued by the plaintiffs on 12 May 2000, bearing an indorsement of claim. After various exchanges between the solicitors for the respective parties, the plaintiffs applied for leave to amend the statement of claim in terms of a minute dated 8 December 2000. I will call this the December minute of proposed claim.

7 In response to various objections to the December minute of proposed claim, I handed down reasons for judgment dated 5 February 2001 dealing with the issues that were then before me: Cock & Anor v Hughes & Ors [2001] WASC 24.

8 I observe in passing that in the February reasons for judgment I described at some length the procedural history of the matter, the nature of the words spoken by Mr Hughes in the course of each interview, the structure of the claim reflected in the December minute of proposed claim, the legal principles bearing upon the application for leave to amend and objections to the claim, and the imputations which were said by the plaintiffs to arise from the words complained of.

9 I will not repeat what I said on that occasion, save to note that leave to amend will generally not be allowed if the proposed claim is likely to be struck out as failing to disclose a reasonable cause of action or if it might prejudice, embarrass or delay the fair trial of the action. Further, a claim will not be struck out at the interlocutory or pre-trial stage of the proceedings unless the claims advanced by the plaintiffs are untenable or manifestly groundless. Upon a striking-out application, one proceeds upon the basis that the material facts and particulars pleaded by the plaintiff are assumed to be true for the purposes of the application.

10 I summarised the nature of the claim reflected in the December minute at par 37 to par 41 of the February reasons. I said that the claims being advanced by the plaintiffs were (a) a claim against Mr Hughes arising out of the Bartlett ABC radio broadcast; (b) a further claim against Mr Hughes arising out of the Bartlett ABC radio broadcast, this being referable to a publication to the radio audience in circumstances where such a publication was a foreseeable consequence of the interview; (c) a claim against the ABC arising out of the radio broadcast, this being referable to a republication of the remarks in question; (d) a claim against Mr Hughes arising out of the Grimshaw Nine Network television broadcast; (e) a claim against the third defendant arising out of the television broadcast, this being referable to a republication of the first defendant's allegedly defamatory remarks.

11 I noted that causes of action were said to arise against each of the defendants because Mr Hughes was responsible for publishing the words complained of and the second and third defendants were responsible for the alleged republication. I noted that the plaintiffs relied upon various matters which were said to provide a basis for a claim for damages against each defendant, including compensatory, aggravated and exemplary damages.

12 The plea concerning aggravated damages in the December minute was contained essentially in par 30 which provided that by reason of the matters referred to in par 29 the first defendant's conduct in defaming the plaintiffs and thereafter "was and is unreasonable, unjustified and lacking in bona fides in a manner which has aggravated the distress and damage to the plaintiffs and the plaintiffs thereby have a claim for aggravated damages against the first defendant".

13 In my review of the relevant legal principles, I referred to a number of previously decided cases in which it is suggested that in a case of republication a plaintiff has a choice of either complaining separately of each republication or relying upon such republication simply upon the issue of damages. See Speight v Gosnay (1891) 60 LJQB 231; Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 and Sims v Wran [1984] 1 NSWLR 317.

14 As a consequence of the February reasons, certain portions of the December minute were struck out, but with leave to replead. There have been various exchanges between the solicitors for the respective parties concerning the proposed form of the repleading. The upshot of those exchanges is that the plaintiffs now seek leave to replead in terms of the May minute of proposed claim.

15 The amendments made to the December minute of proposed claim are extensive, but my summary of the structure of the claim mentioned earlier in these reasons continues to apply. Importantly, for present purposes, new pars 8.3, 8.4, 21.3 and 21.4 have been introduced, apparently with a view to underpinning the plaintiffs' claim for aggravated damages against Mr Hughes in respect of an alleged republication of his remarks by listeners/viewers who were privy to the radio broadcast and the television broadcast. Thus, one finds that par 30 has been amended to include reference not only to the matters set out in par 29 as a basis for aggravated damages, but also to the matters referred to in par 8.3 and par 8.4 (the radio broadcast) and par 21.3 and par 21.4 (the television broadcast).

16 The first defendant has raised a number of objections concerning the revised aggravated damages plea. It contends that the proposed pleas in par 8.3, par 8.4, par 21.3 and par 21.4 are not in proper form and the plaintiffs should not be allowed leave to file a statement of claim in the terms of the May minute. The first defendant submits also that the proposed amendments to par 20.2 are embarrassing because a variety of expressions have been used to define the acts of broadcasting for which the third defendant is said to be responsible.

17 I will deal with each of these areas of objection in turn. I note in passing that the second defendant objected formally to an amendment in terms of the May minute, but simply adopted the submissions advanced by counsel for the first defendant. The third defendant did not object to an amendment in terms of the May minute.

18 The plaintiffs plead in par 8 of the May minute of proposed claim that the first defendant's radio publication was made in circumstances where (per 8.1) the first defendant's words were to his knowledge communicated to the ABC for radio broadcast or, in the alternative (per 8.2), if the first defendant is not liable as a direct participant, it was (per 8.2.1) the natural and probable consequence that the words would be republished by the second defendant or (per 8.2.2) the first defendant authorised republication by the second defendant or (per 8.2.3) the first defendant intended that the words would be republished by the second defendant.

19 In par 8.3, being the paragraph principally in dispute, the plaintiffs go on to say that the first defendant's radio publication was made in circumstances where, as to the issue of aggravated damages only, the first defendant deliberately elected to publish the words complained of by radio so as to maximise the distribution of his defamatory statements of and concerning the plaintiffs. They plead in per 8.3.1 that it was the natural and probable consequence (emphasis added) of the publication to listeners/recipients of the radio broadcast that "the sense and substance and defamatory content of the publication would be republished by those listeners/recipients".

20 I pause to emphasise that what is being referred to in the new and contentious par 8.3 (unlike the plea in par 8.2 concerning republication by the ABC) is an alleged republication by listener/recipients (emphasis added) of the radio broadcast. This new plea is said to be directed "to the issue of aggravated damages only."

21 The particulars provided in support of the new plea, broadly described, include reference to matters set out in par 9(a) and (b), that is to say, that the first defendant made the radio broadcast in the course of an interview on Mr Bartlett's radio programme and the first defendant knew that the interview would be broadcast contemporaneously, or by way of a pre-recorded broadcast by the ABC upon its radio broadcast.

22 The particulars also include reference (per 8.3.1(b) and (c)) to the nature and tenor of the words complained of being allegedly scandalous and likely to excite the interest of listeners/recipients and cause them to repeat the sense and substance of the defamatory matter as the publication was made in an unrestrained form and without any terms of qualification.

23 It is said further (per 8.3.1(d)) that the first defendant consistently made reference to the scandalous and public interest nature of the words complained of with specific reference being made to certain phrases in the interview such as "I think and I hope that it will be a substantial political setback for him". The plaintiffs by their particulars (per 8.3.1(e)) rely also upon references made to the first defendant's book about the trial in the Broome Court of Petty Sessions.

24 The plaintiffs plead in 8.3.2 (which draws in the prefatory words to pars 8 and 8.3) that, as to the issue of aggravated damages only, the first defendant deliberately elected to publish via the radio broadcast so as to maximise the extent of the distribution of his defamatory statements and in doing so authorised (emphasis added) the listeners/recipients of the first defendant's radio publication, as broadcast by the second defendant, to so republish the sense and substance and defamatory content of the publication. The particulars provided in support of that plea correspond to the summary of the particulars I have just provided concerned the plea in 8.3.1.

25 The plaintiffs plead in 8.3.3 (which draws in the prefatory words to par 8 and 8.3) that, as to the issue of aggravated damages only, the first defendant deliberately elected to publish the words complained of via radio broadcast so as to maximise the extent of the distribution of his defamatory statements and further in doing so intended (emphasis added) that the listeners/recipients of the first defendant's radio publication, as broadcast by the second defendant, would republish the sense and substance and defamatory content of the publication. The particulars provided in support of that plea correspond with the particulars given earlier.

26 The plaintiffs adopt a similar approach in seeking to plead facts and matters directed to the issue of aggravated damages only in par 21.3 concerning the first defendant's television publication. The Grimshaw television interview, of course, was different from the Bartlett radio interview, but the general thrust of the plea is much the same. In other words, the particulars include reference to the nature and tenor of the television broadcast in support of the notion that viewers/recipients would republish the first defendant's words. Reference is made to phrases suggesting that the purpose of the prosecution was to persecute a writer in circumstances that would give rise to good publicity for those associated with the prosecution.

27 Looked at in overview, then, having regard to observations about republication contained in the February reasons concerning Speight v Gosnay (supra) and Sims v Wran (supra) the plaintiffs assert that the first defendant is liable to them for the republication of the radio and television broadcasts. They then go on to say that, as a matter bearing upon the issue of aggravated damages only, there are aspects of his conduct, including the nature and tenor of the unrestrained comments made by him on the occasion of each interview, which led or were likely to lead to the "sense and substance" of the words used being republished by listener/viewer recipients.

28 In 8.3 the plea is underpinned by reference to three discrete grounds, namely, that the alleged republication was the natural and probable consequence of the first defendant's actions (8.3.1); or was authorised by him (8.3.2); or was intended by him (8.3.3).

29 In 8.4 and 21.4, the plaintiffs plead further that the 8.3 matters became known to the plaintiffs who thereby had the injury to their feelings aggravated by reason of their knowledge of the mode and likely spread of the words complained of.

30 The effect of the amended par 30 is that the plaintiffs seek to rely upon these extra matters in suggesting that the first defendant's conduct was unreasonable, unjustified and lacking in bona fides in a manner which has aggravated the distress and damage to the plaintiffs.

31 It will be useful at this point to return to some of the legal principles bearing upon republication and aggravated damages. The relevant principles are set out in Gatley on Libel and Slander (9th ed) par 6.26 to par 6.37 (republication) and at par 9.1 to par 9.14 (as to compensatory damages and aggravated damages).

32 At common law, every republication of a libel is a new libel and, if committed by different persons, each one is liable as if the defamatory statement had originated with him. It follows that in the circumstances of the present case the plaintiffs are in a position to advance an arguable case against the second and third defendant in respect of the alleged republication by those defendants of the words uttered initially by the first defendant.

33 Where a defendant's defamatory statement is voluntarily republished by the person to whom he published it or by some other person, the question arises whether the defendant is liable for the damage caused by that further publication. According to Gatley at par 6.30, in such a case the plaintiff may have a choice: he may (a) sue the defendant both for the original publication and for the republication as two separate causes of action or (b) sue the defendant in respect of the original publication only, but seek to recover as a consequence of that original publication the damage which he has suffered by reason of its repetition, so long as such damage is not too remote.

34 The defendant can be rendered liable for the republication or for the damage caused by it where the republication was, in the circumstances, of the case, the natural and probable result of the original publication or where he authorised or intended the republication. Gatley suggests that the notion of authorising or intending the republication are probably examples of the broad principle of liability being attached where the republication was the natural and probable result of the original publication.

"There are many cases in which the original publisher authorises or intends the republication. Thus if a person submits material to a newspaper or tells a reporter a story defamatory of the plaintiff without restriction in its publication, makes statements at a press conference or issues a press release, he will be liable for the publication in the newspaper. An express or authority or request is unnecessary. Similarly, one who writes a libel in one edition of a newspaper knowing that it will be republished in other editions of that newspaper in other jurisdictions will be liable in respect of those, too."

36 The plaintiffs in the present case clearly seek to rely upon these principles. Thus, as I have already indicated, they seek to render the first defendant liable for republication of his words by the second and third defendants on the basis that publication by these defendants was the natural and probable consequence of his interviews. They do not seek to render the first defendant liable for republication of his words by those listener/viewer recipients who tuned into the broadcasts, but they plead an alleged republication by listeners/viewers as a matter going to aggravated damages in respect of the publications for which the first defendant is said to be liable. They set out facts and matters bearing upon the alleged republication by listener/viewer recipients. As I have already indicated, for the purposes of a pre-trial application for leave to amend or to strike out, I must assume that the plaintiffs will be able to adduce evidence at the trial in support of the allegations in their pleading.

37 It is against this background that the plaintiffs set up the natural and probable consequence pleas in par 8.3.1 and par 21.3.1, the authorisation plea in par 8.3.2 and par 21.3.2 and the intention plea in par 8.3.3 and par 21.3.3.

38 It is apparent from the principles summarised in Gatley that there is an arguable basis in law for advancing such a plea provided the facts and matters pleaded in support are clear and sufficient. The decided cases mentioned by Gatley, some of which were touched upon in my February reasons, also lend support to the plaintiffs' position.

39 In Speight v Gosnay (supra), the defendant uttered a slander consisting of a false imputation upon the chastity of the plaintiff, an unmarried woman, in the presence of the plaintiff's mother. The mother repeated it to the plaintiff, who repeated it to the man to whom she was engaged to be married, and he broke off the engagement. There being no evidence that the defendant authorised or intended the repetition of the slander, or that he knew of the plaintiff's engagement, the court held that an action of slander could not be maintained against him.

40 Lopes LJ said that where special damage arises from the repetition of a slander, an action may be maintained against the person uttering the slander if he authorised or intended the repetition; or if the repetition was the natural consequence of his act; or, if there was moral obligation on the person in whose presence the slander was uttered to repeat it.

41 Hunt J relied upon this decision in Sims v Wran (supra) in holding that where a prominent politician makes a statement at a press conference, the natural and probable consequence of his act will be that his statement will be repeated in the media, thereby making him responsible for the republication thereof, and usually in whatever form in which that republication takes place.

42 In Slipper v BBC [1991] 1 QB 283, the statement of claim alleged that the defendants gave a private view to members of the press of a film which they broadcast a few days later and that reviews of this film in the press (which were likely to come to the attention of persons who had not seen the broadcast) repeated the sting of defamatory references to the plaintiff in the film. It was held by the Court of Appeal that these allegations provided a basis upon which the jury would be entitled to come to the conclusion that the defendants anticipated that there would be reviews and that they would repeat the sting. This was because it was impossible to review the film without recounting the basic story.

43 The Court of Appeal held that the questions whether the reviews reproduced the libel and whether the defendants invited such reviews depended on their facts and, thus, were matters for the jury. It could not be said that the case was a plain and obvious case justifying striking out and the matter could not be resolved without the necessary findings of fact by the jury. Accordingly, the decision not to strike out the claim had been a correct one.

44 Bingham LJ cited with approval a proposition expressed by Lord Wrenbury in Weld-Blundell v Stephens [1920] AC 956 at 999 that a defendant could be liable not only if he had authorised repetition of a slander by a third person, but also if from the surrounding circumstances it is to be inferred that he anticipated and wished that the third party should repeat the slander.

45 In Webb v Bloch (supra), Isaacs J of the High Court noted at 363 that in the circumstances of that case publication of the libel did not consist merely in the distribution of the paper vehicle which embodied it. To publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle.

46 When one turns to the question of damages, it is apparent from Gatley at par 9.2 that the purpose of general damages is to compensate the plaintiff for the effects of the defamatory statement. General damages serve to act as a consolation to the plaintiff for the distress he suffers from publication of the words complained of, to repair the harm to his reputation and as a vindication of his reputation. Compensatory damages may include any social disadvantages which result and may also include the natural injury to his feelings. It is proper to take into account any kind of high-handed, oppressive or insulting behaviour by the defendant.

47 Gatley notes that it is difficult to draw a clear line between compensatory general damages and aggravated damages. It might be better to say simply that certain features of a case might aggravate the damages. The conduct of the defendant, his conduct of the case, and his state of mind are all matters which the plaintiff may rely on as aggravating the damages.

48 In Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, the High Court said that it may be taken into consideration as improperly aggravating the injury done to the plaintiff if there is a lack of bona fides in the defendant's conduct or his conduct is improper or unjustifiable.

49 Let me now turn to the defendants' criticisms of the May minute of proposed claim.

50 Counsel for the first defendant raised an issue as to whether the May minute of proposed claim had sufficiently pleaded that there was a republication of the words complained of by listener/viewer recipients. In the context of a long and complex pleading, one has to acknowledge that it is difficult at times to keep hold of the thread binding together various prefatory statements and subordinate and related paragraphs. To my mind, however, a common sense reading of the relevant passages of the claim adequately conveys the notion that, on the plaintiffs' case, it was a natural and probable consequence of the first defendant's publication of the words on radio and television that the sense and substance of the words would be, and as a matter of inference were, in fact, published by listener/viewer recipients. In arriving at that conclusion, I give weight to those passages of the pleading in which the plaintiffs repeat 9(a) and (b) (and likewise 21.2.3(a) and (b)) and, thus, bring into play the allegation that the first defendant is liable for each and every republication of the words complained of.

51 It was submitted also on behalf of the first defendant that, notwithstanding some of the expressions of opinion in the decided cases, there is no clear authority for the proposition that the plaintiffs in the present case can claim aggravated damages in respect of a republication by listener/viewer recipients as a form of compensation for the injury allegedly arising from an earlier republication without pleading simultaneously that the plaintiffs were defamed by a republication of that kind.

52 In my view, in the absence of any decisive authority to the contrary, the passage in Gatley at par 6.29 and Sims v Wran (supra) are sufficiently persuasive for present purposes to support a plea of the kind reflected in 8.3 and 21.3 that an alleged republication by listener/viewer recipients can be used "as to the issue of aggravated damages only".

53 Further, and in any event, it is in the nature of a claim for aggravated damages that if a plaintiff can point to some aspect of the conduct which is high-handed or has caused particular distress, then facts and matters of this kind can be pleaded in support of a claim for aggravated damages. There seems to be no reason in principle why conduct in the nature of a further republication for which the defendant is arguably responsible should not be regarded in such a light. It follows that I do not consider that par 8.3 and par 21.3 should be struck out upon this ground of objection or leave to amend not be allowed.

54 The first defendant submitted that in relation to each of par 8.3 and par 21.3 use of the words "sense and substance of the defamatory content" are embarrassing. It was said to be entirely unclear as to what words the plaintiffs allege were republished by the listener/viewer recipients.

55 I have already noted that Isaacs J in Webb v Bloch (supra) indicated that to publish a libel is to convey by some means to the mind of another the defamatory sense embodied in the vehicle. It is significant that in Speight v Gosnay (supra) it was not thought to be a bar to the claim being advanced that the slanderous words may not have been repeated word-for-word in the form of the original utterance. In cases such as Sims v Wran (supra), the principle of liability for republication does not appear to have been constrained by the notion that what a politician said at a press conference may not be reproduced exactly by those members of the media in attendance at the conference. I note also that in Gatley at par 6.32 the learned author says that the question is whether the defendant authorised the substance and the sting of the libel. The learned author goes on to say that the mere fact that the editor of a newspaper has struck out stronger passages or altered the article in places will not affect the liability of the sender. It would be otherwise if the alterations affected the sense of what the defendant had stated.

56 The Court of Appeal in Slipper v BBC (supra) seemed to accept that liability could flow from a republication of the sense and substance of the defamatory material, for in that case the claim concerned the publication of film reviews which conveyed the sense and substance of the film that was said to be defamatory.

57 Accordingly, in the circumstances of the present case, I am not persuaded that the paragraphs in question should be struck out on this ground. It may be a matter of evidence to be dealt with at the trial as to what exactly was said by those listener/viewer recipients who are said to have republished the words complained of and as to whether the republication did correspond in sense and substance to what was said originally. Nonetheless, to echo the language of the Court of Appeal in Slipper v BBC (supra), the claim as presently presented is not a plain and obvious case justifying a striking out of the passages in question.

58 The first defendant does not challenge the adequacy of the plaintiffs' pleas in 8.3.1 or 21.3.1 wherein the plaintiffs assert that it was the natural and probable consequence of the first defendant's words being broadcast on radio and television respectively that the sense and substance of the same would be republished by listener/viewer recipients, save for the point I have just dealt with concerning the sense and substance of the words. The first defendant submits, however, that par 8.3.2 and par 21.3.2 fail to disclose a cause of action because no adequate material facts have been pleaded to support the plea that the first defendant "authorised" the alleged republications.

59 It is apparent from the decided cases and especially from Slipper v BBC (supra) and from the observations of Lord Wrenbury in Weld-Blundell v Stephens (supra) that authority to republish can be inferred. Particulars must obviously be provided bearing upon that issue, but that is what the plaintiffs have endeavoured to do in the present case. I consider that the plaintiffs are entitled in that regard to rely upon the nature and tenor of the words actually used.

60 One can test this proposition by examining a hypothetical case. If a person in the course of a private conversation about an intimate matter prefaces his remarks with the cautionary words that everything he says is to be heard in the strictest confidence, or is to be regarded as "strictly between ourselves", it becomes difficult to argue that a wider publication was authorised. On the other hand, if a politician makes it clear from his remarks at a well-attended press conference that he is raising certain allegations at the start of a campaign designed to achieve some reform, and in the hope that what he says will be repeated far and wide with a view to drawing attention to the issue, a plaintiff is in a better position to argue that the speaker in this second case intended that those present at the press conference - the listener/viewer recipients - should repeat what he had to say in other places with the result that republication was not only the natural and probable consequence of his actions but also a further step that he can be said to have intended and/or authorised.

61 The former of these two hypothetical situations resembles the fact situation in Speight v Gosnay (supra). The Court in that case concluded that there had not been an authorised repetition of the slander. The Court clearly contemplated, however, that what amounted to authorisation would depend upon the circumstances of the particular case and authorisation could be inferred from conduct and the nature of the words used.

62 The plaintiffs say that there are indications in the circumstances of the present case, and in the nature of the words used, that the first defendant was not averse to his criticisms of the prosecution being widely debated. In my view, having regard to the previously decided cases, the plaintiffs have raised an arguable case on the pleading that a republication by listeners/viewers of the kind described in the minute of proposed claim was authorised by the first defendant. I am not prepared to strike out par 8.3.2 and par 21.3.2 on this ground.

63 The first defendant submits that par 8.3.3 and par 21.3.3 fail to disclose a cause of action in that no adequate material facts have been pleaded to support the plea that the first defendant "intended" the alleged republication. It follows from earlier discussion concerning the legal principles, and especially from the relevant passages in Gatley and from the reasoning in Speight v Gosnay (supra) that it is open to the plaintiffs as a matter of law to contend that the defendant is liable if he intended the republication. For reasons similar to the reasons I have just given concerning authorisation, I consider that the plaintiffs are entitled to rely upon the nature and tenor of the words actually used by the first defendant in providing particulars in support of this plea. To my mind, the plaintiffs have set up an arguable case in their pleading, with the result that the plea should not be struck out as being untenable.

64 Counsel for the first defendant submitted also that the pleas in their present form were embarrassing in not having grouped the pleas in pars 8.3, 8.4, 21.3 and 21.4 concerning aggravated damages with the pleas concerning that issue in pars 29 and 30. However, I consider that, in the context of a plea which is expressly confined to the claim for aggravated damages, the plea in its present form in each case is sufficiently clear and should not be characterised as embarrassing. I do not consider the plaintiffs are necessarily obliged to group all the facts and matters relied on in support of the claim for aggravated damages in one section of the statement of claim. It is quite clear from par 30 in its amended form, and from the language of 8.3 and 8.4 (and, thus, from 21.3 and 21.4) that the pleas in those paragraphs are directed to aggravated damages only.

65 I must now turn to par 21.2 and the submission made by the first defendant that the proposed amendments to par 21.2 are embarrassing with the result that leave to amend in the manner proposed should not be allowed. The suggestion is that the plaintiffs have failed to use a consistent description of the third defendant and to media outlets arguably under its control or to which it is related.

66 The defendant says that in par 4.2 it is pleaded that the third defendant is the owner of a commercial television licence "STW Channel Nine" and that it broadcast the "Channel Nine Today morning television programme". In par 21.1 the pleading refers to the "Nine Network television stations" without definition or explanation. The pleading also refers to the "Nine Network Today programme". The first defendant refers to other areas of the pleading also in which different descriptions are allegedly used.

67 The critical allegation is reflected in par 18 that "On or about 10 May 2000 from Broome in the State of Western Australia the first defendant spoke and thereby published to, inter alia, Ms Tracy Grimshaw the presenter of Channel Nine's Today morning television programme, and in the circumstances described at par 21 herein and in the context of the words of Ms Tracy Grimshaw described below, the following words, of and concerning the first and second plaintiffs ... ". The words comprising the interview are then set out. This is described as the first defendant's television programme.

68 In par 21.1, the plaintiffs plead that the first defendant made the first defendant's television publication in circumstances where (per 21.1) the first defendant made the first defendant's television publication to the Nine Network of television stations by way of live satellite linkup for live, alternatively pre-recorded broadcast, such publication to be broadcast immediately, further and in the alternative by way of pre-recorded interview, upon the Nine Network Today programme which was broadcast in the State of Western Australia by the third defendant.

69 The plaintiffs go on to plead (per 21.2.1) that further and in the alternative the first defendant intended that the first defendant's television publication be republished upon the Channel Nine Network Today show and by all of Nine Network broadcasters, including the third defendant. The plaintiffs say further (per 21.2.2) that the first defendant authorised republication by the Nine Network and its local broadcasters or (per 21.2.3) that republication was the natural and probable consequence. In each case, however, the newly formulated particulars refer not to the Nine Network's broadcasters or its local broadcasters but to its "network of regional television stations".

70 I am conscious that at par 81 of my February reasons, being reasons delivered prior to the newly formulated particulars, I touched on the question now before me and suggested that any lack of precision as to the identity of the entities involved in the alleged republication could be dealt with by the provision of further and better particulars. In the event, however, the newly formulated particulars appear to have complicated the issue by introducing another variation to the relevant description.

71 In my view, the lack of consistency in the descriptions of the third defendant and its outlets means that the first defendant and other defendants are bound to have difficulty in apprehending what outlets are alleged to fall within the notion of the Nine Network or Nine Network's broadcasters. Accordingly, the plea in par 21.2 of the May minute of proposed claim is embarrassing. It follows that I am not prepared to allow leave to amend in that form. The plaintiffs will be allowed leave to bring in a fresh minute of proposed claim in the expectation that the plaintiffs will use a consistent description throughout the pleading.

72 It follows from earlier discussion, including the February reasons, that, in my view, the May minute of proposed claim discloses a reasonable cause of action in respect of the various claims advanced by the plaintiffs as set out in my earlier summary. I am not satisfied that the paragraphs challenged by the first and second defendants should be struck out as failing to disclose a reasonable cause of action or as embarrassing, save for par 21.2. I will allow to the plaintiffs leave to submit a further minute of proposed claim within 14 days. I will hear from counsel for the parties as to whether any further orders or directions are required.

Cock & Anor v Hughes & Ors [2001] WASC 151

At a glance

Court

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Before

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Judgment (88 paragraphs)

Cock & Anor v Hughes & Ors [2001] WASC 151 (15 June 2001)

Parties

Cases Cited (5)