Supreme Court of WA|2009-09-23|Before: Ms J, Hasluck J

WOOKEY -v- QUIGLEY [2009] WASC 284 (23 September 2009)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : WOOKEY -v- QUIGLEY [2009] WASC 284

Defamation - Application to strike out defence in defamation action - Rules concerning Polly Peck defence - Meaning of 'publish' and 'republish' in context of defamation actions - Whether the imputation pleaded by the defendant as an alternative meaning can be characterised as a meaning that is less injurious and not substantially different from the meaning alleged by the plaintiff - Whether a person who authorises republication may be held liable for damages - Finding that statement of defence should be struck out in its entirety but upon the basis that the defendant will be granted leave to replead within a time fixed by the court

Rules of the Supreme Court 1971 (WA), O 20 r 19(1)(a), O 20 r 19(1)(b), O 20 r 19(1)(c)

Order for statement of defence to be struck out in entirety with leave granted to the defendant to replead within a time to be fixed by the court

Cock v Hughes [2001] WASC 24

E Hulton & Co v Jones [1910] AC 20

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

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188

Lewis v Daily Telegraph [1964] AC 234

Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Polly Peck (Holdings) PLC v Trelford (1986) QB 1000

Sim v Stretch [1936] 2 All ER 1237

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1

Slipper v British Broadcasting Corporation (1991) 1 QB 283

Smith v Littlemore (1996) 15 WAR 289

Taylor v Jecks (1993) 10 WAR 309

West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 250 ALR 363

1 The plaintiff, Darryl Anne Wookey, has applied to strike out the statement of defence in this matter as appears from a chamber summons dated 17 July 2009. She seeks an order that the defence be struck out or alternatively those parts of the defence identified in the schedule to the chamber summons be struck out pursuant to O 20 r 19(1)(a), (b) and (c) on the grounds that such pleadings do not disclose a reasonable defence or, in the alternative, are embarrassing.

2 It will be useful to begin by looking at the background to the dispute between the parties in overview before turning to the pleadings and the legal principles bearing upon an application to strike out of this kind. I will draw upon the pleadings in order to provide a coherent narrative but without purporting to arrive at any findings or assumptions about the underlying facts.

3 The pleadings in question are the plaintiff's amended statement of claim dated 17 March 2009 and the defendant's statement of defence dated 8 May 2009.

4 It appears to be common ground that the plaintiff and the defendant were in a relationship that ended in 1997. The defendant's two children from his former marriage were known to the plaintiff, and it is said that she saw something of them on an occasional basis from time to time.

5 The plaintiff and the defendant are legal practitioners and both have held responsible positions over the years. The plaintiff held the position of Acting Information Commissioner for Western Australia for a term of four years from 1 November 2003. It is said in her statement of claim that since 4 February 2008 she has been employed as a senior executive lawyer at the Australian Government Solicitor (AGS) in Canberra.

6 The defendant has been a member of the Legislative Assembly of Western Australia since early 2001 and has served as Acting Speaker of the Legislative Assembly. From 7 April 2005 to 13 November 2008 he was the Chairman of the Public Accounts Committee of the Parliament of Western Australia.

7 The plaintiff, by her statement of claim, alleged that by an email dated 24 July 2003 the defendant defamed the plaintiff by publishing to Deidre O'Donnell, the then Ombudsman of Western Australia, certain words of and concerning the plaintiff. In that email the defendant complained of conduct by the plaintiff concerning his two young daughters and explains that the email is being sent to the Ombudsman as an avenue of communication insisted upon by the plaintiff (the first publication).

8 The plaintiff alleged at par 4.1 of the claim that in its natural and ordinary meaning, the first publication complained of meant that the plaintiff had maliciously trained the defendant's two young daughters to deceive the defendant. Further imputations are set out at pars 4.2 to 4.4 of the claim.

9 It is said that by reason of the first publication the plaintiff has been greatly injured in her credit, character and reputation. Facts and matters which are said to have aggravated the damage to the plaintiff are then pleaded. For ease of reference, I will call these pleas collectively the 'aggravated damage to reputation plea'.

10 The plaintiff alleged that on or about 15 April 2005 the defendant published certain allegedly defamatory words of and concerning the plaintiff to persons then employed in the Office of the Information Commissioner in an email sent to the general email address of that office (the second publication).

11 It is said in par 8.1 of the claim that the second publication meant that the plaintiff was so lacking in moral rectitude as to maliciously train one of the defendant's daughters to deceive her father. Further imputations are pleaded at pars 8.2 to 8.6 of the claim.

12 Another email in essentially the same form was allegedly sent on the same date (the third publication) and is relied upon to support a plea of defamation at par 12.1 of the claim (followed by further imputations at pars 12.2 to 12.6).

13 A further email on the same date (the fourth publication) gave rise to a plea at par 16.1 that the fourth publication meant that the plaintiff was so lacking in moral rectitude as to conduct herself in such a way so as to maliciously damage the parental relationship between the defendant and his children. Further imputations are set out at pars 16.2 to 16.3 of the claim.

14 The plaintiff alleged that on or about 24 May 2005 the defendant published another defamatory email sent to the Office of the Information Commissioner (the fifth publication) which meant that the plaintiff was so lacking in moral rectitude as to selfishly aggravate the illness of the defendant's sick and hospitalised child daughter (par 20.1) and was so lacking in moral rectitude as to maliciously damage the parental relationship between the defendant and his child daughter (par 20.2).

15 Each of the second to fifth publication pleas were accompanied by the aggravated damage to reputation plea.

16 The plaintiff pleaded that on or about 10 December 2008 the defendant falsely and maliciously published to employees of the AGS in Canberra four letters containing words of and concerning the plaintiff. The letters are somewhat incoherent but include the names of the plaintiff and a man called David Everett with a photograph of the latter on the reverse side (the sixth publication).

17 The plaintiff pleaded in par 24 of her claim that in its natural and ordinary meaning the sixth publication meant that the plaintiff was conspiring with David Everett to commit criminal acts against the Australian Government.

18 The plaintiff pleaded that on or about 10 December 2008 the defendant falsely and maliciously published to employees of the AGS a letter allegedly containing words of and concerning the plaintiff which included reference to a 'graffiti job' (the seventh publication).

19 It was said at par 28 of the claim that in its natural and ordinary meaning the seventh publication meant that the plaintiff is a person of miserable, inadequate character (par 28.1) and had carried out criminal acts of graffiti on the defendant's boat and home on 12 October 2008 (par 28.2).

20 The plaintiff pleaded that on or about 10 December 2008 the defendant falsely and maliciously published to employees of the AGS a letter containing words of and concerning the plaintiff which included reference to David Everett and to a 'stupid woman' with a photograph of David Everett on the reverse side (the eighth publication).

21 It was said in par 32 of the claim that in its natural and ordinary meaning the eighth publication meant that the plaintiff is a person of such miserable, inadequate character that she has to live in an emotionally parasitic relationship with a criminal person.

22 Each of these publication pleas were accompanied by the aggravated damage to reputation plea.

23 The plaintiff pleaded that on or about 13 January 2009 the defendant published to a journalist Robert Taylor at The West Australian newspaper a letter dated 13 January 2009 which attached a copy of a redacted letter dated 23 December 2008 from the plaintiff's solicitors to the defendant. This allegedly contained certain words of and concerning the plaintiff to the effect that the defendant was troubled by threatening and disgusting letters for which the plaintiff was essentially responsible (the media publication).

24 It was said at par 36 of the claim that in its natural and ordinary meaning, the media publication meant that the plaintiff had made false allegations against the defendant (par 36.1) and was of a character that would deceptively make false allegations about the defendant in his capacity as a parliamentarian and personally (par 36.2).

25 The plaintiff pleaded also at par 38 that the media publication was made in circumstances where the defendant knew that the publication, or its gist, would be republished in The West Australian newspaper. These allegations were accompanied by the aggravated damage to reputation plea.

26 The plaintiff pleaded that on 17 January 2009 the defendant caused by reason of his earlier publication of the media publication an article by Robert Taylor to be published in The West Australian containing words of and concerning the plaintiff to the effect that the defendant was embroiled in a bitter dispute with the plaintiff and her lawyer over a series of letters containing claims about the plaintiff and her current partner David Everett (the ninth publication).

27 It was said at par 40.1 of the claim that in their natural and ordinary meaning, the words in the ninth publication meant that the plaintiff had made false allegations about the defendant. Further imputations were pleaded at pars 40.1 to 40.4. The plaintiff added the aggravated damage to reputation plea.

28 The plaintiff pleaded that on 19 January 2009 during the course of an interview broadcast on radio station 6PR hosted by Simon Beaumont, the defendant spoke and caused to be broadcast to listeners certain words of and concerning the plaintiff to the effect that the plaintiff had improperly accused the defendant of writing anonymous letters to her employer and workmates at the AGS in Canberra with reference being made to various personal matters and the relationship between the parties which was terminated in October 1997 (the tenth publication).

29 It was pleaded at par 44.1 of the claim that in its natural and ordinary meaning the tenth publication meant that the plaintiff had maliciously caused her solicitors to issue a false complaint against the defendant at Christmas in order to cause maximum distress to the defendant and his family. Further imputations were set out at pars 44.2 to 44.4 of the claim. The plaintiff included the aggravated damage to reputation plea.

30 The plaintiff in her claim referred also to certain steps allegedly taken by the defendant in response to the plaintiff's initial complaint about publication of the sixth, seventh and eighth publications.

31 It was said that the defendant was engaged in a systematic course of conduct to deter the plaintiff from instituting and proceeding with her defamation action against the defendant. The conduct complained of is said to have a bearing upon the plaintiff's claim for aggravated damages.

32 The plaintiff claimed damages and aggravating damages against the defendant in respect of the various publications including such further orders or other relief as the court might seem just.

33 It will be useful to begin by looking at the statement of defence in overview before proceeding to certain, more particular criticisms advanced by the plaintiff that are said to justify the application to strike out.

34 As to the first to fifth publications the defendant admits sending the subject emails on the respective dates pleaded but denies that they were published to, or intended to be published to, any persons other than the persons to whom they were addressed, namely, the Ombudsman (first publication) or the plaintiff (second to fifth publications). Further, the defendant denies that any of the publications bore the defamatory imputations pleaded.

35 The defendant then, at pars 6 and 7, sets up a 'Polly Peck' line of defence to the effect that the publications contained certain 'assertions' (or meanings) other than the meanings contended for by the plaintiff which were true in substance and in fact.

36 The defence contains some additional paragraphs bearing upon the circumstances in which the emails were sent. The plaintiff's application to strike out is principally directed to the adequacy of the defendant's Polly Peck plea.

37 As to the sixth, seventh and eighth publications the defendant at par 13 of the statement of defence denies that he sent, published, or was the author of these publications and denies each and every allegation in pars 23 to 34 of the statement of claim. The application to strike out does not affect these pleas.

38 As to the media publication the defendant admits that on or about 13 January 2009 he published to the journalist Robert Taylor the letter complained of but denies that the media publication conveyed, or was capable of conveying, the imputations pleaded in par 36 of the statement of claim or any defamatory meaning of and concerning the plaintiff.

39 In par 16 of the defence an alternative meaning is contended for which brings under notice again the rules concerning a Polly Peck plea.

40 As to the ninth publication, the defendant denies that the media publication was made in circumstances where the defendant knew and intended that the publication, or its gist, would be republished in The West Australian newspaper. The publication of the newspaper article is admitted but the defendant denies that he caused its publication as alleged.

41 The defendant admits the allegation in par 40.1 that the words complained of meant or were understood to mean that the plaintiff had made false allegations about the defendant (and pleads also that the imputation was true). He admits also participating in a radio interview with Simon Beaumont on 19 January 2009. The defendant denies the other imputations complained of.

42 As to the tenth publication, the defendant denies that it conveyed or was capable of conveying the imputations pleaded at par 44 of the claim or any defamatory meaning of and concerning the plaintiff, and contends for an alternative meaning pursuant to the Polly Peck rules.

43 The statement of defence contains also a response to the further publications and to facts and matters pleaded against the defendant relating to damages.

44 It will now be useful to look at the legal principles bearing upon the matters in controversy between the parties.

45 Order 20 rule 19 of the Rules of the Supreme Court provides that the court may strike out any pleading on the ground that it discloses no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action. No evidence is admissible on such an application. The convention is that all the facts alleged must be accepted as true.

46 It remains a rule of practice that the plaintiff must set out by way of a pleaded imputation the meaning which he or she alleges ordinary readers would infer from the words complained of unless the defamatory meaning is so clear that distillation is obviously unnecessary: Taylor v Jecks (1993) 10 WAR 309. The imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff is charged: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 687.

47 Each imputation must reflect a discrete assertion with the result that imputations which are repetitive will be struck out as embarrassing. A reasonable test of distinctness is that of whether the justification of each imputation would be substantially different: Lewis v Daily Telegraph [1964] AC 234 at 282.

48 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community: Sim v Stretch [1936] 2 All ER 1237 per Lord Aitkin at 671; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447.

49 The court will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unduly suspicious or naïve or avid for scandal and who is not inhibited by strict rules of construction: Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1.

50 The ordinary and natural meaning of words may be either the literal meaning or an inferred or an indirect meaning, not requiring the support of extrinsic facts. What the ordinary man, not avid for scandal, would read in the words must be a matter of impression. Impression will inevitably include a certain amount of loose thinking: Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 141 CLR 632.

51 It emerges from these principles that care must be exercised in ensuring that the imputation crafted from the words complained of truly reflects the meaning of the words and is one which is capable of adversely affecting the plaintiff in the estimation of right-thinking members of society.

52 It is important to understand also that defamation is a tort of strict liability and concerns the effect upon the recipient of the publication, not the intention or lack of intention of the defendant publisher. For example, it does not matter that the defendant may have intended no harm to the plaintiff in the course of portraying a fictitious person. The defendant will be liable if the plaintiff can establish that the words were understood as referring to him or her: E Hulton & Co v Jones [1910] AC 20.

53 These basic principles, which are principally referable to the pleading of the plaintiff's claim, must also be carefully considered in approaching the rules applicable to a Polly Peck defence; that is, a defence of the kind referable to discussion in Polly Peck (Holdings) PLC v Trelford (1986) QB 1000.

54 That is because a review of the decided cases suggests that there is general, although not universal, support for the proposition that a plaintiff who has pleaded specific meanings by way of false innuendo may only succeed at trial on some other meaning if it is not substantially different from and not more injurious than the meanings pleaded. This has resulted in the Court of Appeal in this State holding that a defendant may plead and justify alternative meanings that are less injurious and not substantially different from those pleaded by the plaintiff: West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 250 ALR 363 at [31].

55 In the Elliott case McLure JA made these observations at [74]:

I start with unchallenged propositions. First, a Polly Peck defence is available in this jurisdiction. Second, the scope of the defence is delineated by the extent to which a plaintiff can depart from his or her pleaded imputations. Third, a Polly Peck defence has never extended to separate and distinct statements in the words complained of.

56 Her Honour went on to observe at [75] that a Polly Peck defence of its nature must permit a defendant to plead and justify an imputation which is different from the imputations pleaded by the plaintiff in the sense that different evidence would be required to justify it.

57 A consideration of the decided cases indicates that in examining the adequacy of the Polly Peck plea the crucial question is whether the imputation pleaded by the defendant as an alternative meaning can be characterised as a meaning that is less injurious and not substantially different from the meaning alleged by the plaintiff.

58 The current position is summarised in Patrick George: Defamation Law in Australia in this way at page 249:

The plaintiff may be permitted to depart from the meaning pleaded where the alternative meaning is a shade or nuance of the meaning already pleaded and so in substance is close to or the same as the meaning already pleaded. Otherwise, the plaintiff will not be entitled to seek a verdict on a different meaning and is restricted to the meaning pleaded or the shade or nuance of that meaning, and subject to the proviso 'that the defendant suffers no prejudice, embarrassment or unfair disadvantage as 'a result.

This flexibility towards interpretation has seen the development of the principle that a defendant may assert a meaning to the matter complained of different from the meaning pleaded by the plaintiff and then seek to defend that different meaning. As the court or the jury is not limited to the plaintiff's meanings, the defendant would be entitled to establish defences based upon meanings different from that pleaded by the plaintiff ('the Polly Peck defence').

However, the defendant must plead the defence of justification so as to inform the plaintiff and the court precisely what meaning the defendant will seek to justify if that differs from the meaning pleaded by the plaintiff.

59 In Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, Gillard AJA observed at 6 that the court must be vigilant to ensure that what is pleaded as a Polly Peck defence is a proper and permissible one.

60 It has been held that imputations will be struck out at an interlocutory stage of the proceedings if they are untenable or manifestly groundless: Smith v Littlemore (1996) 15 WAR 289. These principles will also have a bearing upon the question of whether the pleaded imputations are embarrassing or likely to prejudice or delay the fair trial of the action.

61 For the sake of completeness, I should note in passing that by s 26 of the Defamation Act 2005 (WA) it is a defence to the publication of defamatory matter if the defendant proves that the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (known as contextual imputations) that are substantially true and the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.

62 My understanding is that this provision covers the situation where the plaintiff draws a particular allegation out of the material complained of but ignores some other more serious allegation, possibly because the defendant might be able to justify it. In that situation it is open to the defendant to raise and justify the more serious imputation in order to establish that the plaintiff's reputation has not actually been damaged as alleged by the plaintiff in seeking to confine his complaint to the less serious imputation selected by him.

63 Accordingly, I will say no more about s 26 of the Defamation Act, bearing in mind also that it was not a matter raised by either party at the hearing before me with respect to the present striking out application.

64 I must now return to the plaintiff's challenge to the adequacy of the statement of defence. I will begin by looking in more detail at the challenge concerning the defence to the claim referable to the first to fifth publications.

Observations re the first to fifth publications

65 Counsel for the plaintiff contended in his written submissions and at the hearing that the statement of defence was so affected by poorly pleaded matters that it ought to be struck out in its entirety. However, it will be useful to begin by looking at those parts of the defence identified in the schedule to the chamber summons that are said to be objectionable because they do not disclose a reasonable defence or, alternatively, are embarrassing. I will return to the question of whether the defence should be struck out in its entirety later.

66 By his statement of defence the defendant did not set out to deal with the first to fifth publications individually. By par 3 of the defence the defendant admitted sending the emails comprising the first to fifth publications on the respective dates pleaded. By par 4 the defendant denied that such emails were published to, or intended to be published to, any persons other than the persons to whom they were addressed, namely the Ombudsman (first publication) or the plaintiff (second to fifth publications).

67 In dealing with this plea I remind myself that by par 3 of the claim concerning the first publication it was said that the email of 24 July 2003 was transmitted and published to the Ombudsman. Further, as set out in the claim in the accompanying aggravated damage to reputation plea, the subject email was sent to an email address accessible to an indefinite amount of people in the employ of the Ombudsman.

68 In par 7 of the claim it was said that the subject email dated 15 April 2005 was published 'to persons then employed in the office of the Information Commissioner'. In the accompanying aggravated damage to reputation plea, reference was made to the email being sent to an email address accessible to an indefinite amount of people in the employ of that officer. The plaintiff's case was pleaded in the same form in respect of the third publication and fifth publication.

69 As to par 4 of the defence the plaintiff submitted that the words 'or intended to be published to' should be struck out on the grounds that the intention of the publisher in defamation matters is irrelevant and raises a false issue.

70 It emerges from earlier discussion in these reasons for decision that the intention of the defendant is irrelevant when determining the meaning of the words conveyed. Counsel for the plaintiff contended that the reference to the publisher's intention would set up a false issue and might suggest to a jury, in the event of the matter being tried before a jury, that the plaintiff had to satisfy the court that the defendant intended to convey the defamatory meaning complained of to the recipient of the email.

71 Counsel for the defendant conceded that the intention of the defendant is irrelevant when determining the meaning of the words conveyed. However, it was said that the reference to intention in par 4 of the defence relates to whether or not the defendant intended to publish the matters complained of to a third party.

72 The rule is that no civil action can be maintained for defamation unless the words complained of have been published. In other words, a defamatory statement about the complainant communicated to the complainant alone may injure his self-esteem but it cannot injure his reputation. As a general rule, when a letter is addressed to a particular person, the writer is not responsible except for a publication to that person.

73 However, if in the circumstances of the case the writer knows that the letter will be opened and read by some person other than the person to whom he addresses it, he will be liable for the publication to that person. Putting it another way, the rule is that the defendant will be liable if he has reason to know that the letter may be opened in the ordinary course of business by someone other than the addressee. In modern business conditions, such knowledge will generally be imputed to him unless the letter carries some clear indication (eg by being marked 'personal' or 'private and confidential') to show that this should not take place: Gatley on Libel and Slander (11th ed) at par 6.10.

74 There is a further rule that a person who repeats or republishes the defamatory matter published by another may be liable as if the person was the original publisher. Liability does not necessarily depend on whether the person approved, reaffirmed or endorsed the original publication. However, the original publisher may be liable for a republication if he authorised the repetition of the original publication, or intended that the repetition should take place, or published it in circumstances where the repetition was the natural and probable consequence of the original publication.

75 The distinction between publication and republication was considered at some length in Harding v Essey [2005] WASCA 30; (2005) 30 WAR 1 by Pullin J at 25. His Honour made these observations at 25:

There is a clear distinction between publication and republication. The distinction is important because every republication of a defamatory statement is a new defamation and if committed by different persons, each one is liable as if the defamatory statement had originated with him: Truth (NZ) Ltd v Holloway [1961] NZLR 22. The first publisher may in certain circumstances be liable for republication by the recipient, but even in those circumstances it is important to distinguish between publication and republication. To publish a defamatory statement is to communicate the defamatory words to a person other than the person defamed: State Bank v Currabubula. To communicate means to give or impart to another.

76 His Honour went on to observe that, in his view, once the defamatory material has reached the recipient, not acting as agent for the original publisher, any one else who reads the material thereafter by reason of an act of the recipient does so as a result of the act of republication by the recipient. There is no doubt that a person who authorises republication may be held liable for damages. So, for example, if the person who submits material to the editor of a newspaper or who makes a statement to a reporter at a press conference will be held liable for republication in the newspaper: Cock v Hughes [2001] WASC 24; Slipper v British Broadcasting Corporation (1991) 1 QB 283. It is not necessary that there be express authority to republish. The court may infer such authority from the circumstances.

77 Counsel for the defendant submitted that the reference to intention at par 4 of the defence related to whether or not the defendant intended to publish the matters complained of to a third party. It was said in the defendant's submissions (although not pleaded in the statement of defence) that the second to fifth publications were to be regarded and treated as confidential as they were addressed to the plaintiff with some bearing indications that the contents were private to the plaintiff.

78 As to the issue concerning par 4 of the defence I consider that the plea in its present form containing the words 'or intended to be published to' is embarrassing. These words have the potential to raise a false issue as to whether intention to convey the defamatory meaning complained of should be treated as an element of the plaintiff's cause of action when decided cases such as E Hulton & Co v Jones (mentioned earlier) make it clear that defamation is a tort of strict liability and does not depend upon the intention of the publisher. As to each of the first to fifth publications it will be a matter of evidence as to whether the publication in question was in fact received by a person other than the plaintiff, being, for example, the Ombudsman as to the first publication, or persons in the office of the Information Commissioner as to some of the other publications, but the intention of the defendant as the alleged author of the emails is not a necessary element of the cause of action.

79 The statement of claim is not cast in a form which suggests that the plaintiff is seeking to hold the defendant responsible for a republication of the words complained of. If the plaintiff's plea was in that form then it might arguably be material for the defendant to raise by way of defence an issue as to whether the defendant could be said to have authorised a republication in that he intended the words complained of to be spread further than the immediate recipient. However, par 4 of the defence in its present form does not appear to be directed to such an issue.

80 It emerges from my review of the authorities that in certain circumstances it might also have a bearing upon the defendant's liability as to whether he had reason to know that his letter or email might be opened or examined by some person other than the plaintiff. However, in that case, although intention might have a bearing upon his state of knowledge, authorities such as Gatley suggest that the defence plea should be in the form of what the putative publisher had reason to know or could anticipate about what would happen to his communication rather than being a plea directed to his intention.

81 However, again, par 4 of the defence in its existing form does not appear to be directed to such an issue. A degree of confusion, and thus embarrassment, is likely to arise as to whether the plea concerning intention is directed to the publication issue or simply represents an impermissible suggestion that the defendant will only be liable if he intended to convey the defamatory meaning complained of.

82 Accordingly, I am of the view that the words 'or intended to be published to' should be struck out on the grounds contended for by the plaintiff, namely, that the intention of the publisher in defamation matters is irrelevant and the par 4 plea in its present form raises a false issue and is embarrassing.

83 As to par 6 of the defence the plaintiff submits that this should be struck out on the grounds that the plea purports to set up a Polly Peck or alternative innuendo plea without plainly identifying the pleaded innuendo. The defendant in par 6 of the defence purports to set out in four sub-paragraphs alternative defamatory innuendos referable collectively to each of the first to fifth publications.

84 It is true that, in a very general sense, it might be said that a common theme running through the various imputations pleaded by the plaintiff in respect of the first to fifth imputations is that there was an interference with or damaging of the relationship of the defendant and his daughters including the encouraging of deceit. However, to my mind it is embarrassing for the defendant to endeavour to plead alternative meanings in the general or collective way proposed. The decided cases establish that the court must be vigilant to ensure that what is pleaded as a Polly Peck defence is a proper and permissible one. The alternative meaning has to be characterised as a meaning that is less injurious and not substantially different from the meaning alleged by the plaintiff, and it must be referable to the contents of the communication (in this case a particular email).

85 Moreover, it is pleaded in par 6(b) of the defence that the publications asserted that the plaintiff had taught and encouraged his daughters to deceive him as to the circumstances of the plaintiff's contact with them 'and in other matters'. The latter words (being a matter conceded by counsel for the defendant at the hearing) are far too wide and obviously cannot be characterised as an alternative meaning that is less injurious and not substantially different from the meanings alleged by the plaintiff in respect of the various publications.

86 Put shortly, then, I am of the view that it is certainly open to the plaintiff to raise a Polly Peck plea and contend for an alternative meaning that is less injurious and not substantially different from the meaning alleged by the plaintiff. However, this can only be done clearly and without embarrassment by relating the alternative meanings contended for to each of the publications individually, having regard to the contents of the publication and the imputations contended for by the plaintiff in the statement of claim.

87 For these reasons, I consider that par 6 in its present form does not disclose a reasonable defence and is embarrassing. It should be struck out.

88 The defendant in par 7 of the defence states that each of the four assertions, or alternative meanings, contended for by the defendant in par 6 in respect of the first to fifth publications were true in substance and in fact. The defendant then purports to provide particulars at pars 7.1 to 7.10 of the defence. The plea and supporting particulars ostensibly form part of the Polly Peck defence being advanced by the defendant.

89 It follows from my earlier conclusion that the alternative meanings contended for by the defendant in par 6 have to be struck out, that the plea and particulars in par 7, which are linked to the earlier, defective plea, must be struck out also as failing to disclose a reasonable ground of defence or, alternatively, as embarrassing.

90 Further, and in any event, the supposed particulars provided at pars 7.1 to 7.10 do not go to the meanings pleaded in par 6. They are presented in a narrative form reflecting various facets of the former relationship between the parties and for the most part they bear upon that relationship rather than upon conduct concerning the defendant's daughters. Moreover, such of the particulars as do bear upon conduct of the latter kind are expressed in an opaque and very general way which results in the defence plea being embarrassing. For example, it is said at par 7.6 that the plaintiff encouraged one daughter 'to have a negative attitude and feelings towards the defendant'.

91 Put shortly, none of the purported particulars individually justify any of the alternative imputations contended for by the defendant at pars 6(a) to 6(d) of the defence and nor can they be said to justify such imputations collectively.

92 The defence at par 8 refers to an alleged attempt by the defendant to persuade the plaintiff not to continue her obsessive behaviour but it is not clear what this plea is directed to or whether in some way it is thought to support the proposed Polly Peck defence.

93 I am of the view that both par 7 and par 8 of the defence must be struck out upon the grounds contended for by the plaintiff.

94 In my view, the defence plea at par 9 concerning the defendant's attempts to communicate with the plaintiff about 'the matter' is embarrassing and must be struck out. It is not sufficiently specific as to what is the subject matter of the communication or as to when and where it took place.

95 To my mind, par 10 of the defence, which contains an assertion that the plaintiff's purpose in sending the emails was not malicious, and it was not his intention to cause damage to the plaintiff, must be struck out for the reasons provided in earlier discussion concerning par 4 of the defence; that is, I am of the view that a reference to the defendant's intention is irrelevant and embarrassing.

96 Paragraph 11 of the defence purports to be in response to the imputation pleaded at par 4.4 of the claim, namely, that the first publication included an imputation to the effect that the plaintiff was of a character that would deceptively make false allegations about the defendant in his capacity as a parliamentarian and personally.

97 In par 11 of the defence the defendant purports to admit that in the first publication he referred to 'unwarranted and false allegations made against (him) by (the plaintiff)' and says further 'that was true'. Bearing in mind the defendant's earlier denial in par 5 that the imputations contended for by the plaintiff bore the defamatory meanings pleaded, it is not entirely clear from par 11 of the defence whether the defendant is simply admitting that the first publication contained a passage about unwarranted and false allegations or whether the plea at par 11 of the defence marks an admission that this particular imputation contended for by the plaintiff was true, but the defendant will seek to justify the assertion as true in substance and in fact.

98 I consider that the plea in its present form is embarrassing and should be struck out.

99 Having dealt with various matters concerning the first to fifth publications, including his attempt to rely upon the Polly Peck line of defence, the defendant at par 12 of the defence goes on to say that the defendant 'otherwise denies each and every allegation in paragraphs 1 to 22 inclusive and denies that any of the said publications caused the plaintiff any damage or distress as alleged'.

100 I am of the view that a plea in this form is embarrassing and must be struck out because it is not make clear exactly what is being denied, especially in circumstances where, pursuant to my earlier conclusion, the proposed Polly Peck defence was imperfectly and impermissibly pleaded.

101 The defendant admitted at par 14 of the defence that on or about 13 January 2009 he published to Robert Taylor, a journalist at The West Australian newspaper, a letter containing words of and concerning the plaintiff and certain events that were alleged to have taken place at Christmas.

102 In par 15 of the defence the defendant denied that the media publication conveyed any defamatory meaning. It was then said in par 16 of the defence that if the media publication conveyed any defamatory imputation of the plaintiff, it was that the plaintiff had made false allegations against the defendant, which was true in substance and in fact.

103 The defendant's plea at par 16 of the defence was clearly a Polly Peck plea with particulars then being set out at pars 16.1 to 16.4 which purported to be particulars directed to the truth of the alternative meaning contended for by the defendant, namely, that the plaintiff had made false allegations against the defendant. These particulars related to the authorship of the anonymous letters comprising the sixth, seventh and eighth publications, and the plaintiff's allegedly unsubstantiated complaint to the police that the defendant was the author of the letters.

104 The plaintiff submitted that the plea at par 16 of the defence should be struck out because the purported alternative innuendo did not arise from the media publication.

105 I remind myself that the defence plea at par 16 of the defence was apparently in response to the plaintiff's plea at par 36 of the claim that the media publication meant that the plaintiff had made false allegations against the defendant (par 36.1) and was of a character that will deceptively make false allegations about the defendant in his capacity as a parliamentarian and personally (par 36.2). At a first glance, it seems that the defendant is minded to admit the imputation contended for by the plaintiff at par 36.1 but deny the imputation contended for at par 36.2 of the claim. However, the form of the defence is that the meanings contended for by the plaintiff are being denied (or said to be not defamatory) and as a Polly Peck plea the defendant is contending for an alternative meaning, albeit one that corresponds to the imputation pleaded at par 36.1 of the claim.

106 This is not entirely satisfactory. However, I am prepared to accept, on balance, that it is open to the defendant pursuant to the Polly Peck rule to conflate two imputations contended for by the plaintiff into a single imputation which can then be regarded as the pleading of an alternative meaning.

107 A question then arises as to whether the purported or alternative innuendo contended for by the defendant does or does not arise from the media publication, being the matter raised by way of objection to the defence plea by counsel for the plaintiff.

108 As to that, I consider that, arguably, such a meaning does arise because the media publication contains a passage referring to 'a raft of false assertions against me on Christmas Eve' and further reference to the humiliation that is likely to follow 'when false assertions are made'. There is also reference to the need for protection against 'a false allegation'. The tenor of the media publication is that the plaintiff is the person responsible for false assertions and false allegations.

109 In the end, I am of the view that par 16 of the defence is a permissible pleading and should not be struck out. The particulars presented in support of the plea of justification are specific on this occasion and are directed to the authorship and contents of the sixth, seventh and eighth publications.

110 At par 17 of the defence the defendant denied the allegations in par 38 of the claim; that is, the plaintiff's allegation that the defendant made the media publication in circumstances where the defendant knew and intended that the media publication, or the gist of it, would be republished. This denial embraces the assertion at par 38.2 of the claim that the defendant authorised the media publication to be republished and a denial that it was a natural and probable consequence of publication to the journalist that it would be republished. It is pleaded further in par 17 of the defence that the defendant 'did not know or intend' that any parts of the subject letter which were defamatory of the plaintiff would be published by The West Australian.

111 I have observed in earlier discussion that intention is not an element of the cause of action. However, as to republication of an allegedly defamatory letter, the rule is that the original publisher will only be liable as a publisher of the republished statement where he authorised or intended it. In this context the state of knowledge or intention of the original publisher (in this case the defendant) can be relevant to liability.

112 Accordingly, contrary to the submission made by counsel for the plaintiff, I do not consider that the plea at par 17 of the defence raises an irrelevant issue and I am not persuaded that par 17 of the defence should be struck out.

113 Paragraph 19 of the defence concerning the defendant's attitude to the anonymous letter referred to in the newspaper article appears to be marginally relevant. I am not persuaded that it should be struck out.

114 The defendant in par 24 of the defence denies that the tenth publication conveyed defamatory meanings of and concerning the plaintiff. In par 25 of the defence the defendant purports to raise a Polly Peck plea by contending for alternative means; that is, imputations to the effect that the plaintiff had caused her solicitors to deliver to the defendant's home on Christmas Eve a letter making a false complaint against the defendant at a time calculated to cause him and his family maximum distress (par 25(a)), had turned the defendant's daughter against him (par 25(b)) and exposed the defendant's daughter to David Everett, said to be a notorious criminal (par 25(c)). These alternative meanings were said to be true in substance and in fact and particulars directed to each of the alternative imputations contended for by the defendant are then provided.

115 Counsel for the plaintiff submitted that this represented a defective attempt to set out a Polly Peck plea. It was said further that the pleading in par 25(c) (that is, that the plaintiff had exposed the defendant's daughter to David Everett, a notorious criminal) simply did not arise from the tenth publication.

116 In my view, the alternative meaning contended for by the defendant at par 25(c) does arise from the contents of the tenth publication. At one stage, in the course of the interview, the defendant is quoted as saying that he was sure the interviewer 'wouldn't like your children behind your back being taken out to socialise with the likes of Everett'. That passage, when viewed in the context of other remarks, provides a basis for the alternative imputation in question.

117 However, I am of the view that the particulars provided in support of the alternative imputation pleaded at par 24(b) of the defence are inadequate. The defendant seeks to justify the imputation that the plaintiff turned the defendant's daughter against him by simply repeating pars 7.1 to 7.10 of the defence. However, for the reasons I have given previously, those particulars, being presented in a narrative form, and going principally to the former relationship, are not sufficient. Accordingly, I consider that par 25 of the defence must be struck out upon the basis that there has been a defective attempt to set up a Polly Peck plea.

118 The defendant in par 27 of the defence admitted publishing the further publications as defined in par 48 of the claim but went on to say at par 27(b) of the defence that the further publications were a direct and reasonable response to an attack by the plaintiff and her solicitors on the defendant's reputation, and were therefore protected by qualified privilege.

119 These publications are not relied upon in the claim as conveying a defamatory imputation, nor is the basis for a separate cause of action. Accordingly, the reference to protection by qualified privilege in this context raises a false issue and is irrelevant and embarrassing. I therefore consider that par 27(b) of the defence must be struck out.

120 The defendant in par 31 of the defence pleaded, in effect, that if the media publication and tenth publication complained of conveyed the imputations contended for in the statement of claim, the defendant will contend, in mitigation of damages, that the plaintiff has caused herself to be lowered in the estimation of right-thinking members of society, by associating with David Everett, a notorious criminal, whose criminal convictions are 'well known' to the recipients of the media publication and tenth publication.

121 Counsel for the plaintiff submitted that par 31 is embarrassing in raising a plea as to a state of mind (implicit in the phrase 'well-known') without particulars being provided contrary to the requirements of the rules of court.

122 It was said in the defendant's written submissions that the ninth and tenth publications were published by the mass media to the community at large. The identity of the persons to whom a publication is made or alleged to have been made is usually a relevant necessary matter to be given by way of particulars, except in the case of mass media defendants where the precise identity of those persons is usually irrelevant to any issue in the case: Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 at 192.

123 I do not consider that the plea in par 31 is embarrassing with the result that it need not be struck out.

124 It emerges from this review of the statement of defence and the objections raised by the plaintiff that, in my view, various portions of the statement of defence are to be struck out. This will require a significant recasting of the statement of defence, notwithstanding that certain other portions of the statement of defence have survived the plaintiff's critique. Accordingly, I am of the view that an order should be made for the statement of defence to be struck out in its entirety but upon the basis that the defendant will be granted leave to replead within a time to be fixed by the court. I will hear from the parties as to what is the appropriate time limit and as to any other orders and directions that may be required.

Cock v Hughes

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (151 paragraphs)

WOOKEY -v- QUIGLEY [2009] WASC 284 (23 September 2009)

Parties

Cases Cited (9)