Supreme Court of WA|2001-12-19|Before: Franklyn J, Steytler J, Hasluck J

Cohen v McEvoy [2001] WASC 349 (19 December 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : COHEN -v- McEVOY [2001] WASC 349

Defamation - Slander - Words complained of spoken by councillor at informal council meeting - Whether words spoken - Meaning of words - Whether words spoken on a privileged occasion - Whether any need to prove special damage

Rules of the Supreme Court 1971 (WA), O 20 r 14(3)

Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354

Dale v Ingersole, unreported; SCt of WA (Franklyn J); Library No 8931; 28 June 1991

Howe & McColough v Lees [1910] HCA 67; (1910) 11 CLR 361

Jones v Travaglione, unreported; SCt of WA (Steytler J); Library No 970632; 20 November 1997

McKinnon v Dauphin [1996] 3 WWR 127

Merkoff v Pawluk [1931] 1 WWR 669

Ratcliffe v Evans [1892] 2 QB 524

Savidant v Day (1933) 5 MPR 554

Slipper v BBC [1991] 1 QB 283

Stuart v Bell (1891) 2 QB 341

Watt v Longsdon [1930] 1 KB 130

Willman v Dooner 770 SW 2d 275

Winstanley v Bampton [1943] KB 319

1 HASLUCK J: The plaintiff, Bruce Cohen, advances a claim in defamation arising out of certain remarks allegedly made by the defendant, Judy McEvoy, on 6 July 1999 at premises vested in the City of Perth known as Council House. At all material times, the defendant was an elected councillor of the City of Perth. She has been deputy lord mayor since May this year.

2 The plaintiff represented himself at the trial of the action. In the course of his evidence, it became apparent that he is a businessman who lives and works in the central business district of the City of Perth. By an agreement in writing, he leased residential premises, being unit 10, 307 Murray Street, Perth for a term of 12 months commencing on 11 July 1997. The owner of the premises was a company known as Barfond Pty Ltd. He subsequently renewed the lease for a further term of 12 months, expiring on 10 July 1999.

3 The plaintiff was in possession of the premises at the beginning of the calendar year 1999 and was accustomed to pay his rent on a regular basis. He was also involved in various business activities, including the establishing and running of a centre for artists and organising wine tours. In regard to the latter activity, he utilised the services of a coach operator named Peter Gairdner, who was the proprietor of a business known as Red Back Tours and Charters.

4 It seems that the plaintiff came to be troubled by some activities taking place in the vicinity of his residential premises. The leasing agreement provided for quiet enjoyment of the subject premises. However, as a consequence of renovations and the activities of other lessees in the building, the plaintiff felt obliged to complain to the managing agent, Jones Lang Wootton, that the covenant concerning quiet enjoyment was being infringed. This led to an exchange of correspondence between the solicitors for the interested parties.

5 It seems that, by the end of March 1999, the parties to the dispute had agreed to resolve their differences upon the basis that the owner would grant to the plaintiff an extension of the lease from 11 July 1999 to 10 July 2000 with an option for a further extension. It was agreed that a Deed of Release evidencing the settlement of the dispute could be pleaded as a bar to any proceedings commenced by the plaintiff. A Deed of Release dated 11 February 2000 carrying the settlement arrangements into effect was eventually executed by the plaintiff and the owner of the premises.

6 These difficulties did not lead to any interruption in the plaintiff's occupancy of the subject premises. I am able to find as a fact that the plaintiff occupied his premises continuously throughout 1999. It was not alleged against him that he was in breach of any of his obligations under the agreement for lease in regard to the payment of rent, or that he was in danger of being evicted for not paying rent. It is quite clear from the evidence that he was not evicted from his premises.

7 Another matter of concern to the plaintiff prior to 6 June 1999 was the noise associated with the City of Perth's rubbish collection service. The plaintiff eventually felt compelled to commence legal proceedings against the City of Perth with a view to restraining the municipality from collecting rubbish in a manner that arguably infringed the statutory requirements concerning noise abatement. I understand that in or about May 1999, the plaintiff brought on for hearing before a Judge in chambers, an application for an interim injunction. He did not obtain the injunction, but the litigation remained on foot and was treated seriously by council officers. I will return to this aspect of the matter later. I note in passing at this stage, that a mediation of the Cohen claim for an injunction was arranged for 7 July 1999.

8 In the course of cross-examination in the present proceedings, the plaintiff agreed that prior to 6 July 1999 he probably spoke to a friend of his, Brian Coleman, about the problems he was having at his Murray Street residence. When asked by counsel whether he was thinking of moving out of the premises because of the problems he was having, not only with the City of Perth, but also with one of the other lessees in the building, the plaintiff responded in the negative. Mr Cohen doubted whether he would have said such a thing to Mr Coleman because he, the plaintiff, had not made any plans or sought alternative accommodation. It was common ground at the hearing before me that Brian Coleman is now deceased and he therefore did not give evidence at the hearing.

9 On 6 July 1999, there was a gathering of councillors and senior officers of the City of Perth in the Council Chamber at Council House, being the headquarters of the City of Perth. Those present were attending what was described by the Chief Executive Officer of the City of Perth, Mr Garry Hunt, as a "briefing session". It will be useful to look briefly at the nature of the briefing session before proceeding further. For the sake of an orderly narrative, I will draw principally upon the evidence of Mr Hunt.

10 Mr Hunt has been the Chief Executive Officer of the City of Perth since June 1994 and, prior to that, he had served as City Manager and Town Clerk of the City of Melville. He said that, prior to a restructuring that took place in the mid-1990s, the City of Perth had a lord mayor and 27 councillors. In the conduct of its business, it made use of various committees, such as the Town Planning Committee which made recommendations to the elected council as the principal decision-making body under the provisions of the local government legislation. This structure was thought to be somewhat undemocratic and unwieldy in that councillors who were not represented on certain committees were not fully informed when matters came before the council. This meant that debate was often duplicated. When the size of the council was reduced, concerns of this kind led to the introduction of the briefing session which, by mid-1999, had become, according to Mr Hunt, "an integral part of the way the council does business". Put shortly, the briefing session can be regarded as "a mechanism to involve and engage the elected body in issues before they are required to make a decision".

11 Mr Hunt then proceeded to describe in more detail the way in which the system worked. He said that, under the provisions of the Local Government Act 1995 (WA) council meetings and committee meetings are part of a formal decision-making process. As at 6 July 1999, the council consisted of a lord mayor and eight elected councillors. Formal council meetings were held on the second and fourth Tuesdays of each month.

12 He went on to say that the briefing sessions were held on the first and third Tuesdays of each month. These briefing sessions were not decision-making forums in that no votes were taken. The briefing sessions were essentially directed to engaging, informing and involving the elected councillors in matters of local government that had to be dealt with by the City of Perth. In Mr Hunt's view, information is critical to good decision-making and, thus, the principal purpose of the briefing sessions was to be informative.

13 He said that, as at 6 July 1999, the briefing sessions were usually attended by the elected councillors and senior officers of the council. Councillors were not obliged to attend, but usually did so. The briefing session was held in the Council Chamber under the chairmanship of the lord mayor, Dr Nattrass. The lord mayor's chairmanship of the meeting did not follow from any poll or election, but was simply a matter of convention as he was the elected leader of the council. There were no minutes of the briefing session. The gathering was not open to the public, although, on occasions, members of the public with a special interest in some item of forthcoming business might be invited to attend and address a briefing session.

14 Papers came before the briefing session in three forms. Blue papers dealt with general issues that were in an exploratory stage. Yellow papers were directed to matters that were proceeding to council, usually at the next meeting. Pink papers were those concerned with confidential issues. Discussion would be directed to these various sets of papers and under "general business" an opportunity was allowed to elected members of the council to raise issues that they thought to be of consequence or in respect of which they wanted a report or further information. Reports would be provided by the Chief Executive Officer or by one of his colleagues who was fully briefed about the matter in question.

15 It was common ground at the hearing before me that on 6 July 1999, under "general business", a question arose as to the status of the Cohen litigation. I will come back to the details of this discussion later. However, for present purposes, it is sufficient to note that the plaintiff adduced evidence from two elected councillors, namely, Councillor Tudori and Councillor Davidson, in support of his claim. It was in the course of the discussion under general business, according to these two councillors, that the words complained of were spoken by Councillor McEvoy.

16 According to Councillor Tudori, he heard Councillor McEvoy say of the plaintiff, Mr Cohen: "We won't have to worry about him any more because he has been thrown out of his unit for not paying rent."

17 Councillor Tudori went on to say that he was disturbed by this utterance. He had been providing a degree of support to the plaintiff during the course of the Cohen litigation and he was therefore dismayed to be told that the plaintiff could be leaving the area where the contentious rubbish collection activity was taking place.

18 Councillor Tudori said further that, on the day after the briefing session in question, he spoke to the plaintiff by telephone with a view to ascertaining the facts of the matter. The plaintiff said in his evidence that he made it clear to Councillor Tudori that there was no truth in the assertion that he had been thrown out of his unit for not paying rent. Further, in order to satisfy Councillor Tudori on that point, the plaintiff then attended at Council House with documentation sufficient to establish that he would be remaining on the premises.

19 It was against this background that the plaintiff instructed his solicitors, Birman & Ride, to write to the defendant about the matter. The relevant letter, dated 30 July 1999, is directed to Ms McEvoy in her capacity as licensee of the City Hotel, being premises situated on the corner of King and Murray Streets, not far away from the premises occupied by the plaintiff.

20 The Birman & Ride letter said that the words complained of were spoken in the presence of at least five other Perth City councillors and senior management employees of the Perth City Council. The words were published in the context of a discussion about the status of litigation between the council and Mr Cohen. The reaction of the meeting to the words was said to be one of general mirth. The solicitors said that the words were clearly slanderous in that Mr Cohen had not been evicted from his home for not paying rent and the words had the effect of bringing Mr Cohen into ridicule and contempt. The solicitors sought an apology and the provision of an offer of satisfactory compensation.

21 By letter dated 2 August 1999, the defendant responded the Birman & Ride. The reply is in these terms:

"I refer to your letter of 30 July 1999.

I confirm that there was reference made to your client at a confidential meeting between relevant Councillors and managers of the City of Perth in the context of a discussion about the status of legal proceedings commenced by your client against the City of Perth.

I did not say the words you attribute to me, or words to that effect. I did not defame your client at that session.

In any event, the circumstances in which discussions concerning your client took place attract qualified privilege.

Finally, a cause of action for slander does not arise in the absence of proof of special damage, and your client's allegation does not fall within the exceptions.

If your client instructs you to take this matter further, it will be defended."

22 In this letter, the defendant concedes that she was present at the briefing session and that in the context of a discussion about the Cohen litigation there was a reference to the plaintiff. I digress briefly to observe that at the trial of the present action the defendant gave her account of the incident. According to the defendant, the words she used were as follows: "We may not have to worry because I think he's moving out." It emerges, then, that there is an issue between the parties as to exactly what was said, and a further issue as to whether the words used were defamatory of the plaintiff.

23 At about the time this exchange of correspondence was taking place, the plaintiff was contacted by the coach operator, Peter Gairdner. The coach operator had previously allowed credit to the plaintiff upon the basis that the plaintiff could pay for a tour within 30 days from the end of the month. He now required cash on completion of each tour as a result of a rumour he had heard concerning the plaintiff's financial standing. This, in turn, required the plaintiff to insist upon early payment by his customers. I will return to the details of this matter in due course. For the moment, I simply note that these events prompted the plaintiff to commence the present legal proceedings against the defendant.

24 I note also, in order to complete the narrative, that shortly after the contentious meeting at the council premises the rubbish removal rounds were changed. Later, on 17 September 2000, that is to say, more than 12 months after the contentious meeting at which the words complained of were allegedly spoken, the plaintiff obtained a ruling from the Supreme Court in his favour concerning the rubbish collection issue. He was granted an injunction and awarded damages, and the costs of the legal proceedings.

25 The statement of claim in the present proceedings asserts that the plaintiff is and was at all material times a businessman living and working in the central business district of the City of Perth and engaged in business activities, including organising tours and establishing and running a centre for artists. It is said that such activities required the plaintiff to have dealings and negotiations with the City of Perth. The statement of claim recognises that the defendant is a Perth City councillor and refers to the plaintiff being involved in litigation with the City of Perth in regard to the creation of a nuisance near his central city residence.

26 The plaintiff pleads in par 4 of his claim that on or about 6 July 1999 the defendant falsely and maliciously spoke and published to certain Perth City councillors and employees of the City of Perth of and concerning the plaintiff the following words:

"We won't have to worry about him [the plaintiff] any more because he has been thrown out of his unit for not paying the rent."

27 It is said in par 5 that the words were calculated by the defendant to disparage the plaintiff in his business in that in their natural and ordinary meaning they meant and were understood to mean that "the plaintiff was not able to pay his debts as they fell due". I will refer to this as the pleaded imputation.

28 The plaintiff goes on to say that in consequence of publication of the words complained of, the plaintiff was greatly injured in his credit and reputation and in his business. In response to a request for further and better particulars as to how the alleged publication is said to have injured the plaintiff's credit, reputation and business, the plaintiff provided the following particulars:

"3. a. My two Coach subcontractors, Red Back Tours &

Charters & Skyline Tours immediately upon hearing the 'Words' placed me on 'payment upon completion' with no credit allowance. This is still the case today.

b. City of Perth Councillor, Burt Tudori's support for me in my Injunction application immediately diminished in accordance with his deposed evidence, a copy of which was handed to Felicity Davis on 10/4/2000 at the Supreme Court."

29 By her statement of defence, the defendant admitted that the plaintiff was living in the central business district of the City of Perth, but otherwise denied that he was engaged in business activities as alleged. The defendant admits that she was present during a discussion about the Cohen litigation at a briefing session held at the offices of the City of Perth, but otherwise denies that the words complained of were spoken. The defendant says, in the alternative, that if the words were spoken, they did not bear, or were not capable of bearing, the meaning reflected in the pleaded imputation, or any meaning defamatory of the plaintiff.

30 Paragraph 7 of the statement of defence contains a plea of qualified privilege in these terms:

"7. Further or in the alternative if, which is denied, the Defendant spoke the words complained of and the words were defamatory, those words were spoken by the Defendant on an occasion of qualified privilege.

Particulars

A. The Plaintiff had commenced, and the City of Perth was defending the Litigation.

B. The issue of whether the Plaintiff would be moving from his residence was relevant to the Litigation as the Plaintiff sought injunctive relief against the City of Perth.

C. Further or alternatively, whether the Plaintiff was unable to pay his rent was relevant to the Litigation generally, as this could have prejudiced his ability to pay any costs orders made in favour of the City of Perth.

D. In the circumstances, the Defendant and members and employees of the City of Perth present at the briefing session had a common or corresponding interest in the subject matter of the words complained of and/or the Defendant had a duty to speak the words complained of."

31 Before turning to the matters in issue raised by the pleadings, it will be useful to look briefly at some of the relevant principles of law bearing upon the issues raised by the pleadings.

32 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 447.

33 It remains a rule of practice that the plaintiff must plead the imputation said to arise 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 plaintiff must set out the meaning which he or she alleges ordinary readers would infer from the words complained of.

34 In deciding whether or not the words are capable of conveying an allegedly defamatory meaning, the Court will reject those meanings which can only emerge as the product of some strained, or forced, or utterly unreasonable interpretation. 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 unusually suspicious, or naive, 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. What the ordinary man, not avid for scandal, would read in the words must be a matter of impression. The impression will inevitably include a certain amount of loose thinking: Mirror Newspapers Ltd v World Hosts Pty Ltd [1979] HCA 3; (1979) 53 ALJR 243 at 246.

35 Whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law to be decided by the Court. The test is whether, under the circumstances in which the words were published, people to whom the publication was made would be likely to understand them in a defamatory sense: Jones v Skelton (1963) 1 WLR 1362.

36 The distinction between libel and slander is relevant where material has been published in South Australia, Victoria or Western Australia, but is no longer relevant in the other States. The Laws of Australia, vol 6 par 11.

37 In the case of a libel, that is to say, the publication of words in a written or permanent form, damages arising from the publication is presumed. In the case of a slander, however, the plaintiff has to prove either that the words are actionable per se at common law, or that he or she has suffered special damage.

38 Words will be actionable per se where the words complained of impute the commission of a crime, where there is an imputation of contagious disease, where the words disparage a person in his office, trade, calling business or profession or where there is an imputation of adultery or unchastity. The special damage which must be proved in all other cases of slander is some form of pecuniary loss or loss capable of assessment in money terms. It clearly includes the loss or refusal of employment if sufficiently connected with the words spoken. Special damage may also be established by proof of general loss of business, at least if that is the likely consequence of the slander involved: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 558.

39 Even if words are held to be defamatory, the defendant may, nonetheless, escape liability if he or she can rely upon defences such as justification, fair comment or qualified privilege. As to the defence of privilege, the law allows that, on certain occasions, a person is protected in stating what he believes to be the truth about another provided he makes a statement honestly and without any indirect or improper motive. These occasions are called occasions of qualified privilege. A privileged occasion is an occasion where the person who makes the communication has an interest, or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is made has a corresponding interest or duty to receive it: Adam v Ward [1917] AC 309 at 334.

40 In Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360 Owen J reviewed the principles bearing upon the issue of privilege at some length. In that case, the defendant union published in its journal some comments about the plaintiff's involvement in a redevelopment proposal. When the plaintiff complained that the words in question were defamatory, the defendant raised a plea of privilege, but was held to be not entitled to the protection afforded by such a defence because the comments in the article went beyond the requirements of the occasion, notwithstanding that the plaintiff failed to convince the jury that the defendant acted with malice.

41 Justice Owen affirmed the rule that a privilege plea is available in respect of an occasion where the person who makes the communication has an interest or a duty, legal, social or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. This reciprocity is essential.

42 He went on to say that a social or moral duty is to be tested by asking whether the communication was made on an occasion on which a person who desired to do his duty to society would reasonably believe that he ought to make it. The publisher must establish the duty or interest existed in fact. It is not sufficient that the publisher acted in the belief that the duty or interest existed. Whether or not the occasion is privileged is a question of law for the Judge to decide.

43 He said further that no privilege arises if the exigency of the situation does not warrant the protection of the common interest by the means employed. Whether the duty or interest contended for by a publisher exists must be determined upon a consideration of the surrounding circumstances and of what is reasonable in those circumstances. Privilege is not destroyed by inclusion of information outside the ambit of the privilege, but the defamatory material will only be protected by the privilege if it is relevant to the matters at the heart of the duty or interest. A response must be commensurate with the occasion.

44 I pause to observe that, in reviewing the authorities bearing upon this latter aspect of a privilege plea, his Honour referred to Guise v Kouvelis [1947] HCA 13; (1947) 74 CLR 102. In that case, a committee man interfered in a dispute between members of a club who were playing cards in a room containing some 50 other persons, some of whom were non-members. He charged the plaintiff with being a crook in a loud voice, audible to most of those present. It was held that the interests of the defendant and the members did not justify a public accusation because the defendant could simply have told the plaintiff, without making any defamatory allegation, that he would report him to the committee (such report being certainly a privileged occasion). Latham CJ said at 110 that whether there was duty or interest to inform members of the club that the plaintiff was dishonest, and whether there was a common interest between the plaintiff and the members of the club in the character of the plaintiff, was a question which had to be determined upon a consideration of the surrounding circumstances and what is reasonable in those circumstances.

45 Having regard to the circumstances of the present case, it will be useful to look now at one of the leading authorities in this area of the law, namely, the decision of the House of Lords in Horrocks v Lowe [1975] AC 135.

46 In that case, the defendant was an alderman who allegedly uttered words defamatory of the plaintiff at an open council meeting concerning the plaintiff's involvement in a controversial sale of land. The House of Lords accepted that the defendant had spoken on a privileged occasion and had not misused the occasion for some purpose other than that for which the privilege was accorded to him. His positive belief in the truth of what he said entitled him to succeed in his defence of qualified privilege. Lord Diplock J noted at page 150 that a belief in the truth of what is published on a privileged occasion is presumed unless the contrary is proved. If the plaintiff seeks to extinguish or negative the plea of privilege by establishing that the defendant was actuated by malice or was seeking to advance an improper purpose, the burden of proof lies upon the plaintiff in that regard. In other words, the defendant is entitled to be protected by the privilege unless some other dominant and improper motive on his part is alleged and proved.

47 In the course of his judgment, Lord Diplock observed that the public interest in a man being able to vindicate his reputation against unfair assertions has to be accommodated to the competing public interest in permitting men to communicate frankly and freely with one another about matters in respect of which the law recognises that they have a duty to perform or an interest to protect in doing so. What is published in good faith on matters of these kinds is published on a privileged occasion.

"My Lords, what is said by members of a local council at meetings of the council or of any of its committees is spoken on a privileged occasion. The reason for the privilege is that those who represent the local government electors should be able to speak freely and frankly, boldly and bluntly, on any matter which they believe affects the interests or welfare of the inhabitants. They may be swayed by strong political prejudice, they may be obstinate and pig-headed, stupid and obtuse; but they were chosen by the electors to speak their minds on matters of local concern and so long as they do so honestly they run no risk of liability for defamation of those who are the subjects of their criticism."

49 It follows from these substantive rules of law that there is a specific rule of pleading that whenever it is intended to allege in answer to a plea of qualified privilege that the defendant was actuated by express malice, the plaintiff must serve a reply giving particulars of the facts and matters from which the malice is to be inferred. It is not sufficient merely to plead that the defendant acted maliciously. Generalised or formulaic statements will not be permitted. The plaintiff must allege specific facts: Gatley on Libel and Slander (9th ed) par 28.5

50 This rule of pleading is reflected in O 20 r 14(3) of the Rules of the Supreme Court 1971 (WA) which reads as follows:

"(3) Where in an action for libel or slander the plaintiff alleges that the defendant maliciously published the words or matters complained of, he need not in his statement of claim give particulars of the facts on which he relies in support of the allegation of malice; but where the defendant pleads that any of those words or matters are fair comment on a matter of public interest or were published upon a privileged occasion and the plaintiff intends to allege that the defendant was actuated by express malice, he must serve a reply giving particulars of the facts and matters from which the malice is to be inferred."

51 I digress briefly to observe that, in the present case, the plaintiff did not file and serve a reply in which it was alleged that the plea of privilege was not available to the defendant because she was actuated by malice. On the first day of the trial, after the plaintiff had presented his witnesses and closed his case, some discussion took place about this aspect of the matter. The defendant had given her evidence-in-chief and was in the course of being cross-examined by the plaintiff. It became apparent that the plaintiff, who was conducting his own case, intended to put various questions to the defendant with a view to drawing out a degree of malice on her part sufficient to extinguish the plea of privilege reflected in her statement of defence, notwithstanding that such an issue had not been raised by the plaintiff in any reply filed on his behalf in the manner required by the Rules of Court. Counsel for the defendant objected vigorously to cross-examination directed to such an issue upon the basis that the matter had not been pleaded and could not be regarded as an issue legitimately before the Court.

52 I ruled that the plaintiff was not at liberty to pursue the question of malice. I was of the view that it was not sufficient, having regard to the passage in Gatley (supra) mentioned earlier, for the plaintiff to have alleged in formulaic terms that the words complained of were spoken "falsely and maliciously". If the issue of malice was to be pursued, then the Rules of Court require that it be raised expressly upon the pleadings. I will proceed in accordance with that ruling in these reasons for judgment. As I have already indicated, the decided cases establish that good faith on the part of the defendant will be presumed unless the plaintiff pleads and proves upon the balance of probabilities that the defendant misused the occasion of privilege (if such an occasion is found to have existed) for an improper purpose: Ronald v Harper [1910] HCA 43; (1910) 11 CLR 63.

53 Let me now return to the circumstances of the present case.

54 The first issue for determination is whether the words complained of were spoken. It will be recalled that, on the plaintiff's case, the defendant allegedly said of the plaintiff at the briefing session under general business: "We won't have to worry about him any more because he has been thrown out of his unit for not paying the rent." The plaintiff called two witnesses in support of his contention that the words complained of were spoken. I have already described the evidence given by Councillor Tudori to the effect that the words were spoken in his presence by the defendant in the course of the briefing session.

55 Before reviewing the evidence bearing upon this point, it will be useful to look briefly at the layout of the council chamber. A sketch was adduced in evidence showing the situation of those present in the chamber and the seating configuration of those at the wedge-shaped council table. I have little difficulty in finding that the lord mayor, Dr Nattrass, was positioned at one end of the table and was flanked by the chief executive officer, Mr Hunt. On the side of the table to the left of the lord mayor there were a number of councillors and council officers. Councillor Tudori occupied the first position on that side of the table and Councillor Davidson the second position.

56 The defendant, Councillor McEvoy, was in the first position on the other side of the table, with Councillor Semmens (now deceased) being seated next to her. The various council officers were seated at the lower end of the table, with Mr Forster, the director of business units, being seated at the far end of the table. It follows that the lord mayor was closer to the defendant than the other councillors, save for Councillor Semmens. Councillor Tudori was seated directly opposite the defendant, but it is fair to say that Mr Hunt and Councillor Davidson were in close proximity to the defendant.

57 According to the chief executive officer, Mr Hunt, Councillor Tudori raised a question about the status of the Cohen litigation under general business. This led to questions about the status of the action, expectations as to the outcome, and as to the costs involved. Mr Hunt acknowledged that Mr Forster was a staff member with a particular responsibility for this matter. To the best of Mr Hunt's recollection, at the end of the discussion, Councillor McEvoy commented: "We mightn't need to worry much because Mr Cohen is apparently leaving the premises." He could not recall any further discussion after that remark, nor could he recall anyone smiling or laughing about what was said. He could not recall Councillor McEvoy saying the words attributed to her by Councillor Tudori, namely: "We won't have to worry about him any more because he has been thrown out of his unit for not paying rent." He could not recall Councillor McEvoy making any reference to non-payment of rent by the plaintiff.

58 Mr Forster acknowledged in his evidence that he attended the briefing session and was seated at the far end of the table. From time to time there had been requests for information about the progress of the Cohen litigation and he had therefore prepared some notes to provide an update to the elected members. When the matter was raised for discussion, he was conscious that a mediation conference concerning the Cohen litigation had been fixed for the following day and he was therefore seeking some guidance from those present as to whether an offer should be made at the conference. Mr Forster outlined a suggested offer that could be made to the plaintiff to be put on the table the following day at the mediation conference. He was unable to recall anything being said about the plaintiff at the briefing session.

59 Dr Nattrass gave evidence concerning the nature and role of the briefing session which was generally consistent with the evidence given by Mr Hunt. Dr Nattrass recalled that at the meeting on 6 July 1999, Mr Forster updated the meeting as to the progress of the Cohen litigation. He recalled Councillor McEvoy making reference to the fact that she had heard that Mr Cohen was leaving the subject premises, but he could not recall any reason being given. He became aware later that an allegation was being made by the plaintiff that he had been defamed at the meeting.

60 I have already provided a brief account of the evidence given by Councillor Tudori in support of the plaintiff's claim. Councillor Tudori has been a councillor for six and a half years. He agreed that he was the one who raised the Cohen litigation under general business. According to him, those present discussed the litigation for a while and then Councillor McEvoy uttered the words complained of which led to a few smiles and that was the end of the discussion. He said in evidence before me: "That particular bit of business then finished and we went on to something else." He felt let down because he had been supporting the plaintiff while the court case was going ahead. He agreed under cross-examination that he was "a bit hard of hearing". In his view, what was discussed at the briefing session was not confidential. He was adamant that the words complained of were spoken.

61 Councillor Davidson said that during general business someone raised the issue of the council versus the plaintiff in regard to the rubbish bin issue and then Councillor McEvoy said words to this effect: "We don't have to worry about him any more because he has been thrown out of his unit as he can't pay the rent." This was followed by a silence and then the meeting proceeded. The silence that ensued was probably explained by a general mood of surprise at what had been said. She could not recall any reference to a mediation conference to take place the following day, but she did recall a figure of $80,000 being mentioned in respect of defence costs. She was pressed in cross-examination, but stood by her recollection of what was said.

62 I will not traverse in detail the entire range of testimony directed to this issue. In summary, on the plaintiff's side, as I have already indicated, Councillors Tudori and Davidson confirmed that the words complained of were spoken and they did not modify their evidence under cross-examination. The defendant gave evidence in support of her version of what was said and this version was affirmed by four witnesses called by the defendant, namely, Dr Nattrass, Mr Hunt, and two staff members, Mr Dunne and Ms Jennings. A number of other witnesses could not recall any reference being made to the plaintiff other than as the claimant behind the Cohen litigation.

63 I am obliged to treat the evidence given by Councillor Tudori with some caution. He, himself, admitted that he was hard of hearing and this was apparent from his demeanour in court. He was generally rather imprecise in his recollections and in the expression of his views. If he were the only witness called on the plaintiff's side, I would not be persuaded on the balance of probabilities that the words complained of were spoken. On the other hand, however, I found Councillor Davidson to be a convincing witness and quite firm and clear in her recollection of what was said. It is significant that she was in close proximity to Councillor McEvoy and, thus, well placed to take account of what was said. It was clear from her evidence that she registered the remark with an acute feeling of surprise.

64 I treat the version given by the defendant with a degree of caution. It is significant that on the evidence before me, she did not appear to have a solid basis for a remark of the kind comprising her version of what was said, namely, that the plaintiff might be leaving his premises. As I have already indicted, the plaintiff had been involved in some disputation with the landlord and with the council, but on the evidence before me he had not foreshadowed any intention to leave the premises. The evidence is quite clear that he was never asked to leave and did not take any specific step in that direction.

65 The defendant said in evidence that a friend of the plaintiff named Brian Coleman was a customer at her hotel premises in Murray Street. According to the defendant, she had a conversation with this man a week or so prior to the council meeting in which reference was made to the plaintiff being troubled by what was happening in the vicinity of his premises. In that context, Coleman expressed the view that the plaintiff had had enough and would move out. The defendant contended in her evidence that it was against this background that she was prompted to remark at the briefing session that the council might not have to worry because she thought the plaintiff was moving out. It is also significant that it was only at the trial of the action that the defendant was prepared to give her version of what was said. It was obviously in her interests to provide a less contentious version of her remarks.

66 Dr Nattrass and Mr Hunt were in proximity to the defendant and therefore close enough to hear whatever it was she said. I am left with an impression from their evidence, however, that they did not pay a great deal of attention to the defendant's remarks. It was apparent from Dr Nattrass' evidence that, as the presiding officer, he was accustomed to backchat between councillors and various rhetorical flourishes as part of the usual ebb and flow of a meeting. I accept that he had some recollection of the principal point being made by the defendant that the plaintiff might be moving out, but I am not sure that he registered exactly what was said. Likewise, I was left with an impression that Mr Hunt, quite understandably, was more concerned with the progress and outcomes of the meeting than with debating points or random interventions. Mr Dunne and Ms Jennings were at the far end of the table and, again, the indications were that they may not have taken particular notice of an aside during the course of debate which did not bear directly upon their areas of responsibility. Mr Dunne agreed that from time to time he was attending to his laptop computer.

67 Against this background, I have come to the conclusion that Councillor Davidson provided the most convincing account of what took place at the briefing session when the Cohen litigation was brought up under general business. Notwithstanding the reservations I have expressed, I consider that some weight must be accorded to the evidence of Councillor Tudori and that his testimony can be regarded as corroborating the account given by Councillor Davidson. I am therefore prepared to make a finding upon the balance of probabilities that the words complained of by the plaintiff as set out in his statement of claim were spoken by the defendant.

68 I consider that the defendant's remarks were in the nature of a casual or throw-away line blurted out during the course of discussion and were not intended to be a fully-considered expression of her opinion. She believed that the plaintiff had moved because of the problems affecting his premises. In the absence of any special knowledge about the exact nature of his concerns, she seems to have arrived at the rather facile conclusion that the plaintiff could not, or would not, pay his rent and had been "thrown out". This was untrue. Nonetheless, in my view, her words were intended to place a piece of supposed information before the meeting which might possibly be explored further, or be taken up at the mediation conference set for the following day. This view of the matter brings with it a finding that the words should be regarded as a contribution to the debate about how the council should deal with the litigation, albeit of a rather superficial kind. I find that the words were uttered before the briefing session had ended.

69 I turn now to the question of whether the words complained of were defamatory. It is a matter for the Court to determine whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.

70 In the circumstances of the present case, there is certainly room for argument as to whether the pleaded imputation that the plaintiff was not able to pay his debts as they fell due arises from the words that I have found were spoken, namely, "We won't have to worry about him any more because he has been thrown out of his unit for not paying the rent."

71 The words arguably convey the meaning that the financial position of the plaintiff is shaky and he is unable to pay the rent. The tenor of the sentence in question is not that the plaintiff is involved in a dispute with his landlord and is refusing, or for some reason has justifiably failed, to pay the rent. The words "thrown out" strongly suggest that he has lost his ability to negotiate or to achieve a reasonable result, and has been removed from the premises unceremoniously. It is a further step, however, to accept that an additional layer of meaning is to be found within the words, namely, that he was not able to pay his debts as they fell due.

72 Notwithstanding the difficulties with the pleaded imputation I have just identified, in the final analysis, I consider that the pleaded imputation can be said to arise from the words complained of. When allowance is made for a certain amount of loose-thinking, a bystander would probably understand that the speaker is saying of the plaintiff that he has come to the end of the road financially. The fact that he is unable to cover the cost of his accommodation, this being one of the most basic constituents of life in the community, is an indication that he has no capacity to meet even the most pressing debt. This suggests that he is insolvent.

73 I consider that the pleaded imputation is capable of conveying a meaning defamatory of the plaintiff in that such a statement lowers him in the estimation of right-thinking members of the community. The ordinary reader would be likely to understand the words in a defamatory sense because the meaning conveyed by the words is that the plaintiff is not only a failure, but has not been able to meet his lawful obligations. A false accusation of insolvency is generally thought to be actionable in the case of a person in trade or business: Gatley (supra) par 2.37. I therefore consider that the words complained of in the present case were defamatory.

74 A question then arises on the pleadings as to whether the defendant is excused from liability because the words were published on a privileged occasion.

75 I have already set out the particulars relied upon by the defendant, as pleaded in par 7 of her defence, in support of her assertion that the words were spoken by the defendant on an occasion of qualified privilege.

76 I have little difficulty in finding that as at 6 July 1999, the plaintiff had commenced, and the City of Perth was defending, what I have called the Cohen litigation, being litigation concerned with the rubbish removal practices of the council and their impact upon the plaintiff. I am satisfied also that, in the circumstances of the present case, the defendant and members, and employees, of the City of Perth present at the briefing session had a common or corresponding interest in the subject matter of the words complained of in that the question of whether the plaintiff would remain in his premises was relevant to the forthcoming mediation conference and the outcome of the litigation in which the plaintiff sought relief by way of injunction.

77 In my view, if the defendant held an honest belief that she was in possession of some information bearing upon these matters, then she was under an obligation to contribute to a debate about the issue. I have already found that the words were uttered while the debate was still proceeding and can be regarded as a contribution to the debate.

78 In reviewing the decided cases, especially Horrocks v Lowe (supra), I have noted that in the interests of promoting free and frank exchanges by elected councillors, the law is prepared to allow some protection to a contributor to a debate forming part of council business, notwithstanding that the opinion may prove to be inaccurate, provided the speaker had an honest belief in what was said. In the present case, in the absence of any plea or proof of malice on the part of the defendant, I must presume that the defendant acted in good faith, albeit being wrong in what she said.

79 I consider that the briefing session can be characterised as one of the processes involved in the conduct of council business, notwithstanding that it is not a formal meeting of a kind recognised by the Local Government Act 1995. Those present had gathered for the purpose of discussing council business and it is quite clear from the evidence that discussion proceeded in a systematic way and was viewed by all concerned as a necessary preliminary to a formal meeting that would take place in due course. It cannot be regarded simply as an informal gathering at which those present were free to speak in a random or undisciplined way. The arrangement of the papers with a view to focussing debate in various categories of discussion clearly created an ethic that those present, councillors and full-time staff alike, should focus on the business in hand in a professional manner with a view to facilitating the business of the council.

80 I therefore consider that there was a reciprocity of interest in bringing forward and debating matters of concern to the council and to the wider community represented by the elected councillors. The progress and possible outcome of the Cohen litigation was one such matter and therefore the briefing session evinced the necessary reciprocity of duty and interest required for the defence of qualified privilege. I find that the defendant, who bears the burden of proof on this issue, has made out the various propositions comprising the particulars pleaded in par 7 of the statement of defence.

81 There is arguably a further question, in the circumstances of this case, as to whether the defendant went too far in what she said. I have drawn attention to the decision of Owen J in the Marks case (supra) in which the defendant raised a plea of privilege, but was held to be not entitled to the protection afforded by such a defence because the comments made in the article complained of in that case went beyond the requirements of the occasion.

82 In my view, it is not necessarily fatal to a plea of privilege that the defendant was wrong in what she said (as she was) or spoke unwisely, for the law is prepared to allow a reasonable degree of latitude to a person voicing their thoughts on a privileged occasion, and especially at a municipal meeting. It will be recalled, however, in the circumstances of the present case, that the defendant was basing her observations simply upon some casual remarks made by one of her customers. She had no compelling reason to believe that the plaintiff had been or was being evicted for non-payment of rent.

83 Nonetheless, I give weight to that part of the reasoning of Owen J in the Marks case in which he noted that privilege is not destroyed by the inclusion of information outside the ambit of the privilege. The defamatory material will be protected by the privilege if it is relevant to the matters at the heart of the duty or interest. In the absence of evidence to the contrary, I must proceed from the premise that the defendant held an honest belief that she was possessed of an important piece of information. It had a bearing upon the debate being conducted in her presence, namely, that the plaintiff, as the person advancing a claim against the council, would be moving out or was no longer in his premises and, thus, the claim against the council might fall away.

84 In my view, as I have already indicated, she was entitled to add that thought to the debate (even though it was incorrect as a matter of objective fact). The question is whether it went beyond the requirements of the occasion for her to add a speculative comment to the effect that the moving out was due to an alleged non-payment of rent. On the evidence before me, she had no basis for such a claim and the purpose of the briefing session was to ensure that those conducting the business of the council were properly informed.

85 After careful consideration, I am persuaded that the words spoken by the defendant did not go beyond the requirements of the occasion. It follows from earlier discussion that councillors are at liberty to speak freely, bluntly and boldly at meetings convened for the purpose of dealing with council business. The defence of privilege extends to erroneous statements provided the speaker held an honest belief in the truth of the statement and spoke on an occasion of privilege. Privilege is not destroyed by the inclusion of incidental assertions or information that might otherwise be regarded as outside the ambit of the privilege. One cannot expect councillors or other participants in debates about community affairs to speak with the precision of a scholar or a diplomat; indeed, much of value would be lost if representatives of the community felt constrained by the law of defamation from speaking their minds freely.

86 Justice Owen noted in the Marks case that the question of whether there is a duty to speak can be tested by asking whether the communication was made on an occasion on which a person who desired to do his duty to society would reasonably believe that he ought to make it. The defendant's remark was ill-considered, but the central thought was relevant, namely, whether the plaintiff would be able to maintain the litigation. As an elected councillor, she was entitled and expected to express her views. In my view, she held a reasonable belief that as a participant in the briefing session, she was entitled speak as she did.

87 Accordingly, I am satisfied that the plea of privilege advanced in par 7 of the statement of defence is sufficient to defeat the plaintiff's claim.

88 If I be wrong in the views I have expressed concerning privilege, it becomes necessary to consider whether the words complained of can be characterised as slander actionable per se, or whether the plaintiff is required to prove special damage.

89 I have previously noted that one category of slander actionable per se concerns those situations in which the words complained of are calculated to disparage the plaintiff in any office, profession, calling, trade or business held or carried on by him at the time of publication: Gatley on Slander and Libel (9th ed) par 4.2. It appears from Chakravarti (supra) and other decided cases that the words must be spoken of the plaintiff in the way of his office, profession, calling, trade or business.

90 In the present case, it might be argued that the context in which the words were used was that the plaintiff, as an inner city resident, had brought a nuisance claim against the council and this had given rise to some litigation. He was being spoken of essentially as a resident of the City of Perth. He was not being disparaged in his role as the operator of a business. Accordingly, the claim cannot be regarded as a case of slander actionable per se.

91 This, essentially, was the stance adopted by the defendant in regard to this issue. On this view of the matter, the plaintiff could not succeed in his claim without proving special damage.

92 It follows that I am obliged to take a closer look at the law bearing upon this issue, for the words complained of do not refer expressly to the plaintiff's trade or occupation, and the plaintiff does not contend that he was the holder of an office.

93 The Laws of Australia vol 6 contains this passage concerning slander actionable per se at par 45:

"Material which defames a person or company in the way of occupation, profession, trade or office is actionable without proof of special damage. The plaintiff must hold the position at the time the material is published. The words must be directed at the plaintiff in respect of his or her occupation or office; it is not enough that the imputation injures a person in his or her office.

An imputation of bankruptcy or insolvency of a trader is actionable per se. The law recognises that 'solvency is so essential a factor in the existence of a trader that to speak of him as insolvent will necessarily "touch him in his trade"'."

94 The principal authority relied upon in support of the passage in question is Jones v Jones [1916] UKHL 2; [1916] 2 AC 481. In that case, Lord Wrenbury recognised at 407 that, in regard to an imputation of insolvency, there is no necessity for a "colloquium", that is to say, for speaking of the insolvency with reference to the plaintiff's trade. The law will take notice of the fact that solvency is so essential a factor in the existence of a trader that to speak of him as insolvent will necessarily touch him in his trade. In the case of a professional person such as a solicitor, however, there must be a "colloquium", that is to say, in such a case, the words must be spoken of the plaintiff in the matter of his profession.

95 To my mind, it follows from these authorities that the words complained of in the present case can be characterised as a form of slander actionable per se. I have found that the words complained of were spoken and would convey to the mind of an ordinary bystander that the plaintiff was unable to pay his debts as they fell due, this being the pleaded imputation relied upon by plaintiff. I am satisfied that the plaintiff was engaged in trade or business. It appears from the reasoning in Jones v Jones (supra) that the reputation of a trader is presumed to be affected by words alleging insolvency, notwithstanding that the imputation is not made about him expressly in his capacity of trader. See also Viscount Haldane in Jones at 491.

96 For the sake of completeness, I must now turn to another issue raised at the trial of the action. If I be wrong in the view I have just expressed that the words complained of can be characterised as slander actionable per se, it is incumbent upon the plaintiff to establish that he has suffered special damage. The decided cases including Chakravati (supra) indicate that, special damage is some form of loss capable of assessment in money terms. Unless the plaintiff can show special damage arising from the original publication, he will be unable to prove special damage sufficient to allow the slander to be actionable: Parkins & Anor v Scott & Anor [1862] 1 H&C 153; Lynch v Knight [1861] All ER 2344.

97 In the present case, the matter of special damage principally relied upon by the plaintiff, in his pleadings, and in the course of the trial, was the alleged termination of his 30-day credit arrangement by the operator of the bus tour company. The evidence bearing upon this issue was unsatisfactory because there was no clear evidence before the Court as to what it was exactly that the charter bus operator had heard and to what extent, if any, his determination to change the arrangements was translated into an actual financial loss suffered by the plaintiff. It follows that I am obliged to find that the plaintiff did not suffer special damage of the kind alleged.

98 The pleadings contained a reference also to Councillor Tudori's support for the plaintiff's injunction being diminished as a consequence of the words complained of, but, again, the evidence does not establish that this was translated into a financial loss suffered by the plaintiff. Further, and in any event, I remind myself that the plaintiff eventually succeeded in his claim against the council and this may be taken as substantiation that his claim was not impeded by the alleged diminution in support.

99 There is also another and more fundamental bar to this aspect of the plaintiff's claim. It is apparent from my observations to this point that the special damage, if any, which is said to flow from the tour operator's stance, is a consequence not of what was said by the defendant at the briefing session - for the tour operator was not present on that occasion and therefore could not be affected by her remarks - but by the repetition or republication of the defendant's remarks in a form which eventually reached the tour operator. It is true that, in some circumstances, the original speaker can be held responsible where the repetition or republication is found to be the natural and probable consequence of the original publication. However, in the present case, the plaintiff has not pleaded any republication or the basis upon which he claims the defendant is liable for damage for any subsequent republication.

100 A defendant is prima facie not liable for damages caused as a result of a republication except in circumstances where the defendant authorised the republication or the republication was, in the circumstances of the case, the natural and probable result of the original publication: Sims v Wran [1984] 1 NSWLR 317; Cock & Anor v Hughes & Ors [2001] WASC 151.

101 I consider that, in the circumstances of the present case, where the words complained of were uttered at what was essentially a confidential meeting, the defendant cannot be held to have authorised or intended a republication of her remarks and nor was it a natural and probable result of the original publication. I have already noted that the words were not being placed before the meeting as a considered opinion, but were in the nature of a gratuitous aside that might prove useful to the council, but would probably have to be investigated further. Accordingly, in these circumstances, the defendant could not reasonably have anticipated that the words would be republished to outsiders. The words were simply intended to contribute to a formulation of the council's strategy in respect of the Cohen litigation, being a matter which would generally be confidential to the decision-makers within the council and the council's legal advisers.

102 Accordingly, as to the special damages issue, I am not satisfied on the balance of probabilities that the plaintiff has proved special damage. This is a necessary constituent of a slander claim in circumstances where the words complained of are not actionable per se. It follows that if I be wrong in the views I have expressed concerning privilege, and whether the words were actionable per se, I consider that the plaintiff's claim must fail upon the basis that he has failed to prove special damage. Further, and in any event, even if it be held that the plaintiff suffered special damage, I am not satisfied that the defendant can be held responsible for the loss in the circumstances of the present case where the loss, if any, is referable not to the original publication, but to a republication.

103 In summary, then, I find that the words spoken by the defendant at the council briefing session on 6 July 1999 were defamatory of the plaintiff. The words amounted to a slander actionable per se. However, the plaintiff's claim will be dismissed, principally because the words complained of were spoken on a privileged occasion as defined by par 7 of the defendant's statement of defence. I will hear from the parties as to whether any further orders or directions are required.

Cohen v McEvoy [2001] WASC 349

At a glance

Court

Decision date

Before

Catchwords

Source

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Judgment (132 paragraphs)

Cohen v McEvoy [2001] WASC 349 (19 December 2001)

Parties

Legislation Cited (1)

Cases Cited (10)