Foulsham, J. & Anor v West Australian Newspapers Ltd [1987] FCA 286

6. The application be listed for further directions at

Note: Settlement and entry of orders is dealt with in

IN THE FEDERAL COURT OF WESTERN AUSTRALTA DISTRICT REGISTRY GENERAL DIVISION

BETWEEN: JOHN WILLIAM MUNRO FOULSHAM and TIMOTHY GRAHAM SCHWASS

CORAM: FRENCH J. 5 JUNE 1987 REASONS FOR JUDGMENT The applicants in this case are legal officers employed

by the Department of Community Welfare in the State of Western

On 24 March 1985 they commenced proceedings in this

Court claiming against the respondent damages for misleading and

deceptive conduct in contravention of s.52 of the Trade Practices

Act 1974 and further or alternatively, damages at common law for

The action arises out of publications in the Daily News newspaper of articles relating to advice given out by welfare officers with the Department as to the entitlement of children to

The publications complained of are said to have occurred on 20 February 1984 in the City and Final editions of the paper

(a) Had been giving wrong advice to children, parents and other authorities;

The statement of claim as amended by an order of Toohey J. on 23 December 1985 sets out in paragraphs 3, 7, 11 and 15 extensive quotations from the offending articles said to have been

The defence, which was also amended pursuant to an order of Toohey J. made on 20 January 1987, admits the various publications alleged but denies 1n each case that the words referred to, and were understood to refer to, the applicants. It is also denied that the publications constituted misleading or

publication on an occasion of qualified privilege were raised.

A reply to the defence which was filed on 12 May 1987

alleges that the publications were actuated by express malice.

The motions before the Court today are as follows:-

A motion by the applicants seeking leave to amend parts of the amended statement of claim by deleting significant portions of the quotations from the articles complained of.

By the same motion the applicants seek leave to file an order for the answering of certain additional interrogatories.

A motion on the part of the respondent seeking to strike out the reply as being likely to prejudice, embarrass or delay the proceedings or alternatively as being vexatious and frivolous and disclosing no reasonable case of malice.

The motion for leave to further amend the statement of

claim 1s opposed by the respondent. The motion is evidently

inspired by a comment made by Toohey J. on 23 December 1985 in his

reasons for judgment on an earlier motion to strike out parts of

"Although the applicants complain only of certain passages, they have pleaded the articles in their entirety. This 1S unnecessary and it makes_ the statement of claim hard to assimilate readily. While the respondent has made no formal complaint about this

aspect of the pleading, it is one that should be attended to before the application goes any further."

The respondent contends that 1f the applicants are allowed to delete the indicated passages from the quotations of the articles published, the balance of the quotations will be out of context. In effect they seem to be saying that the articles

In Gatley on Libel and Siander Eighth Edition at paragraph 1069 1t 1s said:-

"Tf the plaintiff is suing in respect of certain libellous passages in an article or letter, he should not set out the whole article or letter; it 1s sufficient to set out the libellous passages only, provided their meaning be clear and distinct. But if the meaning of the passages needs clarification from the context, or if the imputation conveyed by the libellous passages is materially altered or qualified by other Passages in the article or letter, the plaintiff should specify those other passages which, as he contends, are

the context from which the natural and ordinary meaning is derived. He should not plead the whole article or

letter. On the other hand, semble, he cannot pick and choose between libellous passages which are not in severable parts of the work. And there may be cases in which the plaintiff can set out a whole article in the statement of claim, and rely on the effect it makes as a whole; in such a case the defendant would not be

entitled to particulars or which parts of it are alleged to be defamatory (sic)."

In my opinion, it is the applicants who are at risk by the deletion of the passages which are the subject of the

amendment. For if the portions they now rely upon should not, in isolation, bear the meanings they attribute to them they will be

If there are parts not pleaded which the respondent says qualify the meanings attributed to the pleaded portions, then it may raise those portions either particularly or by general

reference in the defence to the context and balance of the article

In the event I will allow the amendments which are now

Before passing to the interrogatories it 1S convenient

to deal with the respondent's motion to strike out the reply.

The reply alleges express malice and gives particulars

Paragraph (a) sets out the substance of a conversation between the applicant Schwass and a reporter, Maisey, working for

Each of the conversations is said to have taken place

prior to the first publication complained of on 20 February 1984.

ste en wa . . eee <a tn ll ale DUS AR SER ST. Sees ye

"The respondent published the said words knowing them to be untrue and/or reckless not caring whether they were

true or false and/or without any honest belief in their truth."

The substance of the conversations as pleaded in paragraphs (a) and (b) appears to be accurately reflected in the articles quoted as they stood prior to the amendment of the

statement of claim as sought by the applicants' motion.

The complaint of the applicants seems to be that the respondent should not have published material conflicting with the

account given by the applicants without further enquiry.

The basis upon which the allegation in paragraph (c) is

I find difficulty with the reply and with _ the proposition that putting two conflicting accounts in an article 1s

iundictative of malice against one side of the argument.

Nevertheless I am not inclined at this stage to strike out the reply having regard to the general principles governing

such applications as enunciated in General Steel Industries Inc. v

Commissioner for Railways (NSW) and Others (1964) 112 CLR 125 at 129.

I am of the view however that the respondent 1s entitled

to particulars of the facts upon which the applicants rely to

support their allegations contained in paragraph (c). The provision of such particulars 1s required where there 1s a pleading of a condition of mind including malice and any

In my opinion such further particulars of facts upon which the applicants rely to establish the condition of mind

pleaded in paragraph (c) can be regarded as particulars of the

Pinally as to the interrogatories for which leave is sought, it 1S sought with respect to interrogatories numbered 2 and 3 in a notice dated 15 April 1987. Leave has already been given by Toohey J. with respect to interrogatory number 1. For completeness of understanding however I will set out all three

"1. Are the three pages of documents attached hereto a copy of the transcript of the reporter's conversation with the plaintiffs?

2. If the answer to question number 1 1s "yes", did the defendant seek advice with respect to the conversations before publishing the articles the

subject of these proceedings? Py 3. If the answer to question number 2 1s "yes",

(b) whether or not the defendant acted on that = advice;

action did the defendant take with respect to that advice?"

• = 1 bE Roe a0 kd RTS IT NRE OEE 820 8 we ae ors ae gat

In my Opinion the interrogatories numbered 2 and 3 which are the subject of the motion before the Court today, are so wide as to be oppressive and potentially irrelevant and the respondent

In the upshot I will allow the proposed amendments to the amended statement of claim, decline leave to interrogate as sought in the applicants' motion and will dismiss the motion to strike out the reply. I will however order that the applicants give particulars within 7 days of the facts upon which they rely

to support the condition of mind pleaded in paragraph (c) of the

I certify that this and the preceding seven (7) pages are a true copy of the reasons for judgment herein of his