Supreme Court of WA|1999-08-20|Before: Anderson J, Steytler J, Levine J

Gardiner & Anor v Ray [1999] WASC 140 (20 August 1999)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : GARDINER & ANOR -v- RAY [1999] WASC 140

Civil procedure - Supreme Court procedure - Applications to strike out pleadings - Purpose of time limit provided for by O 20 r 19

Torts - Damages - Difference between aggravated damages and exemplary damages

Defamation - Damages - Aggravated damages - Anonymous libel

Defamation - Damages - Exemplary damages - Refusal to apologise - Republication where defendant seeks to remain anonymous

Application for extension of time to bring application to strike out statement of claim refused

A v Ipec Australia [1973] VicRp 4; [1973] VR 39

Clark v Ainsworth (1996) 40 NSWLR 463

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Grubb v Bristol United Press [1963] 1 QB 309

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

Hoad v Nationwide News Pty Ltd & Ors, unreported; SCt of WA (Anderson J); Library No 960617; 24 October 1996

Laurence v TVW Enterprises Ltd (1992) 6 WAR 289

Ma Ching Knan & Anor v John Fairfax Publications, unreported; SCt of NSW (Court of Appeal); No CA40348/96 & No CA40351/96; 30 July 1998

Metaxas v West Australian Newspapers Ltd & Anor, unreported; SCt of WA; Library No 970411; 18 August 1997

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260

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

Parker v Copeman (No 2), unreported; SCt of WA (Master Seaman QC); Library No 6977; 16 December 1987

Pickering & Ors v Publishing and Broadcasting Pty Ltd & Anor, unreported; SCt of NSW (Levine J); No 21293/95; 21 June 1996

Speight v Gosnay (1861) 60 LJQB 231

Taylor v Jecks (1993) 10 WAR 309

Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58

1 STEYTLER J: This is an application to extend the time limited by O 20 r 19(3) of the Rules of the Supreme Court for the bringing of an application to strike out the plaintiffs' statement of claim in defamation proceedings and, if that application should be successful, for an order striking out the whole of the statement of claim, or alternatively, pars 2, 4, 8, 11.2, 13 and 14 thereof.

2 The plaintiffs' statement of claim was filed on 19 February 1999, but appears to have been served on the defendant on 22 February 1999. The chamber summons for leave to bring the application and for orders striking out the statement of claim was filed only on 12 April 1999, some four weeks late.

3 The only explanation for the delay is one given by way of an affidavit sworn by Mr Peter Nevin, the solicitor having the conduct of the matter on behalf of the defendant. In it he has said that a defence was required to be filed by 12 March 1999 but that he was unable, because of his workload, to file that document by the specified date. On 16 March 1999, he conferred with counsel with a view to having counsel settle the defence. He was told by counsel that the statement of claim was deficient and that the defects should be brought to the attention of the plaintiffs and corrected before a defence was filed. On 17 March 1999, he wrote to the plaintiffs' solicitors, drawing their attention to the defects which had been identified by counsel. The plaintiffs having elected not to amend their statement of claim, the application to which I have referred was filed.

4 Before returning to the application for an extension of time, I should say something about the merits of the application to strike out.

5 The plaintiffs plead, in par 1 of their statement of claim, that they are and were at all material times the owners of 33 Landsdowne Street, Jolimont, in the State of Western Australia. They have defined, in their pleading, that property as "the Landsdowne Street property". Then, in pars 2 and 3 of their statement of claim, they plead as follows:

"2. In or about December 1998 Post Newspapers Pty Ltd, carrying on business as 'The Subiaco Post' community newspaper ('The Subiaco Post') published in the 19/20 December 1998 edition of its newspaper an article headlined 'Minister asked to rule on Jolimont Balconies' of and concerning, inter alia, the Plaintiffs and the Lansdowne Street Property.

3. On or about 22 December 1998 the Defendant wrote, and thereby published of and concerning the Plaintiffs to The Subiaco Post the following words:

The news item regarding Jolimont balconies that appeared in your paper of 19/20 December can not go unchallenged, as it contained factual errors and deliberate misinformation.

The Gardiners had applied for alteration to their house and original plans submitted to the Subiaco Council for approval did not have any french doors or balconies. The plan was approved as presented, despite protests from neighbours that it did not comply with Council's policy relating to Protection of Privacy in Residential Development. So the claim by the Gardiners that the Council had approved the doors and the balconies is patently false. The doors and balconies have been put up without the Council's approval and despite the Council's stop work order. With the alteration in place, the Gardiners sought the Council's retrospective approval. To my certain knowledge at least two immediate neighbours had objected to the ugly alteration on grounds of invasion of privacy and lack of aesthetic quality. They had also objected to increasing the height of the rear wall.

Mrs Gardiner had been fully aware of the Council's and the neighbours' objections prior to the construction of the balconies. She is not being entirely honest when she says that she was not aware of any problems. She has presented the Council and the neighbours with a fait accompli and is now appealing to the Minister, acting as an injured party. It will be an injustice and total travesty of fair play if the Minister allows her appeal.

Mrs Gardiner's comments about balconies constructed in the past, well before the adaptation [sic] of the present policy, is beside the point and a blatant attempt to muddy the issue, as is her attack on the Council and the Chief Executive Officer. In the past mistakes were made and concerns regarding privacy were not properly addressed, which is all the more reason why we should not repeat the same mistakes and compound the effect.

It may be pertinent to note that the Gardiners had complained bitterly about alterations to the adjoining property at their Rupert Street house. It appears that they feel that there should be one rule for them and another for others.

6 The letter referred to in par 3 of the statement of claim ("the letter") is said, in par 4, to have given rise to the following imputations arising from its natural and ordinary meaning:

"4.1 the Plaintiffs had deliberately lied about their building works at the Landsdowne Street Property to The Subiaco Post newspaper;

4.2 the Plaintiffs were hypocritical in complaining to The Subiaco Post newspaper;

4.3 the Plaintiffs had attempted to mislead the public in respect of their building works at the Landsdowne Street Property by their statements to The Subiaco Post newspaper; and

4.4 the Plaintiffs had deliberately engaged in illegal building activities in respect of their works at their Landsdowne Street Property after being lawfully directed to stop building works."

7 Those imputations are said, in par 5 of the statement of claim, to have been defamatory of the plaintiffs.

8 Then, in pars 6 and 7 of the statement of claim, the plaintiffs plead that the letter was published to The Subiaco Post newspaper in circumstances in which that newspaper was authorised by the defendant to republish the letter or in which the republication was the natural and probable consequence of the publication to the newspaper or, by way of a further alternative, in which the defendant intended that newspaper to republish the letter.

9 The plaintiffs plead, in par 7, in effect that the newspaper did republish the substance of the letter in its 26/27 December 1998 edition. The republication is pleaded, in par 8, to have given rise to the same imputations as those pleaded in par 4.

10 Then, in pars 11 to 14 of the statement of claim, the plaintiffs plead as follows:

"11. The Libel was published by the Defendant in circumstances where:

11.1 the Defendant intended that the defamatory imputations contained in and conveyed by the Libel be published to a wider audience than the Libel, being to the community at large including the community within which the Plaintiffs resided and concluded [sic] their business; and

(a) The Subiaco Post community newspaper is widely distributed, inter alia, throughout Subiaco and Jolimont.

11.2 the Defendant stipulated to The Subiaco Post that he wished to remain anonymous in order to avoid the consequences of his defamation of the Plaintiffs.

12. Further, since the publication of the Libel and the Republication, the Defendant has:

12.1 refused to apologise to the Plaintiffs for the Libel and the Republication, despite the Plaintiffs' written demand for an apology and an apology being self-evidently called for;

12.2 acted in an insolent, high-handed and contemptuous manner in respect of the Plaintiffs' complaint regarding the Libel and the Republication in that the Defendant:

12.2.1 returned the Plaintiffs' letter before action and draft apology to the Plaintiffs' solicitors stating that although the envelope containing that letter before action and draft apology was addressed to the Defendant, the letter itself was addressed to a 'Mr K R Kay' and that the Defendant did not know of any Mr K R Kay, in circumstances where the Defendant knew or ought to have known that the letter before action and draft apology was directed to the Defendant; and

12.2.2 by his letter to the Plaintiffs' solicitors dated 3 February 1999:

12.2.2.1 expressly refused to provide an apology to the Plaintiffs;

12.2.2.2 asserted the truth of the imputations contained in the Libel and the Republication; and

12.2.2.3 accused the Plaintiffs of having a persecution paranoia brought on by a guilt complex.

13. By reason of the matters described in paragraphs 6 and 11 herein the Defendant's conduct in publishing the Libel was unjustifiable and has aggravated the hurt and damage suffered by the Plaintiffs, and the Plaintiffs thereby claim aggravated damages against the Defendant.

14. By reason of the matters describe [sic] in paragraphs 11.2 and 12 herein, the Defendant's conduct in defaming the Plaintiffs and thereafter has been contemptuous, insolent, high-handed and in contumelious disregard of the Plaintiffs' rights and the Plaintiffs thereby claims [sic] exemplary damages against the Defendant."

11 The defendant, first, makes a number of complaints in respect of pars 2 and 4 of the statement of claim. He submits, by his counsel, that, because the imputations pleaded in par 4 do not rely, in any way, upon the article referred to in par 2 of the statement of claim, the whole of par 2 is irrelevant and consequently embarrassing in that it gives rise to a false issue. Moreover, he contends, insofar as each of imputations 4.1, 4.2 and 4.3 assumes knowledge, on the part of the reader, of what had been said by the plaintiffs to The Subiaco Post newspaper, those imputations can only stand if they are pleaded as "true" innuendos and the extrinsic fact of the plaintiffs' communications with The Subiaco Post newspaper are pleaded.

12 I am not persuaded that the contention that each of the imputations complained of arises solely from the terms of the letter dated 22 December 1998 is so manifestly untenable as to warrant those imputations being struck out.

13 It is apparent from the letter that a news item had appeared in the newspaper on 19/20 December "regarding Jolimont balconies", in which Mrs Gardiner was quoted as saying that she was not aware of any problems as regards construction of those balconies and which reported that she had commented about balconies constructed in the past. It might, in my opinion, reasonably be inferred from the contents of the letter that the comments of the plaintiffs (or, perhaps more accurately, Mrs Gardiner) there referred to had been made in the course of an interview with The Subiaco Post newspaper. It is, in this respect, established that the ordinary reasonable meaning of words complained of may be either the literal meaning of those words or what is implied or inferred from them. (See Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 at 165 and 167 and Jones v Skelton [1963] SR (NSW) 644 at 650). The question is, in each case, whether these words are reasonably capable of conveying the imputation contended for (Amalgamated Television Services Pty Ltd v Marsden, at 165; Jones v Skelton, at 650 and Lewis v Daily Telegraph Ltd [1964] AC 234 at 259).

14 It is, I think, also arguable that the ordinary reasonable reader might reasonably infer from the terms of the letter (and in particular, the reference in the third last paragraph thereof to the appeal to the Minister by Mrs Gardiner "acting as an injured party", the reference, in the last paragraph thereof, to an earlier complaint about alterations to an adjoining property at the Gardiners' Rupert Street house and the reference to the fact that the Gardiners apparently "feel that there should be one rule for them and another for others") that the plaintiffs had complained to the newspaper about the matters the subject of their appeal to the Minister.

15 While it is true that, because the article referred to in par 2 of the statement of claim is not relied upon as an extrinsic fact for the purpose of pleading a "true" innuendo, it serves no purpose as regards the imputations pleaded in par 4 or otherwise (except perhaps as part of the narrative) I doubt that it gives rise to any real embarrassment.

16 Counsel for the defendant next complained that there is, in the letter, no reference to "the Landsdowne Street property" that expression being, as I have said, defined in par 1 of the statement of claim to mean the property at 33 Landsdowne Street, Jolimont. That being so, he contended that, insofar as imputations 4.1, 4.3 and 4.4 refer to that property, they rely upon information not contained within the letter and should not be allowed to stand as imputations said to arise on the strength, only, of the natural and ordinary meaning of the letter.

17 There is, I think, substance to this complaint. All that might be inferred from the letter is that the building works related to a property in Jolimont that was owned by the plaintiffs. There is nothing in the letter which identifies the address of that property or from which it might be inferred. That being so the imputation, as pleaded, could only stand, in this limited respect, if pleaded as a "true" innuendo, coupled with a plea of knowledge, on the part of readers of the letter, of the extrinsic fact of the address of the property. However the pleading could, if this is thought advisable, readily be amended, without causing any difficulty, so as to refer to the plaintiffs' property in Jolimont rather than to a property at the specified address.

18 Next, counsel for the defendant complained that the imputations lack the requisite precision. He submitted that the reference in pars 4.1, 4.3 and 4.4 to "their building works" or "their works" is vague and imprecise, leading to embarrassment. He also submitted that the words "illegal building activities" in imputation 4.4 are vague and imprecise.

19 It seems to me that the reference to "their building works" or "their works" sufficiently refers to the alterations referred to in the letter. I do not consider that these words give rise to any embarrassment. Similarly, it seems to me to be plain enough that the words "illegal building activities" refer to the alterations referred to in the letter which, according to that letter, had not been approved by the Subiaco Council.

20 The defendant makes the same complaints in respect of par 8 of the statement of claim as are made in respect of par 4 thereof. The same comments consequently apply to those complaints.

21 The defendant's remaining complaints relate to the pleas of entitlement to aggravated damages and exemplary damages.

22 As to the former, counsel for the defendant contends that the matters pleaded in pars 6 and 11 of the statement of claim do not, either alone or in combination, give rise to an arguable claim for aggravated damages.

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

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

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

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

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

27 It seems to me to be arguable that the sending of libellous material of the kind alleged to a newspaper in circumstances in which it is intended, or at least probable, that it will be republished by that newspaper and circulated in the community in which the plaintiffs live and work and in which the author of that material seeks to remain anonymous could give rise to an award of aggravated damages. The contention is, I think, open that it is unjustifiable or improper to publish an anonymous libel of this kind and that the inability, even if only temporary, to identify the author of the offending material might aggravate the hurt and damage suffered by the plaintiffs. They might, in such a case, not know whether or not the author was one of their neighbours and, if so, which. They could not confront the author and challenge or correct his or her assertions. There would, as counsel for the plaintiffs pointed out, consequently be no way of immediately redressing, in this way, the hurt caused by the publication.

28 I should add that, contrary to submissions made on behalf of the defendant, I do not consider that anything in par 11.2 of the statement of claim is vague and therefore embarrassing. While it is true that the "consequences" there referred to are not expressly identified, it is, in my opinion, sufficiently plain that the consequences referred to are any steps or proceedings which the plaintiffs might take in retaliation for the publication of the offending material.

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

30 It seems to me to be arguable that the refusal to apologise pleaded in par 12.1 and par 12.2.2.1, coupled with the conduct pleaded in the balance of par 12.2 (which took place in a context in which the defendant had sought to remain anonymous as regards the republication of the letter), might be found to be contemptuous of the plaintiffs in such a way as to amount to conscious wrongdoing in contumelious disregard of their rights.

31 Moreover, while the defendant contends that the pleading in par 14 does not specify whether the claim for exemplary damages is in respect of the alleged libel alone, or of the libel and the republication thereof, and is consequently embarrassing, I am unable to accept that contention. It seems to me to be plain that the exemplary damages are sought in respect of the circumstances surrounding the publication of the libel. I am unable to accept that there is any obligation on the plaintiffs to plead anything more.

32 It follows from what I have said that, if I was to extend the time limited for the filing of the application, I would be disposed only to contemplate striking out par 2 of the statement of claim and to strike out the references, in par 4.1, par 4.3 and par 4.4, to "the Lansdowne Street Property". However I do not consider that I should do so.

33 Applications to strike out pleadings are, in my opinion, overused. They are always productive of delay and expense, sometimes substantially so, and often produce no sufficient countervailing benefit, particularly when they are brought at a late stage of the proceedings. It was because of considerations of this kind that the time limit fixed by O 20 r 19 was introduced. (See Seaman: Civil Procedure Western Australia par 20.19.2.) The purpose underlying that time limit is that of ensuring that, if an application of this kind is brought, it should be brought promptly so that it might at once be disposed of and the action continued without further interruption. The time limit is one to which more than lip service should be paid. Those who wish to bring an application of this kind, whether in defamation proceedings or otherwise, should consider, within the period fixed for that purpose, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense. If the benefit is outweighed by the delay or expense, or both, the application should not be brought. If the converse is true, the application should be filed promptly.

34 It seems to me, with due respect, that no sufficient basis has been shown for allowing this application to be brought late. While one or two points have been made out on behalf of the defendant, the defects raised are not, in my opinion, such as should, in any material way, impede the further progress of the action or prejudice its proper outcome.

35 I propose, consequently, to refuse the application to extend time.

Gardiner & Anor v Ray [1999] WASC 140

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Judgment (86 paragraphs)

Gardiner & Anor v Ray [1999] WASC 140 (20 August 1999)

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Cases Cited (13)