Supreme Court of WA|2006-08-18|Before: Mr J

Lawrence v McCusker [2006] WASC 173 (18 August 2006)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : LAWRENCE -v- McCUSKER [2006] WASC 173

Defamation - Application to strike out statement of claim - Whether imputations capable of being conveyed - Whether defective in form - Whether arguable claim for aggravated and exemplary damages - Turns on own facts

Amalgamated Television Services v Marsden (1998) 43 NSWLR 158

Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027

Buckeridge v Walter [2006] WASCA 22

Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44

Chakravarti v Adelaide Newspapers Ltd (1998) 193 CLR 519

Channel Seven Adelaide Pty Ltd v DJS [2006] SASC 10

Clark v Ainsworth (1996) 40 NSWLR 463

Coloca v BP Australia Ltd [1992] VicRp 74; [1992] 2 VR 441

David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516

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

Favell v Queensland Newspapers Pty Ltd [2005] HCA 52

Gumina v Williams (No 1) (1990) 3 WAR 342

Interval Resort Networks (Australasia) Pty Ltd v West Australian Newspapers Ltd [1999] WASC 2

Lewis v Daily Telegraph Ltd [1964] AC 234

Maxwell v Pressdram [1987] 1 WLR 298

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Pollack v Volpato [1973] 1 NSWLR 653

Privy Council in Jones v Skelton [1963] 1 WLR 1362

Random House v Abbott [1999] FCA 1538; (1999) 167 ALR 224

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996

Rookes v Barnard [1964] UKHL 1; [1964] AC 1129

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

Taylor v Jecks (1993) 10 WAR 309

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

Birmingham v West Australian Newspapers Ltd [1999] WASC 19

Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 8 December 1997

Hepburn v TCN Channel Nine Pty Ltd [1984] NSWLR 386

Purcell v Cruising Yacht Club of Australia [2003] NSWSC 245

1 MASTER NEWNES: This is an application to strike out certain paragraphs of the amended statement of claim on the ground that they do not disclose a reasonable cause of action or are embarrassing.

2 In the amended statement of claim, the plaintiff pleads that, on 15 November 2005, the defendant published the words complained of in the course of an interview on a radio programme broadcast by the Australian Broadcasting Commission in Western Australia. The text of the broadcast is annexed to the statement of claim, but it is sufficient for present purposes to refer to the particular passages relied upon as giving rise to the imputations which the defendant attacks.

"Interviewer: ...Mallard is currently serving a life sentence for the murder of Mosman Park jeweller Pamela Lawrence...

As you argued in the Court of Criminal Appeal hearing in 2003, that in fact Mrs Lawrence's husband Peter was a suspect in the killing. Do you still believe that?

Defendant: Look what we were putting forward there was not an allegation that Mr Lawrence did it. Certainly not. But what we were pointing out was there were a number of other possible suspects and we pointed to evidence which gave rise to reason for investigation. There was no allegation ever made that Mr Lawrence had committed the murder.

Interviewer: No, but you did point to him quite clearly as a possible suspect.

Defendant: Certainly did. Yeah.

Interviewer: You still hold that belief?

Defendant: Well, the ... it's not a matter of belief. It's a matter of objective evidence which was unexplained."

4 The plaintiff alleges in par 7 of the statement of claim that in their natural and ordinary meaning the words meant, and were understood to mean, that:

(a) the plaintiff is a suspect in the murder of his wife Pamela Lawrence;

(b) the plaintiff is reasonably suspected on the basis of objective evidence of having murdered his wife Pamela Lawrence;

5 In the course of argument, counsel for the plaintiff said that the plaintiff would not seek to rely on the imputation pleaded in par 7(a). That left the defendant's complaints about the imputations in par 7(b) and par 7(c).

The defendant's submissions on the imputations

6 It was submitted on behalf of the defendant that the words attributed to the defendant are dominated by explicit and forceful comments to the effect that the defendant did not allege that Mr Lawrence had committed the murder, that the defendant was pointing out that the plaintiff was one of a number of possible suspects, and there was evidence which gave rise to reason for investigation. Counsel argued that, when viewed in their context, the words were incapable of supporting the imputations pleaded or any imputation of a similar nature.

7 It was submitted specifically in relation to the imputation in par 7(b) first, that it was vague and ambiguous in that it was unclear what was meant by "reasonably" suspected or precisely what it entailed. Secondly, any plea in the nature of "suspicion on reasonable grounds" was untenable in light of the disclaimers of the defendant in the interview. Thirdly, in the context, the reference to "objective evidence" in the words complained of was, and would be understood by a reasonable listener to be, clearly directed to the existence of grounds to have previously investigated the plaintiff as one of a number of suspects, not as asserting the existence of objective evidence of the plaintiff having committed the murder.

8 It was submitted in relation to the imputation in par 7(c) that the plea was vague and ambiguous and does not allege a defamatory meaning, or alternatively, it does not plead the precise act or condition attributed to the plaintiff in that it does not distil the defamatory sting. It was also argued that it was repetitive in that the meaning was not separate and distinct from that pleaded in par 7(b). More generally, it was submitted that in light of the disavowal by the defendant of any suggestion that the plaintiff was guilty of the murder, the imputation was simply incapable of arising from the words complained of.

The plaintiff's submissions on the imputations

9 Counsel for the plaintiff submitted that it is of particular importance, when assessing the meanings that are capable of being conveyed by the words complained of, to have regard to the fact that it was an interview broadcast on radio, where the casual listener is forced to form quick impressions and does not have the opportunity to pore over the words that the reader of written material has.

10 It was argued that the meanings in par 7(b) and par 7(c) are different in substance and of increasing seriousness in import. The meaning in par 7(b) is one of reasonable suspicion of guilt on the basis of objective evidence, whereas the meaning in par 7(c) is one of objective evidence supporting guilt.

11 It was submitted by counsel for the plaintiff that nothing said by the defendant in the broadcast disavowed the meanings relied upon by the plaintiff. The defendant had said that there was evidence which gave rise to reason for investigation and agreed with the proposition that he had pointed to the plaintiff "quite clearly as a possible suspect". The defendant then went on to say that he pointed to him as a suspect, not as a matter of belief, but as a matter of objective evidence which was unexplained.

12 In relation to the meaning pleaded in par 7(b), counsel for the plaintiff said that the requirement that the plaintiff plead the specific act or condition attributed to the plaintiff in an imputation must be judged against the nature of the matter complained of. In the present case, in the broadcast the defendant simply said that the plaintiff was a suspect on the basis of unexplained objective evidence, but did not say by whom the plaintiff was suspected or what the evidence was. The words were therefore vague and generalised and the plaintiff is not required to plead with a greater degree of specificity.

13 The plaintiff's counsel submitted in relation to the meaning pleaded in par 7(c) that, once again, the defendant was not entitled to complain about the generality of the imputation in circumstances where the words complained of were themselves vague and general. It was submitted that it is self-evidently defamatory to say that there is objective evidence that a person is a murderer.

14 In relation to the submission that the meaning pleaded in par 7(c) was not sufficiently separate and distinct from the meaning in par 7(b), counsel argued that the meaning in par 7(c) was more serious than in par 7(b). In par 7(c), the imputation is that there is objective evidence that the plaintiff is a murderer. On the other hand, the meaning in par 7(b) is somewhat less serious, in that it imputes that the objective evidence leads to a reasonable suspicion that the plaintiff is a murderer. Counsel for the plaintiff referred to "Gatley on Libel and Slander", 10th ed, par 3.26, note 64, where the learned authors say that:

"It may be that there are no less than four, successive, descending layers of possible defamatory imputation: guilt, reasonable suspicion of guilt, grounds for an investigation and the fact of investigation."

15 The fact that the meanings are separate and distinct can be illustrated by enquiring what must be proved in order to justify the truth of the imputation. In the present case, to succeed in a defence of truth in relation to par 7(b) would require the defendant to establish that there is objective evidence of such a character as to make the plaintiff reasonably suspected (whether solely or as one of other suspects) of the murder. To succeed in the defence of truth as to the meaning in par 7(c), the defendant would need to establish the existence of objective evidence that the plaintiff was the murderer of his wife.

16 The principles to be applied on an application of this nature are well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342, at 346; Taylor v Jecks (1993) 10 WAR 309, at 319.

17 The principles to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of were discussed in the well-known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371:

"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:

'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

18 The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid said at 258:

"The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."

"When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury ... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire ... "

20 In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, Gleeson CJ, McHugh, Gummow and Heydon JJ at [6] referred with approval to Jones v Skelton (supra) and the judgments of Lord Reid and Lord Devlin in Lewis v Daily Telegraph (supra).

21 The meaning that the ordinary person will attribute to words will often be a first impression. As such, when attempting to discern the meaning conveyed by words courts should avoid subjecting the words to an "over meticulous scrutiny": Random House v Abbott [1999] FCA 1538; (1999) 167 ALR 224 at 257. In Lewis v Daily Telegraph, Lord Reid observed (at 260) that the meaning attributed to words "must be a matter of impression" and Lord Morris (at 266) commented that it should not rest "upon any technical process of analysis or construction, nor upon a process of analysis or construction, nor upon a process of critical reading".

22 The manner and mode of publication is a material matter in determining what imputation is capable of being conveyed, a consideration of particular significance where the publication is in a transient form such as in a television or radio broadcast. In Amalgamated Television Services v Marsden (1998) 43 NSWLR 158, Hunt CJ at CL (with whom Mason P and Handley JA agreed), after referring to a number of the authorities, including Lewis v Daily Telegraph (supra) and Jones v Skelton (supra), said (at 165 - 6):

"All of these considerations, and more, apply to matter published in a transient form - and particularly in the electronic media. Whereas the reader of the written document has the opportunity to consider or to re-read the whole document at leisure, to check back on something which has gone before to see whether his or her recollection of it is correct, and in doing so to change the first impression of what message was being conveyed, the ordinary reasonable listener or viewer has no such opportunity: Gorton v Australian Broadcasting Corporation (1973) 1 ACTR 6 at 11; Brown v Australian Broadcasting Corporation (Hunt J, 4 May 1987, unreported) at 11. Although such a listener or viewer (like the reader of the written article) must be assumed to have heard and/or seen the whole of the relevant programme, he or she may not have devoted the same degree of concentration (particularly, I would say, where it is the radio) to each part of the programme as would otherwise have been given to the written article (Morosi v Broadcasting Station 2GB Pty Ltd [1980] 2 NSWLR 418(n) at 420), and may have missed the significance of the existence, earlier in the programme, of a qualification of a statement made later in the published material: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 413.

The trial judge in a transient publication case will therefore more readily leave it to the jury to decide whether an imputation affected by any of those circumstances, or any similar circumstances peculiar to such type of publication, was in fact conveyed, than he or she would in relation to a written document case: Brown v Australian Broadcasting Corporation (at 12-13)."

23 The Full Court of the Supreme Court of South Australia pointed out in Channel Seven Adelaide Pty Ltd v DJS [2006] SASC 10, that where the publication is in "transient" form, for example, a short television or radio broadcast, the ordinary reasonable viewer can be expected to engage in a greater degree of loose thinking, and this is all the more so where a transient publication is both short and sensational.

24 It is self-evident that the proper pleading of imputations in a defamation action is a matter of importance in ensuring a fair trial of the action. As Brennan CJ and McHugh J observed in Chakravarti v Adelaide Newspapers Ltd (1998) 193 CLR 519 at 531 - 532, where the plaintiff pleads a false innuendo, the plaintiff gives a shape and focus to the cause of action. But that is not to justify excessive zeal by defendants in pursuing the refinement of the pleaded imputations. In Buckeridge v Walter [2006] WASCA 22, the Court of Appeal (per Steytler P at [4], per Pullin JA at [23]) endorsed the comments of Kirby J in Favell v Queensland Newspapers Pty Ltd, to the effect that excessive refinement of pleading issues is to be discouraged and courts should discourage, or minimise, the impediment to a fair trial presented by the process of "trial by interlocutory ordeal", which is especially prevalent in defamation proceedings.

25 The defendant's objections were broadly in two parts, one as to the form of the imputations and the other as to the capacity of the words to convey the imputations pleaded or imputations of that nature. I will turn first to the question of form.

26 It is clear that the fact that the terms of an imputation are drawn from the words complained of is not of itself necessarily enough to establish that the pleaded imputation is beyond attack. It is the meaning alleged by the plaintiff to have been conveyed by the words, rather than the words themselves, which it is important to have precisely defined in the imputation: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678. What, therefore, must be clear from the pleading is what meaning the plaintiff contends was conveyed to a reasonable listener by the words complained of. An imputation must specify what the plaintiff claims was "the precise act or condition asserted of, or attributed to" the plaintiff: Monte v Mirror Newspapers Ltd (supra) and Taylor v Jecks (supra) at 319.

27 But as Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137, the requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. His Honour continued:

"Furthermore, whilst the principles relevant to the plaintiff's obligation [to 'specify' the act or condition which he claims was attributed to him] remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. ... The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter. A good example of the point just made is to be found in the decision of this Court in John Fairfax & Sons Ltd v Foord. Various imputations referring to particular kinds of corrupt conduct by a judge were held to have been proper imputations to leave to a jury. There was, however, also an imputation which simply asserted that the plaintiff was a corrupt judge. That imputation was said to have arisen from a newspaper billboard which read: 'Govt's war on corrupt judges.'

It was held that, in those circumstances, that also was a proper imputation to leave to the jury. Clarke JA, with whom Hope JA agreed, said (at 726):

'If the complaint is that the imputation as pleaded lacks clarity because the word "corrupt" is ambiguous then that deficiency flows naturally from the material published. ...' "

28 In the light of those principles, I do not consider that the imputation in par 7(b) is objectionable. It attributes a condition to the plaintiff which in my view is arguably defamatory of him. It is couched in terms of no less specificity than the words complained of. It is the case, as the defendant's counsel stressed, that it does not say by whom the suspicion is held, but nor do the words complained of. In the circumstances I do not consider that it is objectionable in form.

29 I do, however, accept the defendant's submission that the imputation in par 7(c) does not distil the defamatory sting. That is to say, it does not specify any precise act or condition which is attributed to the plaintiff. It is directed to the existence and nature of certain objective evidence, without specifying the act or condition that the plaintiff says a reasonable listener would thereby attribute to the plaintiff. I would strike out par 7(c).

30 It is therefore unnecessary to consider the defendant's further objection that the imputations do not differ in substance.

31 It was also argued on behalf of the defendant that, in any event, the words complained of were simply incapable of conveying to a reasonable listener any imputation to the effect of a reasonable suspicion of guilt or any like or more serious imputation. Counsel submitted that the defendant was at pains to refute any suggestion that he alleged the plaintiff had committed the murder and the defendant had said that the plaintiff was just one of a number of possible suspects. As the defendant made it clear that he made no accusation that the plaintiff had committed the murder, it followed that he could not reasonably have been understood to be saying that reasonable grounds existed to suspect the plaintiff of having committed the murder. The words complained of simply referred to the plaintiff as one of a number of possible suspects. In so submitting, counsel subjected the words to a textual analysis of a sort that would not be available to the average listener to the transient broadcast.

32 I should say that even on the basis of that analysis, I am not persuaded that the words are incapable of conveying the imputation pleaded in par 7(b) of the statement of claim. When regard is had to the transient nature of the publication, in my view it is clear that the words are capable of conveying the imputation. Of course, whether or not they do in fact convey the imputation is a matter for trial.

The claim for aggravated and exemplary damages

33 The defendant also objected to the plaintiff's claim for exemplary and aggravated damages. Those claims are pleaded at par 8A to par 8D of the amended statement of claim. Those pleas are as follows:

"8A The defendant did not have a genuine belief in the truth of the imputations referred to in paragraph 7 hereof at the time of publication.

PARTICULARS

The defendant's lack of a genuine belief in the truth of those imputations is to be inferred from the following passages in a letter dated 12 December 2005 from the defendant to the plaintiff's solicitor, a copy of which may be inspected by appointment:

'it is not and never was my function, or my intention, to accuse Mr Lawrence.'

'If your instructions are that I have attempted "to implicate Mr Lawrence in the murder", those instructions are misconceived.'

8B Despite the matter referred to in paragraph 8A hereof, the defendant published the Words in circumstances where he knew or ought to have known that the imputations referred to in paragraph 7 hereof would thereby be conveyed to a wide and extensive audience in Western Australia.

PARTICULARS

(i) The meanings referred to in paragraph 7 are the natural and ordinary meanings of the Words, and accordingly it is to be inferred that the defendant knew or ought to have known that those meanings would be conveyed by the publication of the Words.

(ii) The defendant knew or ought to have known that:

(A) the subject matter of the Words - namely the murder of Mrs Lawrence and the subsequent trials of Mr Mallard - was notorious in Western Australia, having been the result of extensive media coverage, examples of which will be discovered; and

(B) the Words were published in the course of a very popular radio program broadcast by the Australian Broadcasting Corporation which was, by reason of the matters referred to in sub-paragraph (A), likely to be of great interest to listeners.

8C Further, the defendant published the Words knowing, or with reckless indifference to, the consequences they would have on the standing and reputation of the plaintiff.

PARTICULRS

The Defendant's knowledge or reckless indifference is to be inferred from the fact that he published the Words, despite not having a genuine belief in the truth of the imputations they conveyed, in circumstances where it was self-evident that those imputations would have a devastating effect on the reputation and standing of the plaintiff.

8D further, despite demand, the defendant has refused to apologise for or retract the publication of the Words in circumstances where an apology was self-evidently called for, and has instead stood by the truth of the Words.

PARTICULARS

The plaintiff relies on the letter from his solicitor to the defendant dated 9 December 2005, and the defendant's response dated 12 December 2005, copies of each of which may be inspected by appointment.

9 By reason of the matters referred to in paragraphs 8A, 8B, 8C and 8D hereof, the defendant's conduct has been lacking in bona fides, unjustified and unreasonable in a manner which has aggravated the damage to the plaintiff, and accordingly the Words were published in circumstances entitling the plaintiff to an award of aggravated damages.

10 Further, by reason of the matters referred to in paragraphs 8A, 8B, 8C and 8D hereof, the defendant has acted in contumelious regard of the plaintiff's rights and accordingly the Words were published in circumstances entitling the plaintiff to an award of exemplary damages. "

The defendant's submissions on aggravated and exemplary damages

34 The defendant submitted that the matters set out in the particulars to par 8A could not support the allegation of a lack of genuine belief. They did not relate to the pleaded imputations, nor did they concern the question of the defendant's belief in those imputations. They were simply a rejection by the defendant of the proposition that he had accused the plaintiff of having committed the murder. Moreover, it was not pleaded how a lack of genuine belief had aggravated the plaintiff's damages.

35 It was submitted in relation to par 8B that the same objections apply. Moreover, it was not pleaded how the defendant's knowledge of the likely extent of the publication could, in itself, aggravate the plaintiff's damages. The mere fact that the defendant may have known about the likely extent of publication is not a matter that could establish a basis for aggravated or exemplary damages.

36 Counsel for the defendant submitted in relation to par 8C that the question of the defendant's belief in the truth of the imputations was immaterial. In any event, the allegation that the defendant published the words not having a genuine belief in the truth of the imputations was untenable because it was manifest that the defendant was at pains to rebut any suggestion that there was an accusation as to the plaintiff's guilt. Once again, it was argued that it was not pleaded how the matter is alleged to have aggravated the plaintiff's damages.

37 In relation to par 8D, the defendant's counsel argued that it was not pleaded how or why it was self-evident that an apology or retraction ought to have been provided. It was also embarrassing simply to plead that the plaintiff has stood by the truth of the words. Even if that were the case, the defendant is entitled to resist the plaintiff's claim in defamation upon the basis of a bona fide defence of truth. Accordingly, standing by the truth cannot be a basis for aggravated or exemplary damages. Moreover, it has again not been pleaded how the matter is alleged to have aggravated the damage.

The plaintiff's submissions on aggravated and exemplary damages

38 Counsel for the plaintiff submitted that the matters relied upon in par 8A to par 8D must be read cumulatively and, when so read, are capable of establishing that the defendant's conduct lacked bona fides, and was unjustifiable and unreasonable in a manner which aggravated the damage to the plaintiff. That is sufficient for the plea of aggravated damages in par 9 of the statement of claim. Similarly when read cumulatively, the facts pleaded are arguably capable of establishing the defendant has acted in contumelious disregard of the plaintiff's rights and therefore support the claim to exemplary damages in par 10.

39 Counsel said that the claim for aggravated exemplary damages depended essentially upon four material facts; namely, the defendant did not have a genuine belief in the truth of the imputations conveyed by the words; the defendant published the words in circumstances where he knew or ought to have known that those imputations would be conveyed and conveyed to a wide audience; the defendant published them knowing, or with reckless indifference to, the consequences they would have on the standing and reputation of the plaintiff; and the defendant refused to apologise or retract in circumstances where an apology was self-evidently called for and instead has stood by the truth of the words.

40 It was submitted in relation to par 8A that it was evident from the terms of the letter of 12 December 2005 that the defendant cannot have believed in the truth of the imputations conveyed by the matter complained of. They were inconsistent and irreconcilable. By the matter complained of, the defendant clearly implicated the plaintiff in the murder of his wife. By the subsequent letter refusing to apologise, the defendant said he had not attempted or intended to implicate the plaintiff. In any event, the question of whether or not the defendant had a genuine belief is a matter for trial.

41 It was submitted in relation to par 8B, that the medium by which the defendant chose to publish the words increased the subjective harm suffered by the plaintiff in circumstances where the plaintiff claimed to have no genuine belief in the truth of the imputations which his words conveyed.

42 It was submitted in relation to par 8C that the defendant's complaint essentially went to a denial that the imputations were capable of being conveyed by the words complained of. It was clear that the publication of defamatory words with actual or imputed knowledge of the effect they would have on the reputation of the plaintiff, or with reckless indifference of that effect, is capable of supporting a claim for aggravated or exemplary damages.

43 Counsel submitted in relation to par 8D, that a failure to apologise may support a claim for aggravated damages if it is in some way unjustifiable, improper or lacking in bona fides. Counsel argued that the matters raised by the defendant simply went to further and better particulars which could be requested. It was clear too, that a defendant who stands by the truth of his words, if those words are false, exposes himself to the risk of aggravated or exemplary damages: Sutcliffe v Pressdram Ltd [1991] 1 QB 153 at 184.

Are the claims for aggravated and exemplary damages objectionable?

44 There is a clear distinction between aggravated and exemplary damages. That distinction was described in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 by Windeyer J (at 149) as follows

"... 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: exemplary damages, on the other hand, are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence."

"[Aggravated damages] are, of course given by way of compensation for injury to the plaintiff, though frequently intangible, resulting from the circumstances and manner of the defendant's wrong-doing. On the other hand, exemplary damages are awarded ... to 'punish and deter' the wrong-doer though, in many cases, the same set of circumstances might well justify either an award of exemplary or aggravated damages."

46 In relation to aggravated damages, in Rookes v Barnard [1964] UKHL 1; [1964] AC 1129 Lord Devlin (at 1221) said that the motives and conduct of the defendant may be taken into account where they aggravate the injury done to the plaintiff. "There may be malevolence or spite or the manner of committing the wrong may be such as to injure the plaintiff's proper feelings, dignity and pride. These are matters which the jury can take into account in assessing the appropriate compensation."

47 In David Syme & Co Ltd v Mather [1977] VicRp 58; [1977] VR 516, Lush J described the circumstances in which aggravated damages may be awarded in the following way:

"... aggravated compensatory damages may be awarded in defamation if the defendant's conduct aggravates the subjective hurt to the plaintiff. They cannot be awarded merely for reasons of indignation felt by the jury, but only if the evidence points to the conclusion that the blow to the plaintiff's pride, however it may be called, has been or must have been worsened by what was done."

48 On the other hand, to justify an award of exemplary damages "there must be evidence on which the jury could find that there, was, at least, a 'conscious wrong-doing in contumelious disregard of another's rights' ": Uren v John Fairfax & Sons Pty Ltd (supra). Exemplary damages may be awarded where the defendant's conduct "is wanton, as where it discloses fraud, malice, violence, cruelty, insolence or the like, or as it is sometimes put, where he acts in contumelious disregard of the plaintiff's rights": Coloca v BP Australia Ltd [1992] VicRp 74; [1992] 2 VR 441 at 448.

49 In Pollack v Volpato [1973] 1 NSWLR 653, Hutley JA said (at 657):

"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."

50 Although, in Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996, Steytler J (as his Honour then was) observed 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 make it desirable for the court to punish the wrongdoer.

51 Unless the matters relied upon for aggravated and exemplary damages are identical, the plaintiff is required to specify the matters relied upon for each claim: Interval Resort Networks (Australasia) Pty Ltd v West Australian Newspapers Ltd [1999] WASC 2 at [153]. It is plain that in the present case the same matters are relied upon. The defendant, however, says that the matters pleaded are not sufficient to make out a claim on either basis.

52 It is, I think, clear that the pleas in par 8A to par 8D are to be read cumulatively, rather than separately, in support of the claims for aggravated and exemplary damages and the matter was argued on that basis.

53 I do not accept that the matters pleaded are incapable of supporting a claim for aggravated damages. The claim for exemplary damages raises a separate issue to which I will turn shortly.

54 Whether the particulars of par 8A are sufficient to establish that the defendant lacked a genuine belief that, as pleaded in par 7(b), the plaintiff was reasonably suspected on the basis of objective evidence of having murdered his wife, is a matter that I consider is arguable and should be left for trial. The plea is par 8A is relied upon in par 8B.

55 The plea in par 8B that the defendant published an imputation that he knew or ought to have known would be conveyed by his words, in circumstances where (as pleaded in par 8A) he did not have a genuine belief in the truth of that imputation, is in my view arguably capable of supporting a claim for aggravated damages. In the circumstances alleged, the fact, as pleaded in par 8B, that the words were published by the defendant on a popular radio programme, and therefore to a wide and extensive audience, is arguably capable of supporting a claim for aggravated damages. I should say that the plea in par 8B(i) that the defendant knew or ought to have known that the imputation would be conveyed by the words complained of might more appropriately be pleaded as a material fact rather than a particular, but it does not seem to me to cause such difficulty as would warrant striking out the plea.

56 In my view, the allegation in par 8C that the defendant published words conveying a defamatory imputation in circumstances where the defendant knew, or ought to have known, that that imputation would be conveyed and where he was indifferent to the effect it would have on the plaintiff's reputation, is capable of supporting a claim for aggravated damages. (See Gatley on Libel and Slander, op cit, par 9.16.)

57 I would also decline to strike out par 8D at this stage. In Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, the High Court commented that while it was difficult to see how the "mere absence of an apology" can aggravate damages, it remains arguable that the absence of an apology might, when coupled with other circumstances, do so. See also Clark v Ainsworth (1996) 40 NSWLR 463 at 468 - 469. In my view, a failure to apologise in the circumstances of this case might arguably support a claim for aggravated damages. Any difficulty that might be caused by the plea that an apology "was self-evidently called for" should, at least in the first instance, be dealt with by a request for particulars.

58 I do not, therefore, accept the defendant's submission that the matters pleaded are not material to a claim for aggravated damages. I consider that the matters alleged, if made out, are capable of establishing an entitlement to aggravated damages. If the defendant requires further particularisation of any of the matters relied upon, that should be dealt with by a request for further and better particulars.

59 I also do not consider that it is necessary for the plaintiff to plead in what respect the matters are alleged have aggravated the damage.

60 The claim for exemplary damages, however, is in my view defective. I consider that an arguable claim for exemplary damages is made out so far as the plaintiff pleads that the defendant published the words in circumstances where he knew that they would convey the alleged imputation. I do not, however, consider that the claim is arguably made out so far as the plaintiff pleads that the plaintiff "ought to have known" that the alleged imputation would be conveyed. At the least, it is embarrassing.

61 A claim for exemplary damages depends upon "conscious wrongdoing". Recklessness is sufficient: Broome v Cassell & Co Ltd [1972] UKHL 3; [1972] AC 1027 at 1079, 1094, 1130, 1133. But a plea of negligence is insufficient: Maxwell v Pressdram [1987] 1 WLR 298. It is, in my view, one thing to say that the defendant published words which he knew would convey the imputation complained of; it is another thing to say simply that when he published them he "ought to have known" that they would convey the imputation. A plea that the defendant published the words when he "ought to have known" that they would convey the imputation would not ordinarily be understood to refer to a reckless disregard as to the meaning the words would convey. If it is intended to allege that the defendant was reckless, that allegation must be clearly made. Absent such an allegation, the plea is not, in my view, capable of making out conscious wrongdoing. I therefore consider the plea, so far as it relies upon the allegation that the defendant "ought to have known" that the alleged imputation would be conveyed, is objectionable.

62 Accordingly, in my view, the matters pleaded are capable of founding a claim for aggravated damages but the claim for exemplary damages is defective. In the circumstances, it seems to me the appropriate course is simply to strike out the claim for exemplary damages with leave to replead.

63 I would therefore strike out par 7(c) and the claim for exemplary damages, but otherwise would dismiss the application. I would give the plaintiff leave to further amend the statement of claim, but any amendments should be made within a time to be fixed. I will hear the parties on that and on the question of costs.

Lawrence v McCusker [2006] WASC 173

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