LEIGHTON -v- GARNHAM [2012] WASC 314 (4 September 2012)

LEIGHTON -v- GARNHAM [2012] WASC 314 (4 September 2012) - WASC 2012 case summary — Zoe

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24 The first article is entitled '"Aged care" issue to deceive residents'. The aged care issue refers to whether the property at Gavour and Welshpool Roads should be rezoned and the proposed development should proceed. The residents refers to the residents of the Shire of Kalamunda. The title conveys that somebody has used the aged care issue to deceive the residents. The opening paragraph of the article refers to a letter sent out to Kalamunda Shire residents by excouncillor Giardina. His letter urged residents to support the rezoning and redevelopment proposal. The article says that attached to Mr Giardina's letter were a series of dot points and many of the dot points were contradictory and not true. The article then sets out three of the dot points and why each of them is contradictory or not true. Thus far the article refers only to Mr Giardina and insofar as criticism is being made the ordinary fair minded reader would understand that it was being directed at Mr Giardina. However, the article then goes on to refer to the development proposal and it having been twice before rejected. The article says that the elderly have been led to believe that the development is about them and aged care facilities but if you read the detailed documentation regarding the proposal it is clear that there is more to the development than meets the eye. It is arguable that the documentation would be understood by a reader to refer to documents put forward by the developer in support of the development application. The article then refers to a letter from the principal solicitor at the Environmental Defenders Office, which says that the documentation submitted with the rezoning application gives the impression that Council is being asked to approve a specific proposal, but the legal effect of approving the rezoning application would be to change the zoning and under the new zoning the only constraint affecting residential development would be the requirement for development approval and that dwellings must be occupied by at least one person over 55. The article states that the developer has no obligation to make these properties available to the elderly, he would be able to sell them to whoever he likes as long as one person occupying the house is over 55. The article concludes:

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The pleader's task is to capture the essence of the specific matters imputed in relation to the plaintiff. Necessarily there will be questions of degree and 'if a problem arises, the solution will usually be found in considerations of practical justice rather than philology' (per Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corp (1990) 21 NSWLR 135 at 137). In this as in other areas, pleadings serve the ends of justice: they must not be permitted to assume an independent selfreferential function. The pleaded imputation remains 'the statement which, as the plaintiff alleges, the publication gives the reader or viewer to understand' (per Mahoney JA in Singleton v French (1986) 5 NSWLR 425 at 428). It is not a straitjacket, although the rules of procedural fairness place limits upon judge and jury's capacity to enlarge the issues.

A plaintiff's pleaded imputations set the scene for the contest which follows. The defendant's pleadings will respond to the asserted causes of action. The jury will have to decide whether the matter complained of carries the imputation and, if so, whether it is defamatory or the plaintiff. Defences as to truth, contextual truth and comment are also responsive to the pleaded imputations (Defamation Act, s15(2), s16(2), New South Wales Aboriginal Land Council v Perkins (1998) 45 NSWLR 340). But even here, the plaintiff will be bound by the substance, as distinct from the precise words of the pleaded imputation (see Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 at 771).

The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture). The imputation will often be implicit in the text (see generally Petritsis v Hellenic Herald Pty Ltd [1978] 2 NSWLR 174 at 195-196).

These considerations point to the broader issue of principle. Words, a fortiori words not found in the text, are necessarily to be read in context. This is a basic tenet of literary and legal construction (Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449 at 455, Minister for Immigration v Eshetu (1999) 197 CLR 611 at 534). Holmes J reminds us that:

A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used: Towne v Eisner 254 US 418, 425 (1918).

Context may clarify or intensify the sting of a facially benign (pleaded) imputation. The converse is also true (see Fleming, The Law of Torts 7th ed p588) [18] [22].

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61 It is embarrassing to plead the publication of the advertisement in the Kalamunda Reporter newspaper and the publication of the advertisement together with editorial comment on a website in the same paragraph of the statement of claim. Order 20 r 7(2) of the Rules of the Supreme Court 1971 (WA) provides that each pleading must, if necessary, be divided into paragraphs numbered consecutively, each allegation being so far as convenient contained in a separate paragraph. The publication of the advertisement in the Kalamunda Reporter and the publication of the advertisement, together with editorial comment on the website, are separate allegations and should be pleaded in separate paragraphs. The defendants may wish to plead differently in relation to the publication in the newspaper than the publication on the website. The plaintiff is not named in the advertisement. Whether or not readers of the advertisement would have identified the plaintiff as the developer referred to in the advertisement might be affected by whether or not they had, or may be inferred to have, read other pages on the website which identified the plaintiff as the developer. The inference that readers of the advertisement read the pages on the website identifying the plaintiff as the developer might be more readily drawn in the case of readers of the advertisement on the website than readers of the advertisement in the newspaper. Whether the plaintiff is identified as the developer might also be affected by the heading 'response to Ross Leighton's letter to Planning Minister John Day' which appears on the website but not in the newspaper. The meaning of the advertisement published on the website might be affected by the words preceding it on the website but not in the newspaper. Those words include 'response to Ross Leighton's letter to Planning Minister John Day' and 'we felt it important to clear up the misinformation that has spread throughout the Shire of Kalamunda on this issue' which do not appear in the newspaper. These differences between the publication of the advertisement in the newspaper and on the website compound the confusion which arises from pleading the two separate publications in one paragraph of the statement of claim.

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