Supreme Court of WA|2001-02-12|Before: Mr P, Hasluck J

Marley's Transport Pty Ltd & Anor v West Australian Newspapers Ltd & Anor [2001] WASC 31 (12 February 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MARLEY'S TRANSPORT PTY LTD & ANOR -v- WEST AUSTRALIAN NEWSPAPERS LTD & ANOR [2001] WASC 31

BETWEEN : MARLEY'S TRANSPORT PTY LTD (ACN 009 401 861)

Defamation - Leave to amend claim - Issues concerning identification of plaintiffs - Sufficiency of imputations plea - Aggravated and exemplary damages

Australian Consolidated Press v Uren [1966] HCA 37; (1966) 117 CLR 185

Bik v Mirror Newspapers Ltd (1979) 2 NSWLR 679

City-County Helicopters v United Telecasters [1979] ACLD 581

Emerson v Walker & Ors [1999] WASC 265

Gardiner v Ray [1999] WASC 140

Hayward v Thompson [1982] QB 47

Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Hope Technical Developments v BBC (1995), unreported; LTA 93/6587/ECA

Loughans v Odhams Press Ltd [1963] 1 QB 299

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Murphy v Plasterers Society [1949] SASR 98

Mycroft v Sleight (1821) 90 LJKB 883

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

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

Shah v Akram (1981) 79 LSGaz 814

South Hetton Coal Co Ltd v North Eastern News Association Ltd [1894] 1 QB 133

Vitale & Ors v Bednall & Anor [2000] WASC 207

1 HASLUCK J: The plaintiffs advance a claim in defamation arising out of an article printed and published in The West Australian Newspaper on 5 June 1999. A writ of summons was issued by the plaintiffs on 17 February 2000 bearing an indorsement of claim and a statement of claim was filed shortly afterwards. The plaintiffs later filed a minute of proposed amended statement of claim dated 28 April 2000.

2 The plaintiffs have now brought on for hearing a chamber summons whereby leave is sought to amend the statement of claim in accordance with a minute of proposed reamended statement of claim. The most recent version of the document in question is a minute dated 6 September 2000. I am obliged to note, however, that at the hearing before me a memorandum was handed up by counsel for the plaintiffs which sought to effect certain further amendments to par 7(b) and par 8(a) to (d) of the minute the subject of the application. For ease of reference, I will call the minute dated 6 September 2000, as varied by the memorandum, the proposed statement of claim.

3 The defendants opposed the plaintiffs' application for leave to amend in terms of the proposed statement of claim. Counsel for the defendants recognised that by O 21 r 5 of the Supreme Court Rules the Court may allow any party to amend his pleading. Counsel for both parties recognised that the Court will not usually grant leave to amend a pleading into a form which ought to be struck out: Seaman, Civil Procedure at par 21.5.4. Accordingly, many of the submissions at the hearing before me were directed to issues of the kind usually arising under O 20 r 19 in regard to defamation claims, that is to say, whether the plaintiffs' pleading disclosed a reasonable cause of action or whether it might prejudice, embarrass or delay the fair trial of the action.

4 For the purposes of a striking-out application, the Court generally proceeds upon the basis that the facts alleged in the statement of claim are accepted as true and I will proceed accordingly in dealing with the application presently before me.

5 The proposed statement of claim indicated that the first plaintiff carries on business as a road haulier in Western Australia and is accredited as Truck Safe pursuant to an accreditation scheme established by the Australian Trucking Association. The second plaintiff is the managing director of the first plaintiff and a member of the Western Australian Road Transport Association.

6 The words complained of are set out in par 5 of the claim. They are in the form of a news report that WA truck drivers are swallowing, snorting and smoking a range of legal and illicit drugs to stay awake on long hauls. Reference is made to academic studies bearing upon this issue and the report mentions that almost 240 truck drivers were interviewed for the study, which also looked at driver fatigue.

7 The proposed statement of claim pleads that the article was accompanied by a photograph of a truck. Superimposed on the picture are depictions of the type of receptacles used to store pharmaceutical products, including drugs and illicit drugs of the nature referred to in the article. It is pleaded that in the photograph the truck is painted in red and white livery, has the letters MD on its numberplate and has the name "Marleys" on its sun visor.

8 The plaintiffs plead in par 6 that the words complained of were reasonably understood to refer to the first plaintiff by reason of the matters appearing in the photograph and some additional facts which were said to have been widely publicised in the Western Australian community, that is to say, that on or about 3 April 1999 at a community fundraising event in Merredin one of the first plaintiff's trucks broke the world record for the longest road train pull and this event was widely reported. Some related matters are also referred to as a basis for contending that the first plaintiff was identified. It is pleaded in par 6A that the words complained of were reasonably understood to refer to the second plaintiff by reason of the matters just mentioned and by reason that it was known to employees and clients of the first plaintiff that the second plaintiff manages the first plaintiff.

9 The plaintiffs plead in par 7 that in their ordinary and natural meaning the words complained of bore certain specified meanings that are set out in par 7(a) to (f) in the form of precisely formulated imputations. I will return to the details of these imputations in due course.

10 The plaintiffs plead in par 8 that further and by way of innuendo the words complained of and the photograph were understood to bear the certain meanings that are set out in the form of precisely formulated imputations. I will return to the details of these imputations in due course. I note that in this paragraph also the plaintiffs provide particulars of facts relied on to support the innuendo, and in that regard reference is made to it being a matter of public record that accreditation to Truck Safe requires that drivers of the accredited entry be drug-free whilst driving.

11 The plaintiffs then go on to say that the defendants' conduct in publishing the words complained of and the photograph has been in contumelious disregard of the plaintiffs' rights, with the result that a claim is advanced for aggravated and exemplary damages against the defendants. The matters pleaded on support of these claims for damages are set out at length in par 10 of the proposed statement of claim and include allegations that the defendants published the matter complained of in the knowledge or with the means of knowledge that the imputations were false or with reckless disregard as to whether or not they were false. Reference is also made to the defendants' alleged refusal to apologise to the plaintiffs in circumstances where an apology was called for.

12 Let me now turn to the relevant principles of law.

13 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community. The first question to be addressed upon a striking-out application will often be 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.

14 It is well accepted that imputations will be struck out at this stage of the proceedings, if they are untenable or manifestly groundless: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319 and Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675. Further, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff was charged and should not be ambiguous or contain irrelevant matter: Taylor v Jecks at 316 - 319.

15 Whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law. The test is whether, under the circumstances in which the writing was published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense. See Jones v Skelton [1963] 1 WLR 1362 at 1370 - 71 and Smith v Littlemore (1996) 15 WAR 289 at 294 - 295.

16 In deciding whether or not 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 and 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: See Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 - 259 and Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7. An imputation should represent the final distillation of the alleged defamatory meaning: See Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 15.

17 In the present case, the plaintiffs allege that the words complained or are defamatory in their natural and ordinary meanings and in that regard, as I have noted, the imputation said to be reflected in the words are pleaded in par 7. The plaintiffs also say that further and by way of innuendo the words complained of contain certain meanings which are said to be defamatory of the plaintiffs.

18 The meaning intended by the publisher is irrelevant for the purpose of construing the words. In regard to innuendos, the law of defamation recognises that ordinary words may on occasions bear some special meaning other than their natural and ordinary meaning because of some extrinsic facts or circumstances. Where the defamatory meaning only arises because of facts which are known to the recipients, there is said to be an innuendo. This has two principal consequences. First, the plaintiff must plead the special meaning he contends the words have and prove that the facts upon which this meaning is based were known to at least one of the persons to whom the words were published. Second, the meaning resulting from those facts gives rise to a cause of action separate from that (if any) arising from the words in their natural and ordinary meaning because it is an extended meaning not present in the words themselves: Gatley on Libel and Slander (9th ed) par 3.16.

19 Where identification is an issue, the matter can sometimes be decided by construing the words themselves in their context. More often, however, the plaintiff will be seeking to show that the words would be understood to refer to him because of some facts or circumstances which are extrinsic to the words themselves. In these cases, the plaintiff is required to plead and prove the extrinsic facts on which he relies to establish identification and, if these facts are proved, the question becomes: would reasonable persons knowing these facts, or some of them, reasonably believe the words referred to the plaintiff: Duncan and Neil on Defamation (2nd ed) par 6.03.

20 Henry v TVW Enterprises Ltd (1990) 3 WAR 474 was a case in which there was no direct identification of the plaintiff. In that case, Channel Seven in Perth broadcast a programme on a dentist who was alleged to have hepatitis. The programme included file footage showing a portion of the plaintiff's surgery and glimpses of the plaintiff's gloved hands at work, this being extracted from an earlier programme concerning the plaintiff's use of the so-called Branemark technique. The plaintiff was able to recover damages upon the basis of evidence from viewers who had special knowledge of extrinsic facts which permitted them to identify the plaintiff as the dentist apparently depicted on the television programme. This left an impression that the plaintiff was infected with a contagious disease and had exposed his patients to the risk of contracting the disease.

21 Counsel for the defendant submitted that the article complained of, when read together with the photograph, was incapable of conveying any defamatory imputation of and concerning the plaintiffs. Counsel contended that leave to amend the claim in the manner proposed should be refused because the proposed statement of claim failed to disclose a reasonable cause of action. The case being advanced by the plaintiffs was untenable or manifestly groundless. This attack upon the statement of claim as a whole embraced two principal points, being, first, a submission that the plaintiffs were not identified as the subject of the article and, second, that the article would not be regarded by a reasonable reader as an attack upon any particular trucking company.

22 As to the first of these matters, counsel for the defendants pointed out that the plaintiffs are not named in the article. The photograph accompanying the article the subject of the action is a montage of the truck and a number of pharmaceutical products and packets.

23 The plaintiffs pleaded that the article and photograph were reasonably understood to refer to the plaintiff by reason of the fact that the truck was painted in red and white livery, had the letters MD on its numberplate and had the name "Marley's" on its sun visor The first plaintiff's allegation is that people with special knowledge identified the first plaintiff after looking at the photograph and that the article and photograph, read together, defamed the plaintiff to those with special knowledge of the plaintiff's circumstances upon the basis set out in the pleadings. As to the second plaintiff, counsel argued that there were people possessing special knowledge, namely, that the second plaintiff managed the first plaintiff and had been a prominent campaigner for drug-free operation in the road transport industry.

24 I consider that the various facts and matters relied upon by the plaintiff and especially the presence of the word "Marley's" on the sun visor establish a sufficient connection between the words complained of and the plea in the statement of claim as to identification. I have already noted from my review of the decided cases that the intention of the author of the words complained of is not material and that, as in Henry v TWV Enterprises Ltd (supra), a plaintiff can be identified inadvertently as the object of a particular piece of criticism or discussion. Accordingly, I am not satisfied that the statement of claim should be struck out on this ground.

25 Counsel for the defendants submitted further, and in any event, that the article was couched in general terms, with the result that a reasonable reader would characterise the article as being about the use of drugs (illicit or otherwise) in the trucking industry and without reference being made to any particular trucking company. In other words, it was clear from the tenor of the article that no particular trucking company was being targeted or subjected to criticism. Accordingly, even if some readers, possessed of special knowledge, identified the truck in the photograph as belonging to the first plaintiff, such readers would reasonably conclude that the image did not have any specific significance. The article was about the trucking industry in general.

26 I have already noted that an author's intention is not relevant. In my view, it was open to a reasonable reader to conclude that the photograph accompanying the article was not simply an illustration of a general point, but was a manifestation of the problem being addressed by the article, namely, the misuse of drugs in the trucking industry. I am not persuaded that the plaintiffs' plea should be characterised as untenable or manifestly groundless. Accordingly, I am not prepared to strike out the statement of claim upon the basis that it is not capable of conveying meanings defamatory of the plaintiffs.

27 Counsel for the defendants then raised a number of specific objections concerning the various imputations set out in par 7 of the claim, being imputations allegedly to be found in the words complained of in their natural and ordinary meaning.

28 In par 7(a) the words were said to mean that the first plaintiff has failed to address the dangers arising from irresponsible drug-taking amongst its drivers to stay awake whilst driving.

29 Counsel for the defendant submitted that an imputation to this effect was not reasonably capable of being conveyed concerning the first plaintiff for the reasons previously advanced. Further, counsel submitted, an imputation of this kind required a reader to draw an inference upon an inference. The reader had to conclude that the first plaintiff's drivers were in the 13 per cent of drivers taking illicit drugs. Counsel said further that the imputation did not identify any act or condition on the part of the first plaintiff and the term "failed to address" was vague and embarrassing.

30 I have already noted that, in my view, the plaintiffs were arguably identified and in a way that arguably was not merely illustrative of points being made in the course of a general debate about the state of the trucking industry.

31 It will be useful at this point to refer briefly to Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd, unreported; FCt SCt of WA; Library No 950417 9 August 1995. In that case, the plaintiffs were marketing Aqua Vital spring water which is sold in bottles labelled and advertised as spring water. The words complained of suggested that the plaintiffs had falsely labelled and advertised their bottled water as spring water, when it was not spring water. The pleaded imputations included a plea that the words complained of in their natural and ordinary meaning meant that the plaintiffs had failed to take adequate steps to ensure the bottled water they sold was fit for human consumption and that they had sold bottled water which was likely to endanger the health of consumers. In the course of reviewing various authorities bearing upon the matters in issue, Malcolm CJ noted that it is not necessarily defamatory to disparage a trader's goods. On the other hand, the words used, though directly disparaging goods may also impute such carelessness, misconduct, or want of skill in the conduct of his business by a trader as to justify an action of libel. A pleading may be regarded as defective if it does not clearly identify "the sting" of the words complained of. Language in disparagement of goods will be defamatory where it conveys a defamatory imputation bearing upon the character of the plaintiff personally.

32 In my view, the imputation pleaded in par 7(a) of the claim is arguably capable of arising from the words complained of and the notion that the first plaintiff has failed to address the dangers arising from irresponsible drug-taking indicates that the first plaintiff is involved in some personal misconduct. The concept of failing to address denotes that the plaintiff has supposedly failed to take remedial action and is therefore personally culpable. I am not persuaded that in this context such a term is vague and embarrassing and am not satisfied that the plea in this paragraph should be struck out.

33 I add to the comments I have just made a brief observation concerning the defendants' suggestion that the imputation imports an inference upon an inference, that is to say, that the reader must first infer that the article concerns the first plaintiff's drivers and then go on to infer that the first plaintiff's drivers form part of the comparatively small percentage of drivers overall involved in the misconduct. I have already noted in reviewing the decided cases that one cannot assume the ordinary reasonable reader will make fine, analytical distinctions of this kind. In my view, if the indicia on the truck depicted in the photograph are arguably sufficient to link the plaintiff's business to the concerns being explored in the article, then it would be open to the ordinary reader to conclude that the first plaintiff's drivers are involved in the misconduct. In other words, the truck depicted forms part of the percentage comprising the problem in need of investigation. Accordingly, I am not persuaded that the plea in its present form should be struck out on this ground as failing to disclose a reasonable cause of action or as being embarrassing.

34 I digress briefly to note that the various criticisms of the statement of claim I have dealt with to this point were repeated by counsel for the first defendant in regard to other imputations in the statement of claim. Accordingly, before proceeding to address the further issues raised at the hearing, it will be useful, for ease of reference, to provide some abbreviated descriptions of my reasoning thus far.

35 Put shortly, the defendants submitted that as the plaintiffs were not named or explicitly identified in the article, there is an insufficient reference to, or identification of, the plaintiffs, with the result that the words complained of are not capable of conveying a meaning defamatory of the plaintiffs. This line of argument was applied to the statement of claim as a whole and applies equally to each imputation. I will call this the "insufficient reference to plaintiffs' issue". It follows from earlier discussion that, in my view, the presence of certain indicia on the truck depicted in the photograph are arguably sufficient to link the first plaintiff to the words complained of. Accordingly, unless otherwise indicated, a finding to this effect should be taken as implicit in any subsequent ruling against the defendants in regard to the insufficient reference to plaintiffs' issue.

36 The defendants submitted that the ordinary reasonable reader would simply conclude that the article contained some general criticisms of the trucking industry, with the result that the reputation of the plaintiffs would not be affected, even if the indicia in the photograph could be regarded as a sufficient reference to the first plaintiff's business. I will call this the "criticism of trucking industry issue". Unless otherwise indicated, a ruling against the defendants in regard to this issue imports the reasoning I have previously outlined in regard to this matter.

37 I will adopt the same practice in regard to the inference upon an inference issue and in regard to the sting of the libel or Aqua Vital issue. In other words, as to the latter issue, a ruling against the defendants' submissions imports a finding that, in my view, the pleaded imputation denotes not simply a concern about the quality of the first plaintiff's services, but suggests a degree of personal default or culpability by way of knowledge of the default or recklessness in respect of the same which is arguably sufficient to damage the plaintiffs' reputation.

38 The imputation pleaded in the revised version of par 7(b) of the statement of claim is that the first plaintiff's road transportation service is unsafe because, to the first plaintiff's knowledge, there is irresponsible drug-taking whilst driving amongst the first plaintiff's drivers.

39 As to the criticisms of this plea, I rule against the defendants in respect of the insufficient reference to plaintiffs' issue and in respect of the criticism of trucking industry issue. To my mind, the revision of the imputation to include a reference to the first plaintiff's knowledge is sufficient to overcome the objection that the plaintiffs have failed to identify the precise sting of the material complained of. Accordingly, I rule against the defendants on the Aqua Vital issue.

40 I consider that the concept of the plaintiff having knowledge can arguably be said to arise from the words complained of because it would be open to an ordinary reasonable reader to conclude that the operator of a trucking business is likely to have systems or practices in place which will provide him with some degree of knowledge as to the manner in which his drivers perform their duties. I am not persuaded that this plea is repetitive of the imputation in par 7(a), because in this case a fresh thought is introduced that the trucking service being provided by the first plaintiff is unsafe.

41 The imputation in par 7(c) is that the first plaintiff conducts its road transportation business in an unsafe manner in that its drivers drive for periods of time such that some of them, in order to stay awake whilst driving, take drugs irresponsibly.

42 As to the criticisms of this plea, I rule against the defendants in regard to the insufficient reference to plaintiffs' issue and in regard to the criticism of trucking industry issue. To my mind, use of the word "conducts" is sufficient to indicate that the first plaintiff is allegedly assuming a personal responsibility for the service offered. Accordingly, I rule against the defendants in respect of the Aqua Vital issue. I rule against the defendants in respect of the inference upon an inference issue. I am not persuaded that the imputation is repetitive of the preceding imputation.

43 The imputation in par 7(d) is that the first plaintiff is negligent in the conduct of its business in that it is unaware of the extent and nature of drug-taking whilst driving amongst its drivers.

44 As to this plea, I rule against the defendants in respect of the insufficient reference to plaintiffs' issue, the criticism of trucking industry issue and the inference upon an inference issue.

45 The imputation pleaded in par 7(e) was that the first plaintiff is aware that its drivers are not drug-free whilst driving and exposes its clients to the risk associated therewith.

46 I rule against the defendants in respect of the insufficient reference to plaintiffs' issue, the criticism of trucking industry issue, the inference upon an inference issue and the Aqua Vital issue. I am not persuaded that the imputation is repetitive because a new element is introduced of the clients of the business being exposed to risks.

47 The imputation pleaded in par 7(f) is that the first plaintiff is aware that its drivers are not drug-free while driving and exposes other road users to the risks associated therewith.

48 In regard to this matter, I repeat the observations I have just made concerning par 7(e), save that in this case, as to repetition, the new thought is the reference to road users being exposed to risks.

49 Paragraph 8 presents the plaintiffs' plea that further and by way of innuendo, the article and the photograph were understood to convey certain meanings defamatory of the first plaintiff.

50 Particulars of facts relied on to support the innuendo include, in respect of the first plaintiff, a plea that accreditation to Truck Safe is a matter of public record and that such accreditation requires drivers to be drug-free whilst driving. Further, the plaintiffs say that the accreditation upon this basis was known to employees and/or clients of the first plaintiff and/or was general knowledge in the road transport industry in Western Australia. These extrinsic facts are repeated as to the second plaintiff. Further, the fact that the second plaintiff manages the first plaintiff is alleged to be known to employees and/or clients of the first plaintiff and in the road transport industry. It is apparent from the defendants' written submissions that there is no challenge to the adequacy of the extrinsic facts plea.

51 The imputation pleaded in par 8(a) is that the first plaintiff has knowingly misled its clients and the road transport industry and the Australian Transport Association in Western Australia by holding out that its drivers are drug-free while driving when this is not the case.

52 The challenge to this imputation and the following imputations was confined to the issues I have already identified in earlier discussion and it will therefore be sufficient to deal with the matters in issue collectively. I note, in overview, that in the following imputations pleaded in par 8(b) to par 8(h) the plaintiffs refer to the following matters, namely, the first plaintiff negligently misled its clients and other parties (8(b)); the second plaintiff knowingly misled its clients and other parties (8(c)); the second plaintiff negligently misled its clients and other parties (8(d)); the second plaintiff failed to address the dangers arising from irresponsible drug-taking (8(e)); the second plaintiff is aware that the first plaintiff's drivers are not drug-free (8(f)); the second plaintiff is hypocritical in not having put into practice his public commitment to drug-free driving (8(g)); the second plaintiff's public commitment to drug-free driving is not genuine.

53 In regard to these various imputations, I rule against the defendants in respect of the insufficient reference to plaintiffs' issue, the criticism of trucking industry issue, the inference upon an inference issue and the Aqua Vital issue. In each case, for the reasons previously given, I am satisfied that the imputations pleaded are capable of arising from the words complained of. I am not persuaded that the imputations are repetitive.

54 The plaintiffs plead in par 9 that by reason of the publication they have been injured in their reputation and have suffered loss and damage. They plead, additionally, in par 10 to par 13 that by reason of the facts and matters referred to in those paragraphs, especially the particular matters set out in par 10, that they are entitled to aggravated and exemplary damages against the defendants.

55 The defendants have challenged the adequacy of the particulars set out in par 10 in subpars (a) to (g) in support of the claim for aggravated or exemplary damages. It will therefore be useful to look briefly at the principles bearing upon these two categories of damages.

56 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, namely, moral retribution or deterrence: Uren v John Fairfax & Sons Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149.

57 There is a wide range of circumstances which might warrant an award of aggravated damages, encompassing both conduct in the publication of the defamatory material and conduct thereafter. Damages will be aggravated only by conduct which is unjustifiable, improper or lacking in bona fides. In some circumstances, a failure to apologise may be material, but such a failure does not, of itself, necessarily justify an award of aggravated damages.

58 Where exemplary damages are claimed, it is usually necessary to demonstrate a conscious wrongdoing in contumelious disregard of another's rights or to show that a sensational story was published essentially to attract an audience: Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71. Although the same facts may provide the basis for an award of both aggravated and exemplary damages, it is appropriate to plead the claims arising from the same set of facts in separate paragraphs.

59 I note that in Henry v TVW Enterprises Ltd (supra), the aggrieved dentist recovered exemplary damages in addition to an award of general damages upon the basis that the editor of the television programme in question had acted recklessly in including footage when he appreciated, or ought to have appreciated, that some people might identify the plaintiff. It is significant that in that case, at 484, Seaman J was prepared to accept that the presenter of the programme and members of his team had not necessarily behaved with any express malice or callous or cruel motive. Nonetheless, the learned Judge considered that punitive damages should be awarded, with a view to deterring any future reckless use of file footage having the potential to damage the reputations of innocent people.

60 In the present case, in par 10, the plaintiffs refer to various circumstances in support of the claims for aggravated and exemplary damages. The plaintiffs say that drug-taking by drivers to stay awake is a serious road safety issue (10(a)); the first plaintiff by its accreditation has held itself out as conducting its business in a responsible manner (10(b) and 10(c)); the defendants published the article and photograph in the knowledge, or with the means of knowledge, that the imputations were false or with reckless disregard as to whether they were false (10(d)); the defendants took the risk of identification of the plaintiffs with the matters referred to in the words complained of (10(e)); the defendants believed that the prospect of advantage to them by the publication outweighed the prospect of loss (10(f)) and the defendants have denied that the words are defamatory and have refused to apologise (10(g)).

61 Counsel for the defendants submits that subpars (a) to (g) inclusive are not proper particulars in support of claims for aggravated or exemplary damages. It follows from my review of the decided cases that, in essence, the question for the consideration of the Court is whether the act complained of was aggravated by the manner in which the act was done and whether there are particular circumstances which might warrant an award of aggravated damages or point to a contumelious disregard of the plaintiffs' rights.

62 It will be a matter for evidence at trial as to the public's knowledge of the accreditation scheme and to what extent the presence of such a scheme had a bearing upon the manner in which the plaintiffs conducted their business and upon their reputation. However, for the time being, in the context of what is, in effect, a striking-out application, I must assume that the facts relied upon by the plaintiffs can be established by evidence, and upon that basis I consider that the various matters detailed in par 10 arguably provide a sufficient basis for claims in both aggravated and exemplary damages. I take account of the fact that in Henry v TVW Enterprises Ltd (supra), an award of exemplary damages was made in circumstances where the Court was prepared to accept that publication of images for the purpose of illustrating a story could, nonetheless, attract a punitive remedy. To my mind, there is a sufficient resemblance between the circumstances of that case and the circumstances presently before me to suggest that the particulars set out in par 10 of the claim should not be struck out in the manner contended for by counsel for the defendants.

63 In summary, then, I am persuaded that the pleaded imputations can be said to arise from the words complained of and the words, in conjunction with the photograph, are capable of conveying a meaning defamatory of the plaintiffs. I am not satisfied that the various imputations should be struck out in the manner contended for by the defendants. It follows that I will allow to the plaintiffs leave to amend in terms of the minute dated 6 September 2000 as varied by the memorandum. I will hear from the parties as to whether any further orders are required.

Marley's Transport Pty Ltd & Anor v West Australian Newspapers Ltd & Anor [2001] WASC 31

At a glance

Court

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Before

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Judgment (87 paragraphs)

Marley's Transport Pty Ltd & Anor v West Australian Newspapers Ltd & Anor [2001] WASC 31 (12 February 2001)

Parties

Cases Cited (12)