MCJANNETT -v- DALEY [2012] WASC 217 (22 June 2012)

3 In this action the plaintiff claims damages for defamation arising out of five publications as follows:

1. Paragraph 46 of an affidavit sworn by the defendant on 2 March 2011 and filed in the Family Court.
2. An email sent by the defendant on 6 July 2011 to 'a junior staff member of the Family Court'.
3. A letter written by the defendant and filed in the Family Court on 6 October 2011.
4. An email sent by the defendant to 'a junior staff member of the Family Court' on or about 13 February 2012.
5. A letter written by the defendant to the Family Court dated 23 February 2012.

4 The defendant opposes leave to amend the statement of claim in accordance with the proposed statement of claim. The defendant contends that the proposed statement of claim is liable to be struck out in its entirety, alternatively paragraphs of the proposed statement of claim are liable to be struck out for various reasons.

5 The matters set out in [1] to [4] of the proposed statement of claim that are relevant to the causes of actions stated in the indorsement are:

1. The plaintiff sued the defendant in matter CIV 1952 of 2007.
2. The matter was settled at court ordered mediation on 10 April 2008.
3. The plaintiff and the defendant entered into a written settlement agreement dated 10 April 2008.
4. It was an express term of the agreement that the defendant agreed to sign a statement withdrawing and agreeing not to repeat various allegations made by her in relation to the plaintiff.
5. The defendant signed a document headed 'statement' under which she said she withdrew, and agreed not to repeat, all allegations made by her against the plaintiff regarding his alleged conduct towards J and T which was the subject of complaints to the police in 2006.

6 The other matters set out in [1] to [4], including annexing a copy of the settlement agreement and a copy of the statement of claim in CIV 1952 of 2007, are irrelevant and may prejudice, embarrass or delay the fair trial of the action.

7 Paragraphs 5 to 13 of the proposed statement of claim deal with [46] of the affidavit sworn by the defendant on 2 March 2011 and filed in the Family Court. The matters in those paragraphs which are relevant to the claimed causes of action are:

1. On 2 March 2011 the defendant swore an affidavit, which contained the words 'ur the slithering dirty rock spider remember the whole community needs protection from people like you'.
2. The persons to whom the plaintiff says the said words were published by the defendant.
3. The meaning or meanings which the words bear and were understood to mean.

8 The remaining matters in [5] to [13] of the proposed statement of claim are not relevant to the claimed causes of action and may prejudice, embarrass or delay the fair trial of the action.

9 Paragraphs 14 to 19 deal with the email sent by the defendant on 6 July 2011. The matters in those paragraphs which are relevant to the claimed causes of action are:

1. On 6 July 2011 the defendant sent an unsolicited email to a client administration officer named Karen Z at the Family Court.
2. The defendant published, or caused to be published, the email to other staff in the Family Court.
3. The email contained the words:

I was called by Christine Moorehouse who said to me she was very sorry to tell me but she could not have [T] as a client any more due to Mr McJannett's constant harassment ... to date [T] has copped nothing but abusive phone calls from her father being angry about her not wanting to see him.

1. The meaning or meanings the words bear or were understood to mean.

10 The remaining words set out in [14] to [19] of the proposed statement of claim are irrelevant to the claimed causes of action and may prejudice, embarrass or delay the fair trial of the action.

11 Paragraphs 20 to 24 deal with the letter written by the defendant and filed in the Family Court on 6 October 2011. The following matters in those paragraphs are relevant to the claimed causes of action:

1. On 6 October 2011 the defendant wrote a cover letter to the Family Court, which contained the following words:

'I believe that verbally trying to discuss this matter with Mr McJannett would be futile as it has been with every other issue in the past.'

1. The words complained of meant and were understood to mean:

(b) the plaintiff is unapproachable about anything; and

(c) the plaintiff always has been in the past unapproachable about anything.

12 The remaining matters set out in those paragraphs are not relevant to the claimed causes of action and may prejudice, embarrass or delay the fair trial of the action.

13 Paragraphs 25 to 29 deal with the email sent by the defendant to a staff member of the Family Court on or about 13 February 2012. The following matters are relevant to the claimed causes of action:

1. On 13 February 2012 the defendant sent an unsolicited email to the Family Court.
2. The email was read by the client administration officer Karen Z.
3. The email contained the words:

'I have been bombarded with text messages from the other party Robert McJannett.'

1. The words complained of meant and were understood to mean:

(c) The plaintiff sends unsolicited text messages to the defendant.

14 The remaining matters set out in paragraphs 25 to 29 are irrelevant to the claimed causes of action and may prejudice, delay or embarrass the fair trial of the action.

15 Paragraphs 30 to 38 deal with a letter written by the defendant to the Family Court dated 23 February 2012. The following matters are relevant to the claimed causes of action:

1. On 23 February 2012 the defendant sent an unsolicited letter to the Family Court.
2. The letter was read by the client administration officer Karen Z.
3. The letter was read by other staff at the court.
4. The letter contained the following words:

'After receiving nasty text messages upon finalisation of the hearing from Mr McJannett (13 February 2012) ... he was not pressured or intimidated by "bad court behaviour".'

1. The meaning the words bore or were understood to mean.

16 The remaining matters in those paragraphs are not relevant to the claimed causes of action and are liable to delay, prejudice or embarrass the fair trial of the action.

17 Paragraphs 39 to 41 deal with the meaning of the words 'filthy rock spider'. This appears to relate to the words contained in [46] of the affidavit of 2 March 2011. Where the plaintiff alleges that those words carry an innuendo meaning, the plaintiff should plead the facts and circumstances giving rise to that meaning and that those facts or circumstances were known to the persons to whom the affidavit was published. So that the defendant and the court may understand the case being put by the plaintiff that pleading should be expressly in relation to the affidavit of 2 March 2011. In their present form those paragraphs of the proposed statement of claim are embarrassing because they are not sufficiently linked to the publication complained of.

18 Paragraphs 42 to 46 deal with imputations. They appear to relate to imputations from various of the publications complained of. In their present form those pleadings are embarrassing. The pleading of the imputations should be clearly linked to the publication to which they relate. The imputation should make clear whether it is alleged to be the ordinary and natural meaning of the words or an innuendo meaning. If it is an innuendo meaning then the pleading must set out the facts or circumstances giving rise to the innuendo meaning and that those facts or circumstances were known to the persons to whom they were published.

19 Paragraphs 47 to 54 deal with damages. In their present form these paragraphs are argumentative and embarrassing. They fail to state precisely the loss or damages claimed by the plaintiff and the facts that constitute the causal link between each of the publications complained of and the loss and damage claimed. In their present form these paragraphs will delay, embarrass or prejudice the fair trial of the action.

20 Leave to amend the statement of claim in accordance with the proposed amended statement of claim will be refused, because it contains many assertions that are not relevant to any of the claimed causes of action and may prejudice, embarrass or delay the fair trial of the action. The plaintiff should prepare a further minute of proposed amended statement of claim, which confines itself to relevant matters.

21 The plaintiff's application is, in essence, for an injunction to restrain the defendant from further publishing the words complained of in each of the publications complained of or any similar words defamatory of the plaintiff. Before considering the claim in relation to each of the publications complained of, I will outline legal principles relevant to an application for an interlocutory injunction to restrain a defendant from publishing allegedly defamatory material.

22 In general, a plaintiff must establish two things before an interlocutory injunction will be granted:

(a) there is a prima facie case that the plaintiff will be granted final relief; and

(b) the balance of convenience favours the grant rather than the refusal of the injunction.

23 The High Court considered the grant of interlocutory injunctions to restrain the publication of material alleged to be defamatory in Australian Broadcasting Corporation v O'Neill [2006] HCA 46; (2006) 227 CLR 57. The court held, in considering whether to grant an interlocutory injunction, the two fold formulation of the prima facie case and the balance of convenience is to be applied, and that the required strength of the plaintiff's case depends upon the nature and rights asserted and the practical consequences of what the plaintiff wants. A court should be cautious before granting an interlocutory injunction to restrain the publication of allegedly defamatory material. In considering whether or not to grant an interlocutory injunction the court must have regard to the importance of the public interest in the right of free speech.

24 On 13 April 2012 the defendant filed a document entitled 'minute of proposed defence'. I will refer to that document as the proposed defence. For the purposes of this application I will treat admissions contained in the proposed defence as admissions made by the defendant. I will now consider the plaintiff's application for an interlocutory injunction in relation to each of the publications complained of.

25 The defendant says that she published an SMS message to the plaintiff on 2 February 2011 in response to an SMS message from the plaintiff that same day, in which she published the words:

Ur the slithering dirty rock spider remember the whole community needs protection from people like you ...

The defendant admits that she swore an affidavit, which in [46] contained those words. The defendant says that the words were published on an occasion of absolute privilege, pursuant to s 27 of the Defamation Act 2005 (WA) as they were published in an affidavit, which was filed with the Family Court in the course of Family Court proceedings.

26 Section 27 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that it was published on an occasion of absolute privilege, and the matter is published on an occasion of absolute privilege, if it is published in the course of the proceedings of an Australian court including the publication of any matter in any document filed or lodged with, or otherwise submitted to, the court or tribunal.

27 The only evidence of publication before the court, including the admissions by the defendant, is that the affidavit was filed at the Family Court. Section 27 of the Defamation Act provides the defendant with a complete defence to the publication of the affidavit by way of filing it at the Family Court. On the evidence presently before the court the defendant has a very strong defence. Having regard to the strength of the defendant's case and the nature of the rights in issue, the plaintiff has not made out a sufficient likelihood of success to justify the grant of an interlocutory injunction.

28 The second publication complained of relates to the email of 6 July 2011. The evidence before the court is that on 6 July 2011 the defendant sent an email to a Client Administration Officer at the Family Court in which she said:

As per orders issued by Justice Martin dated 20 April 2011 the respondent (mother) arranged for counselling for the child [T] with Christine Moorehouse, Clinical Psychologist.

[T] attended 6 of these sessions so far and we (psychologist and I) were preparing to renew the referral until today.

I was called by Christine Moorehouse who said to me she was very sorry to tell me but she could not have [T] as a client any more due to Mr McJannett's constant harassment and that she did not need the stress he was causing her and that she worked alone therefore had no 'backup' to help her deal with him.

To date [T] has copped nothing but abusive phone calls from her father being angry about her not wanting to see him.

The psychologist has told me that [T] is a very frightened and very sad girl so I feel obliged to ask you please advise me whether to look for another clinical psychologist (I guess there's nothing stopping it happening again) or should this matter be listed?

Your urgent advice on this matter would be much appreciated.

The Principal Registrar of the Family Court replied to the defendant by letter of 12 July 2011 stating:

I refer to your email to the Client Administration Officer dated 6 July 2011 in which you seek advice concerning the appropriate action for you to take arising out of the matters mentioned in your correspondence.

It is not the function of the Client Administration Officer to give advice to either party about the conduct of the proceedings. If you are in any doubt about the next step to take in the proceedings you should seek legal advice. If you propose that the court make any further orders in the proceedings it would be appropriate for you to file a Form 2 application together with a supporting affidavit setting out the evidence on which you intend to rely.

Please note that it is a requirement of the court's case management guidelines for a party corresponding with the court to send a copy of that correspondence to the other party and for the correspondence to indicate that this has been done. Please ensure that on each occasion you comply with this requirement.

29 The defendant says that the words were published on an occasion of absolute privilege pursuant to s 27 of the Defamation Act or alternatively on an occasion of qualified privilege pursuant to s 30 of the Defamation Act. As I have said, s 27 of the Defamation Act provides that matter is published on an occasion of absolute privilege if it is published in the course of the proceedings of an Australian court including the publication of any matter in any document filed or lodged with, or otherwise submitted to, the court. There is an issue between the parties whether sending the letter to the client administration officer falls within the privilege conferred by s 27.

30 Section 30(1) provides there is a defence of qualified privilege for the publication of defamatory matter to a person if the defendant proves that:

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

Section 30(2) provides that a recipient has an apparent interest in having information on some subject if, and only if, at the time of the publication in question, the defendant believes on reasonable grounds that the recipient has that interest. Whether the defendant had reasonable grounds for believing that the client administration officer had an apparent interest in the information sent and whether, having regard to the matters in s 30(3)(d) of the Defamation Act, the conduct of the defendant in publishing the matter was reasonable in the circumstances are issues for trial.

31 The defendant has two arguable defences. Having regard to the nature of the rights in issue, the plaintiff has not made out a sufficient likelihood of success to justify the grant of an interlocutory injunction.

32 There are further reasons why it is not appropriate to grant an interlocutory injunction in relation to the email. The email complained of was sent in July 2011. There is no evidence that the email, or similar words, have been further republished by the defendant. The defendant sent a letter to the client administration officer at the Family Court on 6 October 2011 and an email to the client administration officer on 13 February 2012. Each of those communications arguably contains criticism of the plaintiff but they do not repeat any of the allegations contained in the 6 July 2011 email concerning the plaintiff's conduct towards the psychologist or T. Furthermore, the Family Court proceedings are continuing. Assuming, without deciding, that this court has power to restrain the defendant from communicating with the Family Court it would not be proper to do so.

33 The defendant admits that she wrote a letter dated 6 October 2011 to the Family Court which contained the words:

I believe that trying to verbally discuss this matter with Mr McJannett would be futile as it has been with every other issue in the past.

The defendant says that the letter was filed in the Family Court on 7 October 2011. The letter complained of is addressed to the client administration officer. Its opening words are:

Can you please consider giving permission for me to file this form to application along with my affidavit dated 06/10/2011.

34 The plaintiff says that the ordinary and implied meaning of the words complained of is that the plaintiff is hostile and unapproachable about anything and always has been in the past. The defendant denies that the words give rise to that meaning.

35 The defendant relies upon the defences of absolute privilege pursuant to s 27 of the Defamation Act and qualified privilege pursuant to s 30 of the Defamation Act. Furthermore, the defendant relies upon the defence of triviality under s 33 of the Defamation Act, which provides that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.

36 The defendant has four arguable defences: that the words are not defamatory, absolute privilege, qualified privilege and triviality. Having regard to the nature of the rights in issue, the plaintiff has not made out a sufficient likelihood of success to justify the grant of an interlocutory injunction. Furthermore, an injunction to restrain the defendant from stating to the Family Court that discussing matters concerning T with the plaintiff would be futile in the context of making, or seeking to make an application to the Family Court would unduly restrain the defendant's communications with that court.

37 The defendant admits she sent an email on 13 February 2012 to Karen of the Family Court. The email states:

Leanne Daley here. File No PTW/4104/06.

I have been bombarded with text msg's from the other party (Robert McJannett) claiming that I was meant to turn up to court this morning. I have had no notification from the Family Law Court and no papers served on me.

If you could please let me know what is happening or was supposed to happen that would be great.

38 The plaintiff says that the ordinary and implied meaning of the words, 'I have been bombarded with text msg's from the other party Robert McJannett' is that the plaintiff is aggressive and abusive and that he sends unsolicited text messages to the defendant.

39 The defendant denies that the words complained of bear the meaning alleged by the plaintiff. Further, the defendant relies upon the defences of absolute privilege, qualified privilege and triviality.

40 Having regard to the nature of the rights in issue, the plaintiff has not made out a sufficient likelihood of success to justify the grant of an interlocutory injunction. Furthermore, it would be inappropriate to restrain the defendant's communications with the Family Court by the grant of an interlocutory injunction restraining her from repeating the words set out in the email or words to similar effect.

41 The plaintiff says that on 23 February 2012 the defendant sent a letter to the Family Court, which was read by the client administration officer Karen Z, and other junior staff at the court, who open common mail sent to the court and also by other court officers associated with the case file. The plaintiff says that the letter contained the words:

After receiving nasty text messages upon finalisation of the hearing from Mr McJannett.

and referring to Justice Thackray and the defendant:

He is not pressured or intimidated by bad court behaviour.

42 The plaintiff says that the implied and ordinary meaning of the words is that the plaintiff is ill natured, violent, dangerous, offensive and obscene, and transmits his behaviour in his text messages to the defendant. The plaintiff also says that the words mean that the plaintiff misbehaves in court.

43 The defendant admits that she wrote a letter to the Principal Registrar of the Family Court on 23 February 2012 and that the letter contained the words complained of by the plaintiff. The defendant does not admit, and there is no evidence, that the letter was published to or read by anyone other than the Principal Registrar of the Family Court.

44 The defendant denies that the words complained of gives rise to the imputations alleged by the plaintiff. The defendant relies upon the defences of absolute privilege, qualified privilege and triviality.

45 Having regard to the nature of the rights in issue, the plaintiff has not made a sufficient likelihood of success to justify the grant of an interlocutory injunction.

46 The defendant has an arguable defence to each of the plaintiff's claims. It is not appropriate to attempt a preliminary trial of the plaintiff's claims in the course of this interlocutory application. The plaintiff seeks to restrain the defendant from publishing the words complained of in each of the publications complained of or words to similar effect. The court must be careful to protect freedom of speech. Furthermore, the court must not unduly inhibit communications between the defendant and the Family Court in the course of proceedings in the Family Court to which the defendant is a party. Having regard to the nature of the rights in issue and the practical consequences of what the plaintiff wants, the plaintiff has not established a sufficient likelihood of success to justify the grant of an interlocutory injunction. Having regard to all of those matters the plaintiff's application for an interlocutory injunction will be dismissed.