MCJANNETT -v- DALEY [No 2] [2012] WASC 386 (17 October 2012)

3 On 2 April 2012 the plaintiff filed an amended indorsement of claim pursuant to the orders made on 27 March 2012 and a minute of proposed amended statement of claim dated 1 April 2012. On 13 April 2012 the defendant filed a document entitled 'minute of proposed defence'. That document contained a mixture of submissions that the plaintiff's minute of proposed amended statement of claim was liable to be struck out and the defendant's answer to claims made in the proposed statement of claim.

4 On 17 April I heard the plaintiff's applications to amend his statement of claim and for interlocutory orders restraining the defendant from publishing material complained of. On 22 June 2012 I delivered reasons for judgment on those applications: McJannett v Daley [2012] WASC 217. The plaintiff did not appear at the delivery of judgment. I dismissed the plaintiff's application to amend his statement of claim and his application for an interlocutory injunction. I adjourned the matter to 26 July 2012 for further directions.

5 On 25 July 2012 the defendant filed a defence dated 24 July 2012. The defence contended that the statement of claim was liable to be struck out as well as stating the defendant's defence. The matter came of for further directions on 26 July 2012. The plaintiff sought to amend his statement of claim. I directed that the plaintiff file and serve a minute of proposed amended statement of claim on or before 27 August 2012 and otherwise adjourned the hearing. On 24 August 2012 the plaintiff filed a minute of proposed substituted statement of claim dated 24 August 2012.

6 On 6 September 2012 the matter came on again for directions. The plaintiff applied for leave to amend his statement of claim in accordance with the minute of proposed substituted statement of claim dated 24 August 2012. I will refer to that document as the proposed statement of claim. The defendant opposed leave being granted. The defendant further submitted that the action should be dismissed because the plaintiff has had three opportunities to plead a proper statement of claim and has been unable to formulate a proper pleading and has repeated allegations which have previously been struck out.

7 The court will not grant leave to amend a pleading into a form which ought to be struck out. The court will not give leave to make a defective amendment or one which does not disclose a good cause of action.

8 The plaintiff and the defendant are both self represented and have been since the commencement of the action. The court should approach matters involving litigants in person with a degree of flexibility, bearing in mind that the rules are a means to an end, not an end in themselves. Case management principles should be applied flexibly when dealing with litigants in person who do not have the resources or expertise possessed by legal practitioners and their cases should be managed in a way which accommodates the reasonable requirements of the self represented litigant provided no injustice is visited on other parties: Tobin v Dodd [2004] WASCA 288 [70].

9 In his amended indorsement of claim 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.

10 The defence of absolute privilege in an action for defamation deprives the plaintiff of any remedy, even in respect of a malicious and untrue publication that causes real damage. The general rule is that no action will lie for defamatory statements made in the course of judicial proceedings before a court. The privilege extends to witnesses and parties to judicial proceedings. No action will lie against a witness for defamatory words used in her character of witness with reference to the enquiry upon which she is called to give evidence, even though such words were irrelevant and spoken maliciously and without reasonable or probable cause: see Gatley on Libel and Slander (11th ed) [13.11].

11 In Mann v O'Neill [1997] HCA 28; (1997) 191 CLR 204 Brennan CJ, Dawson, Toohey and Gaudron JJ said:

It is well settled that absolute privilege attaches to all statements made in the course of judicial proceedings, whether made by parties, witnesses, legal representatives, members of the jury or by the judge. It extends to oral statements and to statements in originating process, in pleadings or in other documents produced in evidence or filed in the proceedings. It is said that it extends to any document published on an 'occasion properly incidental to [judicial proceedings], and necessary for [them]' (211 212). (citations omitted)

In discussing the rationale for absolute privilege to attach to statements made in the course of judicial proceedings their Honours said:

And absolute privilege attaches to statements made in the course of judicial proceedings because it is an indispensable attribute of the judicial process. It is necessary that persons involved in judicial proceedings, whether judge, jury, parties, witnesses or legal representatives, be able to discharge their duties freely and without fear of civil action for anything said by them in the course of the proceedings (213). (citations omitted)

Gummow J limited absolute privilege attaching to out of court statements to 'statements made outside court but forming an integral and necessary part of the preparation for and pursuit of the litigation' (243).

12 The privilege applies not only to evidence given orally but also to statements contained in an affidavit: Smeaton v Butcher [2000] EMLR 985. The privilege extends beyond what is said or done in court. A statement by a witness or prospective witness, including a party, whether made to a solicitor for the purposes of the preparation of a statement, proof of evidence or affidavit, or made in a statement, proof of evidence or affidavit, is absolutely privileged unless it has no reference at all to the subject matter of the proceedings: Smeaton v Butcher (Clarke LJ with Latham LJ agreeing).

13 Absolute privilege applies to judicial proceedings and incidental activities. In Lincoln v Daniels [1962] 1 QB 237, 257 Lord Devlin stated that absolute privilege which covers statements made in the course of judicial proceedings can be divided into three categories. The first is everything that is said in the course of proceedings by judges, parties, counsel and witnesses and includes the contents of documents put in as evidence. The second category is everything that is done from the inception of the proceedings onwards and extends to all documents brought into existence for the purpose of the proceedings. The third category applies to proofs of evidence taken by a solicitor. Gatley, after stating that the privilege will attach to any matter incidental to the proceedings 'practically necessary for the administration of justice' cites Wong Shui Kee v Chu [2002] HKEC 1570 (HKCA) as authority for the proposition that 'necessary' includes the usual correspondence between parties and is not confined to documents required by rules of court. In Wong Le Pichon JA, with whom the other members of the Hong Kong Court of Appeal agreed, said that Devlin LJ's second category in Lincoln v Daniels was not limited to pleadings, affidavits and documents filed pursuant to the rules of the court. Le Pichon JA accepted that the privilege extended to a letter written by the solicitors for one party to the solicitors for the other party concerning the conduct of the action.

14 The Defamation Act 2005 (WA) s 6(2) of the Act provides, in effect, that the defences under the general law are preserved by the Act unless excluded expressly or by necessary implication. Accordingly, the common law relating to absolute privilege continues to apply. Section 27(1) 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. In addition, s 27(2) of the Act provides that, in effect, without limiting the occasions on which a publication is absolutely privileged at common law, matter is published on an occasion of absolute privilege if, amongst other things, 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.

15 I will now consider whether or not the defence of absolute privilege applies to each of the publications complained of by the plaintiff in this action.

16 The essence of the plaintiff's claim in relation to the affidavit sworn by the defendant on 2 March 2011 is that the affidavit contains a statement defamatory of the plaintiff and the defendant published it to staff at the office of Terrace Law, her solicitors, and to administrative staff and judicial officers at the Family Court.

17 No action will lie against the defendant for any defamatory statement made by her in an affidavit brought into being for legal proceedings when being used for that purpose. The proposed statement of claim alleges that the affidavit was published to administrative staff and judicial officers of the Family Court after it was filed at the court. Those publications are on an occasion of absolute privilege. That claim cannot succeed and should be struck out.

18 The plaintiff further complains of the publication of the affidavit to staff at the defendant's solicitors, Terrace Law. In the course of the hearing the plaintiff elaborated upon that assertion. The plaintiff said that the staff referred to was a female person who typed the affidavit and delivered it to the Family Court. A statement by a witness or prospective witness, including a party, whether made to a solicitor for the purposes of the preparation of a statement, proof of evidence or affidavit, or made in a statement, proof of evidence or affidavit, is absolutely privileged unless it has no reference at all to the subject matter of the proceedings: Smeaton v Butcher (Clarke LJ with Latham LJ agreeing). The principle which makes the statement by a party or witness to a solicitor for the purposes of the preparation of an affidavit absolutely privileged must apply to the repetition of the statement by the solicitor to a secretary for the purpose of typing the affidavit. The privilege that covers proceedings in a court extends to the publication of documents where it is necessary to do so in order to protect those who are to participate in the proceedings from a flank attack: Lincoln v Daniels (263) (Devlin LJ). It was necessary for the affidavit to be typed and delivered to the Family Court for it to be filed at the court for the purposes of the proceedings in the Family Court. The publication to the staff at Terrace Law is absolutely privileged. The plaintiff cannot maintain an action in respect of that publication. The whole of the plaintiff's claim in relation to the affidavit should be struck out.

19 The plaintiff pleads that the defendant sent an unsolicited email to a client administration officer, Karen Z, at the Family Court and caused to be published the email to other court staff. The email is an exhibit to the plaintiff's affidavit sworn 2 April 2012. It is in the following terms:

6 July 2011

Dear Sir/Madam

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

[Emma] has 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 [Emma] as a client anymore due to Mr McJannets' 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 [Emma] 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 [Emma] is a very frightened and very sad girl so I feel obliged to ask you please advise me wether to look for another clinical psychologist (I guess theres nothing stopping it happening again) or should this matter be listed?

Your urgent advice on this matter would be much appreciated.

Yours sincerely

Leanne Daley (Mother)

20 A client administration officer is not a member of the Family Court and does not discharge any judicial function. A client administration officer is a member of staff appointed under Family Court Act 1997 (WA) s 28(1). Such staff 'are necessary for the performance of the court's functions'. Case Management Guidelines issued by the Chief Judge of the Family Court of Western Australia from 30 November 2010 inform those who use the court of how the court's case management system works, the arrangement that regulates the progression of cases and the events which go to make up that progression. Chapter 1 pt B deals with case management procedures in relation to applications seeking final parenting orders. Paragraph 6.1 provides that applications starting a case seeking final parenting orders will be listed, if practicable, to a Child Related Proceeding (CRP) list. Paragraph 7 provides that in a CRP List the court may, amongst other things, allocate a Client Administration Officer to the case. Paragraph 10.1 provides that after a case has started, a party may not file an application in that case without permission. Paragraph 10.2 provides that permission to file an application is to be sought by letter addressed to the Client Administration Officer setting out the reasons relied upon together with a copy of the applications sought to be filed.

21 In the email the defendant sought advice whether to look for another counsellor or have the matter relisted. The defendant did not seek permission to file an application and set out the reasons relied upon together with a copy of the application sought to be filed. In effect, the defendants asked for advice whether to arrange a new counsellor or make a new application and gave the reasons for seeking that advice.

22 It may well be that publishing the email to the client administration officer was an occasion of absolute privilege at common law. The ascertainment of what communications to the court fall within the immunity involves consideration of the court structure and rules of practice and procedure within which the proceedings is placed and from which it draws its sustenance: Mann v O'Neill (243) (Gummow J). The practice or procedure of the Family Court requires a party to seek permission to bring an application in the course of a case that has began by letter addressed to the client administration officer setting out the reasons relied upon and a copy of the application sought to be filed. A litigant acting in person will be severely impeded in following the procedures required by the court if she is at risk of an action for defamation when writing to a client administration officer asking whether she should ask for the matter to be relisted and her reasons for asking.

23 It is also arguable that the email attracts absolute privilege under Defamation Act s 27(2) on the basis that it was a document filed or lodged or otherwise submitted to the Family Court and was published in the course of the proceedings of the court. The 'proceedings' should be given a wide meaning to include steps taken in relation to carrying out orders for counselling or obtaining orders for counselling.

24 As I have said it is arguable that the first email was published on an occasion of absolute privilege. However, the plaintiff's claim should not be dismissed on the grounds that the publication was on an occasion of absolute privilege unless the argument to the contrary is wholly untenable. It is not sufficient that the defendant has a strong argument. The plaintiff's claim should only be struck out if it is so clearly untenable that it cannot succeed: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 130. I am not satisfied that the defence of absolute privilege is bound to succeed in relation to the first email or, to put it another way, that the plaintiff's claim is so clearly untenable that it cannot succeed.

25 The defendant also raises the defence of qualified privilege. That is a matter which will have to be determined at trial.

26 The next publication complained of by the plaintiff is a letter of 6 October 2011 to the client administration officer. The letter is in the following terms:

Can you please consider giving permission for me to file this Form 2 Application along with my Affidavit dated 06/10/2011.

I am seeking these orders so we can plan out holidays with the knowledge that Amber will be allowed to come with us.

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 affidavit sets out key points as to why I am applying for these orders and what we intend to do for our part of the holiday break.

27 I am satisfied that this letter was published on an occasion of absolute privilege. The defendant addressed the letter to the Client Administration Officer seeking permission to file an application and setting out the reasons relied upon together with a copy of the application sought to be filed in accordance with [10.2] of the Case Management Guidelines. The filing or lodging of that letter with the Client Administration Officer formed an integral and necessary part of the pursuit of the proceedings before the Family Court and therefore was an occasion of absolute privilege at common law. Furthermore, the letter was a document submitted to the Family Court in the course of the proceedings of the court and is absolutely privileged under Defamation Act s 27(2).

28 Accordingly, the plaintiff's claim in relation to the first letter is untenable and must be struck out.

29 The other two publications complained of are an email to the Family Court of 13 February 2012 and the letter to the Family Court of 23 February 2012, both sent to the client administration officer. The email of 13 February 2012 does not seek permission to file an application. It says:

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.

30 The plaintiff's statement of claim does not disclose the contents of the letter of 23 February 2012, other than setting out two sentences complained of and there is no evidence of the terms of the letter beyond that. For the same reasons I have stated in relation to the email of 6 July 2011 it is arguable that each of the publications was published on an occasion of absolute privilege but that is not clear beyond argument and the plaintiff's claim in relation to those matters should not be summarily dismissed on that ground. Again, those publications may have also been made on an occasion of qualified privilege but that is a matter for trial.

31 For the reasons stated, the plaintiff's claims in relation to the affidavit sworn by the defendant on 2 March 2011 and the letter of 6 October 2011 will be struck out. The plaintiff's claims in relation to the emails of 6 July 2011 and 13 February 2012 and the letter of 23 February 2012 will not be struck out on the grounds that they were published on an occasion of absolute privilege. Whether or not they were published on an occasion of absolute privilege is a matter for trial. Similarly whether they were published on an occasion of qualified privilege is a matter for trial.

32 I will now consider other aspects of the proposed statement of claim.

33 The proposed substituted statement of claim is divided into a number of sections. First, [1] to [3] deal with CIV 1952 of 2007 and a comment upon the damages claimed. Second, [4] to [11] deal with the affidavit sworn by the defendant on 2 March 2011. Third, [14] to [19] deal with the email sent by the defendant on 6 July 2011 to the Family Court. Fourth, [20] to [24] deal with the letter sent by the defendant to the Family Court on 6 October 2011. Fifth, [25] to [30] deal with the email sent by the defendant to the Family Court on 13 February 2012. Sixth, [31] to [36] deal with the letter written by the defendant to the Family Court dated 23 February 2012. Seventh, [37] to [43] deal with the innuendo carried by the words 'dirty rock spider' in the affidavit sworn by the defendant. Eighth, [44] - [48] deal with the imputations arising from each of the publications complained of. Ninth, [49] - [65] deal with particulars of damage.

34 Paragraphs 1 and 2 of the proposed statement of claim allege that the parties settled matter CIV 1952 of 2007 and the defendant gave undertakings 'never to repeat her vexatious allegations and not to discuss matter with the media'. Action CIV 1952 of 2007, the settlement of that action and the undertakings given by the defendant are not relevant to the elements of the causes of action asserted in this action. They may be relevant to the plaintiff's claim for damages. If the defendant made statements when she had undertaken not to do so, that might injure the plaintiff's feelings of dignity and pride and aggravate the injury to the plaintiff's feelings so as to support a claim for aggravated damages. However, there is no plea that the defamatory statements by the plaintiff in the publications complained of contravened the undertakings given by the plaintiff. Furthermore, there is no plea that in support of a claim for aggravated damages the plaintiff will rely on the fact that the publications complained of contravene the undertakings given by the defendant. In the absence of such a plea [1] and [2] are irrelevant and embarrassing. They will not be allowed.

35 Paragraph 3 pleads that the damages referred to at [49] to [65] are 'common damages incurred by all the defamatory words published by the defendant' in the publications complained of. It would make the statement of claim more readily understood if [3] had come after [48] and before [49].

36 I have found that the plaintiff's claim in relation to the affidavit sworn by the defendant on 2 March 2011 should be struck out. Accordingly, [4] to [11] of the statement of claim will not be allowed.

37 Paragraph 14 pleads that the defendant sent the email to the client administration officer at the Family Court and caused to be published the email to other court staff. Each communication of the material is a separate publication and gives rise to a separate cause of action. The statement of claim should allege, in respect of each publication relied on as a cause of action, that the words were published by the defendant to a named person or persons. Where the plaintiff seeks to make the original publisher responsible for the republication or repetition by a third person of defamatory words the plaintiff must identify the person or persons to whom the words were republished and make clear in his pleading the basis on which he claims that the original publisher is liable for the subsequent publication.

38 The plea that the defendant sent the email to the client administration officer is a sufficient identification of the publication by the defendant of the email to the client administration officer. However, the pleading that the defendant 'caused to be published the email to other court staff' is not sufficient for two reasons. First, it appears to be an allegation that the email was republished by the client administration officer to others. If so, the statement of claim must set out the basis upon which it is alleged that the defendant is responsible for that republication. Secondly, the statement of claim must identify the occasion of the republication and the person or persons to whom it was republished. If the plaintiff does not know the name of the person or persons to whom publication is alleged, they must nevertheless be sufficiently described as to enable them to be identified. Gatley, (11th ed) at [28.7] says:

In very exceptional cases, particulars of claim may be permitted to stand notwithstanding that they fail adequately to identify the circumstances in which the person or persons to whom the defamatory words are alleged to have been published ... the proper course for the claimant in such a case is to plead the best particulars which he can give and to await disclosure or to seek or apply for further information from the defendant as to the identity of the person or persons to whom the words were published. The court will not, however, entertain an action of a speculative nature and such a course will only be permitted where the claimant can show by uncontradicted evidence that publication by the defendant has taken place. If he cannot do this, the court will order particulars of the names and addresses of the person or persons to whom publication is alleged, or in default that the allegation be struck out.

39 In a defamation action the words used are material facts and they must therefore be pleaded verbatim, preferably in the form of a quotation. It is not enough to describe their substance, purport or effect. The particular passages complained of should be clearly identified and set out. Paragraph 14 should clearly state that the words complained of are those set out in subpars (a) and (b) and no other words. The introductory text of [14] creates uncertainty insofar as it says that the email 'contained the words - "constant harassment" and "abusive"'. It appears that the plaintiff is complaining only of the words in subpars (a) and (b). However, the pleading that the email contained the words 'constant harassment' and 'abusive' leaves open the possibility that the plaintiff is complaining of words in the email other than those set out in subpars (a) and (b). Paragraph 14 is defective. Leave will not be given to amend in those terms.

40 Paragraph 15 pleads that the allegations in the email are false, disparaging and malicious. It is not necessary to plead that the statements are false. They are presumed to be false unless and until the defendant pleads truth. The motive of the defendant in publishing the words complained of is not relevant unless the defendant pleads that the words were published on an occasion of qualified privilege. If the defendant pleads qualified privilege then the plaintiff may plead malice in a reply. Defamation Act s 36 provides that in awarding damages for defamation the court is to disregard the malice or other state of mind of the defendant except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. Paragraph 15 does not plead aggravated damages on the basis that the harm sustained by the plaintiff was affected by the defendant's malice or other state of mind. Paragraph 15 is irrelevant and embarrassing. It will not be allowed.

41 Paragraphs 16 to 18 argue the meaning of the words 'harass', 'constant' and 'abusive'. The function of a statement of claim is to set out the material facts of the plaintiff's claim. The plaintiff must plead the defamatory meaning or meanings of the words of which he complains. He should do so as precisely as possible without arguing why the words give rise to that meaning. Paragraphs 16, 17 and 18 set out dictionary meanings of individual words. That is argument, not material facts.

42 It appears that [19] is intended to plead the imputation arising from the words complained of in the first email. The plaintiff should specify the act or condition which he claims was attributed to him by the words complained of. Each imputation, or meaning, should be separately pleaded. The pleading should be substantially in the form:

In their natural and ordinary meaning the words pleaded in paragraph 14 meant and were understood to mean that the plaintiff:

[here set out each separate imputation alleged]

The plea that the plaintiff is an abusive person who engages in constant harassment are two imputations rolled into one. The first imputation is that the plaintiff is an abusive person. The second imputation is that the plaintiff engages in constant harassment. They should be separately pleaded. Furthermore, the email is not capable of giving rise to the imputation that the plaintiff is a person who engages in constant harassment. The relevant words complained of are that 'she could not have [Emma] as a client anymore due to [the plaintiff's] constant harassment'. The words convey the meaning that the plaintiff has constantly harassed the person referred to. The words do not say that the plaintiff has harassed anyone else.

43 The first letter was published on an occasion of absolute privilege. The plaintiff's claim in relation to that publication is untenable. Paragraphs 20 to 24 will not be allowed.

44 Paragraph 25 pleads that the defendant sent an email to the Family Court that was unsolicited and she did not copy the email to the plaintiff. That is irrelevant unless and until the defendant pleads qualified privilege and the plaintiff claims that those matters are evidence of malice. Paragraph 25 pleads that the email contained false allegations. That is unnecessary and irrelevant.

45 Paragraph 26 appears to plead republication to 'other officers in the Family Court'. If that is intended to be a plea of republication then the plaintiff must identify the persons to whom the email was republished and the basis on which the defendant is said to be responsible for the republication. If [26] is not intended to plead republication then it is irrelevant.

46 Paragraph 27 pleads that the email constituted continued aggravation by the defendant. That is unnecessary and irrelevant unless it is alleged to be a ground for aggravated damages. The pleading does not say that.

47 Paragraph 29 pleads that the words complained of are malicious, manifestly untrue and disparaging. Those words are unnecessary and embarrassing for the same reason that [15] is unnecessary and embarrassing.

48 Paragraph 30 pleads that the ordinary and implied meaning of the words 'I have been bombarded with text messages from the other party Robert McJannett' is that the plaintiff is a criminal because he bombards the defendant with unsolicited text messages which would be a Federal offence. The words complained of are not capable of giving rise to the imputation that the plaintiff is a criminal. The words complained of do not say that the plaintiff is a criminal. An ordinary reasonable reader would not understand that it is a criminal offence to bombard a person with text messages. The pleading should not be allowed.

49 The plea in [31] that the defendant sent an unsolicited letter and that it contained false and disparaging statements is irrelevant, unnecessary and embarrassing for the reasons given earlier. The plea in the second sentence that the letter was copied to the plaintiff and arrived at his address in a hand addressed envelope written by the defendant is irrelevant, unnecessary and embarrassing.

50 Paragraph 32 appears to plead republication of the letter to unnamed junior staff and court officers. If the plaintiff claims that was a republication he should identify the persons to whom the letter was republished and the basis on which it is said the defendant was responsible for the republication.

51 Paragraph 34 is unnecessary and embarrassing for the same reasons as [15].

52 Paragraph 35 does not properly plead the imputation which the plaintiff says the words give rise to. The plaintiff should plead the act or condition attributed to the plaintiff. Each imputation should contain a distinct act or condition attributed to the plaintiff. The first sentence of [33] is argument, not the pleading of material facts.

53 Paragraph 36 is embarrassing. The matters pleaded appear to be relevant, if at all, to damages. However, it is not pleaded that those matters aggravated the damages suffered by the plaintiff. Furthermore, Defamation Act s 36 provides that in awarding damages for defamation the court is to disregard the malice or other state of mind of the defendant except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. Paragraph 36 does not plead that the harm sustained by the plaintiff was affected by the defendant's malice or other state of mind.

54 These paragraphs all relate to the meaning of the words 'dirty rock spider' in the affidavit or the imputations arising from those words. The affidavit was published on occasions of absolute privilege. The claim is not maintainable. Accordingly, [37] to [43] disclose no reasonable cause of action.

55 Paragraph 44 pleads an imputation arising from the words in the affidavit. For the reasons given, that discloses no reasonable cause of action.

56 Paragraph 45 pleads that the first email gives rise to the imputation that the plaintiff has a highly active penchant to harassment, insults and abuse directed at other people including his daughter. The email is not capable of giving rise to that meaning. The email refers to the plaintiff's conduct towards the clinical psychologist and his daughter. There is nothing in the email which is capable of giving rise to the meaning that the plaintiff has a 'highly active penchant', that is a strong or habitual liking for something or tendency to do something, to harassment, insults and abuse directed at other people.

57 Paragraph 46 pleads an imputation arising from the words in the first letter. That letter is absolutely privileged. Paragraph 47 discloses no reasonable cause of action.

58 Paragraph 48 pleads that the natural and ordinary meaning of the words in the second letter is that the plaintiff sent the defendant nasty text messages on 13 February 2012 and is himself nasty. That plea is embarrassing in form. It rolls up two imputations into one. The first imputation is that the plaintiff sent the defendant nasty text messages on 13 February 2012. The second imputation is that the plaintiff is nasty. They should be pleaded as separate imputations.

59 These paragraphs set out a discursive narrative which is confusing. All that is necessary is for the plaintiff to set out any damage that he has suffered and the facts which establish the causal link between the publications complained of and the damage suffered by the plaintiff. If the plaintiff claims that he has suffered a medical condition as a result of the publications he should set out precisely the alleged condition and the causal link between the publications and the condition. If the plaintiff claims he has suffered any loss of employment or earnings he should set out the particulars of his lost employment or earnings and the causal link between that damage and the publications complained of.

60 In these paragraphs the plaintiff makes a number of irrelevant and scandalous allegations. These include that the defendant made vexatious allegations in litigation in other jurisdictions, and matters concerning the plaintiff's daughter. Those allegations will not be allowed.

61 The plaintiff pleads allegations of child abuse made by the defendant to WA Police, the Family Court and the Joondalup Magistrates Court prior to the publications complained of. The plaintiff also pleads proceedings in other jurisdictions prior to the publications complained of. Those matters are irrelevant and embarrassing. The plaintiff pleads that he suffered medical conditions and loss of income as a result of matters other than the publications complained of. That is irrelevant and embarrassing.

62 The plaintiff complains of the effect of, and damage caused to him by, each of the five publications complained of. Two of those publications are absolutely privileged and the claims in respect of those publications cannot be maintained. Accordingly, the plaintiff cannot complain of the effect of, or damage caused by, those publications.

63 In [64] the plaintiff claims that damages at the time of settlement of CIV 1952 of 2007 were estimated at $400,000 including aggravated damages and that the damages in this action are extreme for aggravated damages and special damages. The plea that the plaintiff suffered damages at the time of the settlement of CIV 1952 of 2007 is irrelevant and embarrassing. If the plaintiff has suffered any special damages then they must be particularised.

64 For the reasons stated, the proposed statement of claim does not comply with the rules of pleading. Leave to amend the statement of claim in accordance with the minute of proposed substituted statement of claim dated 24 August 2012 is refused.

65 The plaintiff filed a statement of claim on 12 December 2011. As I have said, at the strategic conference on 27 February 2012 the plaintiff accepted that the statement of claim was not in proper order and asked for leave to amend. The plaintiff filed a minute of proposed amended statement of claim dated 7 March 2012. The plaintiff did not press that amendment and filed a minute of proposed amended statement of claim dated 2 April 2012. On 22 June 2012 I refused the plaintiff leave to amend in accordance with that minute. On 24 August 2012 the plaintiff filed a minute of proposed substituted statement of claim dated 24 August 2012. I have refused the plaintiff leave to amend in accordance with that minute.

66 The current statement of claim is the statement of claim dated and filed 12 December 2011. The statement of claim contains many allegations that are irrelevant and embarrassing. It contains claims for damages for defamation arising from three publications. The first two publications are the publication of the affidavit to the defendants, lawyers and to the Family Court. The second publication is the letter of 6 October 2011 to the Family Court. I have held that those publications were made on an occasion of absolute privilege and the claims are not maintainable.

67 The third publication complained of is the publication of the first email. That cause of action is pleaded in [13] to [17] of the statement of claim. That pleading is defective. Paragraph 16 pleads allegations against Ms Moorehouse which are irrelevant and embarrassing. The first paragraph 17 is argumentative. The second paragraph 17 is irrelevant and embarrassing. The pleading of the plaintiff's claim in respect of the publication of the email of 6 July 2011 as a whole is embarrassing and should be struck out. The statement of claim dated and filed 12 December 2011 will be struck out.

68 For the reasons stated orders should be made to the following effect:

1. The plaintiff's claim in respect of the publication of the affidavit sworn by the defendant on 2 March 2011 in proceedings in the Family Court of Western Australia to the Family Court, its judicial and administrative officers and staff, and to the members and staff of the legal practice Terrace Law is dismissed.
2. The plaintiff's claim in respect of the publication of the letter written by the defendant and filed in the Family Court on 6 October 2011 is dismissed.
3. The statement of claim dated and filed 12 December 2011 is struck out.
4. The plaintiff's application to amend the statement of claim in accordance with the minute of proposed substituted statement of claim dated and filed 24 August 2012 is dismissed.

CITATION : MCJANNETT -v- DALEY [No 2] [2012] WASC 386 (S)

Practice and procedure - Application for suppression order over reasons for decision - Defamation proceedings - Principles of open justice

1 LE MIERE J: In this action the plaintiff claims damages for defamation arising out of five publications. On 17 October 2012 I delivered reasons for dismissing the plaintiff's claim in relation to two publications, striking out the statement of claim and refusing leave to amend in accordance with a proposed amended statement of claim. On delivery of those reasons the plaintiff applied for an order suppressing those reasons for decision. The plaintiff also sought an order suppressing reasons for decision in this action which I published on 22 June 2012. Those were reasons for refusing an application to amend the statement of claim and dismissing an application for an interlocutory injunction.

2 The plaintiff applies for the suppression orders on the grounds that the reasons for decision set out statements defamatory of the plaintiff which are untrue. The defendant opposed the making of any suppression order or restriction on the publication of the reasons for decision on the ground that the public should have access to what occurs in the court.

3 An essential characteristic of courts is that they sit in public so that court proceedings are subject to public and professional scrutiny. It is also critical to the maintenance of public confidence in the courts: Hogan v Hinch [2011] HCA 4; (2011) 243 CLR 506 [20] (French CJ). However, the open court principle is not absolute. It may be limited in the exercise of the court's inherent jurisdiction: Hogan v Hinch [21] (French CJ). This may be done where it is necessary to secure the proper administration of justice.

4 The principle of open justice is that judicial proceedings must be conducted in an open court to which the public and the press have access: Scott v Scott [1913] AC 417. The exceptions to this fundamental rule are few. Another aspect of the principle of open justice is that a court is obliged to publish reasons for its decision not merely to provide reasons to the parties. Sir Frank Kitto KBE, a former justice of the High Court, in 'Why Write Judgments?' (1992) 66 Australian Law Journal 787 wrote:

It is not enough that the hearing of a case has been in public. The process of reasoning which has decided the case must itself be exposed to the light of day, so that all concerned may understand what principles and practices of law and logic are guiding the courts, and so that full publicity may be achieved which provides, on the one hand, a powerful protection against any tendency to judicial autocracy and against any erroneous suspicion of judicial wrongdoing and, on the other hand, an effective stimulant to judicial high performance (790).

5 In Reynolds v Panten (No 1) [1999] WASCA 89; (1999) 23 WAR 215 Steytler J at [79] said:

While the courts will always do what they can, within the limits of their function, to protect private rights and interests (cf John Fairfax Group v Local Court of NSW, supra, ibid and Kelson v Forward [1995] FCA 1584; (1995) 60 FCR 39 at 43), it will be a rare case in which it can safely be said that a private interest, or even some competing public interest, is such as to override the public interest in knowing what has taken place in a court. As was said by Kirby P in John Fairfax Group v Local Court of NSW, supra, at 142 143:

'It has often been acknowledged that an unfortunate incident of the open administration of justice is that embarrassing, damaging and even dangerous facts occasionally come to light. Such considerations have never been regarded as a reason for the closure of courts, or the issue of suppression orders in their various alternative forms ...'

6 The plaintiff said in effect that the publication of the reasons for decision is likely to cause him more harm than the original publication of which he complains.

7 In J v L & A Services Pty Ltd (No 2) (1995) 2 Qd R 10 Fitzgerald P and Lee J stated the following guidelines:

1. Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.
2. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility. National security provides a further special, broadly analogous exception to the requirement of open justice because of its fundamental importance to the preservation of a democratic society based on the rule of law.
3. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
4. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
5. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

(a) Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information: cf R v Chief Registrar of Friendly Societies, Ex parte New Cross Building Society.

(b) A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c) An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed (44 45).

8 The publication of the reasons for judgment will not deprive the proceeding of practical utility. Prohibiting publication of the reasons is not necessary to ensure the proceeding is fair. Publication of the reasons may cause embarrassment and may be damaging to the plaintiff. However, that is not a sufficient reason for prohibiting publication of the reasons.

9 The practice of the court is to publish reasons for decision on the court's database and through that database, the internet. Practice Direction 8.2.1 applies to claims in respect of defamation. Paragraph 5 of the Practice Direction provides:

1. Where reasons for decision to which this Practice Direction relates

(a) have been published to the parties; or

(b) will be published to the parties,

A party or other person who has been or may reasonably expect to be identified in the reasons, may apply to the judicial officer for an order that the version of the reasons which are entered on the Court's database not identify that person, or if that is not practicable, for an order that the reasons not be entered on the Court's database.

10 The reasons delivered on 17 October 2012, [2012] WASC 386, address each of the five publications complained of. The reasons do not set out the words of which the plaintiff complains that were contained in the affidavit sworn by the defendant on 2 March 2011. That is the principal matter of which the plaintiff complained when applying for a suppression order. The reasons set out the words complained of, or some of them, in three of the publications complained of. That is necessary in order to adequately disclose the court's reasoning. The plaintiff complains that those matters are defamatory of him. However, they do not attribute to the plaintiff any criminal conduct or egregiously immoral or disgraceful conduct. It is clear from the judgment that the plaintiff denies the conduct attributed to him.

11 A decision not to enter the reasons on the court's database requires an exercise of discretion which depends upon the particular facts. A decision not to enter the reasons on the court's database should not be taken lightly. It has the effect of preventing public access to the reasons. I am not satisfied that there is sufficient reason not to enter the reasons for decision in [2012] WASC 386 on the court database.

12 The reasons for decision delivered on 22 June 2012, [2012] WASC 217, do set out the words in the affidavit sworn by the defendant on 2 March 2011 of which the plaintiff complains. Those reasons have now been available on the court database for approximately four months. The plaintiff informed the court that the reasons have been published on the Austlii database as well as on the court database. The plaintiff made no application at the time the reasons were published that they be suppressed or not entered on the court database. In these circumstances the court would only make an order that the reasons for decision be removed from the court database in extraordinary circumstances. Extraordinary circumstances have not been made out in this case. Furthermore, it is too late to try and get the genie back into the bottle.

13 The plaintiff's application for suppression orders in relation to the reasons for decision in [2012] WASC 217 and [2012] WASC 386 are dismissed.