McJANNETT -v- GIBBS [2012] WASC 369 (11 October 2012)

3 The matter came on for directions again on 28 February 2012. The defendants pressed their application to strike out the statement of claim and for summary judgment. I adjourned that application to 20 March 2012. On 20 March 2012 I directed the plaintiff to file and serve a minute of proposed amended statement of claim on or before 27 March 2012 and adjourned the defendants' applications to strike out the statement of claim and for summary judgment for hearing on 17 May 2012.

4 On 5 April 2012 the plaintiff filed a minute of proposed substituted statement of claim dated 4 April 2012. The matter came before the court on 17 May 2012. I gave the plaintiff leave to amend his statement of claim in accordance with the minute of proposed substituted statement of claim dated 4 April 2012 subject to the deletion of [15], [24] and [30], and the deletion of certain words from [29] and [33], and [1] of the prayer for relief. I gave the plaintiff leave to amend the statement of claim on or before 31 May 2012. I then heard the defendants' applications to strike out the statement of claim and for summary judgment. The argument proceeded on the assumption that the plaintiff's claim is that set out in his minute of proposed substituted statement of claim dated 4 April 2012 subject to the deletion of [15], [24] and [30], the deletion of certain words from [29] and [33], and [1] of the prayer for relief. I reserved my decision. The plaintiff did not amend his statement of claim in accordance with the leave granted on 17 May 2012 or at all. Nevertheless, I will determine this application on the basis that the plaintiff's claim is as set out in his minute of proposed substituted statement of claim dated 4 April 2012 subject to the deletions I have referred to.

5 I will summarise the statement of claim, assuming it to have been amended in accordance with the leave I granted on 17 May 2012. I will refer to the document as notionally amended as the statement of claim.

6 The plaintiff was employed at the Collgar Wind Farm in 2010 by Southern Cross Crane Hire Pty Ltd. The first defendant, Ms Gibbs, is and was employed by the second defendant, CCI. In September 2010 Ms Gibbs transmitted an email to Tony Grieve, site manager for Vestas Pty Ltd at the Collgar Wind Farm. Jason Sayers was employed by Catcon Pty Ltd as construction manager at the Collgar Wind Farm construction project. On or about 6 October 2010, Mr Sayers informed Craig Lawson of Southern Cross Crane Hire that a defamatory email about the plaintiff had been passed around the various offices of Vestas, Downer Pty Ltd and Catcon at the Collgar Wind Farm by Mr Grieve. Mr Sayers claimed the email alleged the plaintiff was a drug addict and union agitator and also had negative newspaper articles about the plaintiff attached from The West Australian newspaper. Mr Sayers said that Mr Grieve had shown the email to him and to the site manager for Downer and the safety manager for Downer and the site manager for Catcon. The plaintiff telephoned Ms Gibbs. Ms Gibbs admitted sending an email about the plaintiff with a newspaper article attached and stated that she did this to emphasise the need for the wind farm construction management to tighten up their drug testing policies.

7 The plaintiff pleads that in their natural and ordinary meaning the words in the email mean:

1. The plaintiff is addicted to drugs and usually illicit drugs.
2. The plaintiff is a union member who goes around causing dissent against the company or employer.

The plaintiff claims that the words of the email also mean, by way of innuendo, that the plaintiff:

1. is addicted to illicit drugs;
2. is someone with severe mental and/or physical afflictions;
3. is associated with crime and seedy underworld life who cannot be trusted;
4. is associated with theft in order to support his drug addiction;
5. union agitators have caused the deregistration of a number of building unions since 1980;
6. union agitators have given rise to the formation of the Australian Building Construction Commission over numerous illegal strikes and illegal industrial action;
7. a person who stirs up others in order to upset the status quo and further a political, social or other cause;
8. a machine or device for agitating and mixing; and
9. causes illegal strikes.

8 The plaintiff pleads that he had been employed in the construction industry for the whole of his working career since 1980. The plaintiff pleads that as a consequence of the matters complained of he has been seriously defamed and has suffered acute distress, hurt to his feelings, embarrassment and illness. Further, CCI is the largest employer body in the construction industry and the plaintiff has acute fear of returning to the industry and receiving further reprisals and defamation and damages at the hands of the defendants. The plaintiff says that his health has been affected and he has struggled to deal with a number of issues associated with his teenage daughter that would otherwise have been less traumatic and had better outcomes if he had not been subjected to the publications complained of. The plaintiff says he was admitted to hospital in January 2010 as a result of the stress caused by the defendant's defamation and discrimination. The plaintiff says that he cannot qualify for lifesaving treatment at Royal Perth Hospital for liver disease due to the relapse of depression partly caused by the actions of the defendants. The plaintiff says he ceased fulltime work in Perth on 28 April 2011 as a direct result of stress and the stress levels have been amplified by the publication of the email complained of. The statement of claim contains numerous other statements or allegations which it is not necessary to refer to at this time. The plaintiff claims damages including special damages.

9 The court may enter judgment for the defendant if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits or that the action should be disposed of summarily. The power to order summary judgment should be exercised with great care and should never be exercised unless it is clear there is no real question to be tried.

10 An application for summary judgment may be combined with an application under RSC O 20 r 19(1). In a combined application of this sort, the court is not confined by the manner in which the plaintiff has formulated his case on the pleadings and may consider the undisputed facts as well as the facts which are in dispute: Bride and Bride v Peat Marwick Mitchell [1989] WAR 383, 394.

11 The defendants' starting point is that despite the plethora of issues raised in the statement of claim the only cause of action in the indorsement of claim is a claim for damages for defamation, discrimination and libel arising out of the email sent by Ms Gibbs to Mr Grieve on 22 September 2010. The defendants say they have a defence of truth as well as a defence of qualified privilege to the pleaded causes of action. Accordingly, the defendants say there is no serious question to be tried on any cause of action raised by the plaintiff. The defendants submit that the statement of claim should be struck out and summary judgment entered for the defendants.

12 The defendants rely upon an affidavit sworn by Ms Gibbs on 7 March 2012. Annexed to Ms Gibbs' email is a thumb drive, or USB flash drive, containing an electronic version of the email which she says she sent to Mr Grieve on 22 September 2010. Ms Gibbs also annexes to her affidavit a printed version of the email. Ms Gibbs says that the content of both the electronic email and the printed version of the electronic email annexed to her affidavit is the entire content of the email she sent to Mr Grieve on 22 September 2010 and there was no earlier or subsequent email sent to Mr Grieve dealing with the issue the subject of the email. Ms Gibbs says she only sent the email to Mr Grieve and not to any other person or entity, other than to persons within CCI after the plaintiff had complained about the email. The printed copy of the email is as follows:

From: Linda Gibbs [Linda.Gibbs@cciwa.com]

Sent: Wednesday, 22 September 2010 1:44 PM

To: 'Tony Grieve'

Subject: Link to story

Hi Tony

Here are a couple of links to stories about the issue. According to one of my colleagues, he is a good crane operator, However, he may be a selfconfessed drug addict, which obviously has safety implications for the site.

http://www.theaustralian.com.au/news/nation/robertmcjannett-arrested-at-bali-airport-over-drugs/story-e6frg6nf-1225814494391

http://www.watoday.com.au/wa-news/unionist-mcjannett-reveals-bali-jail-terror-20100105-Irfn.html

http://www.watoday.com.au/wa-news/bali-drug-accused-mcjannett-calls-in-addiction-doctors-20100331-reog.html

http://www.watoday.com.au/wa-news/mcjannett-to-be-released-from-bali-prison-20100527-wglj.html

Kind regards

Linda Gibbs

Senior Employee Relations Consultant

Chamber of Commerce and Industry WA (Inc)

Phone: (08) 9365 7624

Fax: (08) 9365 7550

Email: linda.gibbs@cciwa.com.

13 Ms Gibbs swears that prior to sending the email she had one, and only one, telephone conversation with Mr Grieve in relation to this matter. Ms Gibbs swears that during the telephone conversation she said to Mr Grieve words to the effect that she had been made aware the plaintiff was on site as a crane operator working for Southern Cross Crane Hire, that he had been convicted for possession of marijuana in Bali and had been imprisoned for a period of time and that published news articles reported that his defence was that he was a drug user. Ms Gibbs says she said to Mr Grieve words to the effect that this led her to ask what was happening on the Collgar site in terms of the drug testing on site. She asked Mr Grieve whether Vestas were requiring premobilisation drug tests and if so whether the plaintiff had had one and whether he had passed the test. She said to Mr Grieve words to the effect that if the plaintiff had passed a drug test he had every right to be working but CCI needed to know there was a drug testing system and that the system was being adhered to. Ms Gibbs said to Mr Grieve that she had been told by a colleague that the plaintiff was a good crane operator. She said words to the effect that they did not want Catcon going off 'half cocked' or doing anything stupid such as terminating the plaintiff's employment and the matter had to be dealt with carefully. Ms Gibbs says that Mr Grieve requested she send him links to the news articles published on the internet concerning the plaintiff's trial in Bali and she subsequently sent the email with the links to those news articles.

14 The defendants rely upon an affidavit of Keeley Hayward sworn 3 April 2012. Ms Hayward is employed by CCI as general manager of human resources. Ms Hayward annexes to her affidavit printouts of the four electronic articles accessed from the four internet links attached to Ms Gibbs' email to Mr Grieve. The first article is from The Australian, dated 29 December 2009, and has the headline 'Unionist Robert McJannett arrested at Bali Airport over drugs'. The article says that Mr McJannett was arrested at Bali Airport after customs officers allegedly found 2 gm of Marijuana in his luggage. The article quotes an airport customs official as saying that Mr McJannett had initially been uncooperative and that:

He even ran with the marijuana and tried to flush it in toilet, but the officers managed to avoid it.

The article says that Mr McJannett is a Perth crane operator who made headlines last year when he tried to overthrow CFMEU assistant secretary Joe MacDonald in a union election and was still fighting the CFMEU leadership in the WA Industrial Relations Commission.

15 The second article appears to be from the WA Today website. It bears the headline 'Unionist McJannett reveals Bali Jail Terror' and the date 5 January 2010. The article refers to Schapelle Corby and the Bali Nine. The article purports to quote Mr McJannett as saying there was a prospect of a long jail sentence and 'it is terrifying the hell out of him'. The article refers to Mr McJannett being a candidate at CFMEU elections and says that Mr McJannett reportedly accused union officials of setting him up.

16 The third article also appears to be from the WA Today website. It is entitled 'Bali Drug Accused McJannett calls in Addiction Doctors' and is dated 1 April 2010. The article starts by stating:

Perth trade unionist Robert McJannett who is on trial in Bali for allegedly importing marijuana says he will call evidence from psychiatrists and doctors to prove he is an addict. If the move is successful, he could walk free from Kerobokan Prison within three months.

I am assured my medical evidence from two astute psychiatrists in Brisbane and numerous other doctors who treated me for cannabis addiction and the effects of same is very good, as touched on by (my) prosecutor.

The article says that in court the prosecutor described Mr McJannett as an addict who had used marijuana for more than 30 years.

17 The fourth article also appears to be from the WA Today website. It is entitled 'McJannett to be released from Bali Prison' and dated 27 May 2010. The article says that Mr McJannett will be released from a Bali prison on Friday after serving five months for drug offences. It says that Mr McJannett initially claimed he was the victim of a set up but later admitted the drugs were his. It is said the court sentenced him to five months jail including time already served. The article refers to Mr McJannett being a prominent trade unionist and former political candidate. It says that during his trial the court heard Mr McJannett had been using drugs for more than 30 years because it relieved stress and helped him sleep.

18 The plaintiff does not accept that the electronic and printed versions of the email annexed to Ms Gibbs' affidavit are accurate copies of the email sent by Ms Gibbs to Mr Grieve. The plaintiff says that the defendants have produced a wholly different email by manipulating the time stamp on a computer and then creating a forgery after which the computer was disposed of or the hard drive records deleted or both.

19 In her affidavit of 7 March 2012, Ms Gibbs says that after creating the email to Mr Grieve in her personal folder she subsequently moved the email on three occasions. On the first occasion she moved the email into a folder that she had created designated 'Collgar Wind Farm Project'. Subsequently, when the plaintiff complained about the email she created a file designated 'McJannett' and moved the email to that file. Subsequently, before she commenced leave she moved the email to an archived file.

20 Ernst Prandl is the information technology manager for CCI. He examined CCI's electronic email records including retrieving and restoring Ms Gibbs' mail box from the save tape, being the monthly save that was performed on 3 November 2010, being what appeared at that time, to be the first save after 22 September 2010. From an examination of those saved tapes Mr Prandl ascertained that Ms Gibbs sent an email on 22 September 2010 to Mr Grieve of Vestas. Mr Prandl annexed to his affidavit of 9 March 2012 a flash drive containing the electronic version of the email which was retrieved from the saved tapes at the time they were originally retrieved in December 2011. Mr Prandl says that from examining those saved tapes he was able to say that after Ms Gibbs sent the email on 22 September 2010 she moved the email from 'sent items', the general mail box associated with sent items in Microsoft Outlook, to another folder named 'Collgar Wind Farm Project' and subsequently to another folder. Mr Prandl says that if an email is not moved from 'sent items', the exchange server updates headers with the 'sent' information after a short period of time. This only occurs if the email remains in the 'sent items' mail box for a sufficient amount of time after sending. Whilst CCI performs data saves on a daily basis the only saved tapes that are kept for an extended period of time are the monthly saved tapes.

21 On 9 March 2012 Mr Prandl retrieved from the saved tapes a further save that was effected on 6 October 2010. From that Mr Prandl restored Ms Gibbs' mail box for the relevant period and interrogated it to determine if there are any logs that can verify the send details of the email in question. The interrogation did not reveal any additional information to the information contained in the electronic email annexed to his affidavit. Mr Prandl says that the date and time stamp on an email is embedded in that email message at the time of the production of the email. Whilst it is theoretically possible to alter the contents of an email without affecting this date and time stamp, any changes to the email using system functionality would require a forwarding or replying to the original email which would change the date and time stamp associated with the email. Mr Prandl says he does not have the ability to alter the contents of an email without affecting the date and the time stamp and to the best of his knowledge no one within CCI is capable of doing so. Mr Prandl said that from his examination of Ms Gibbs' mail box from that saved tape he was able to say that at no time subsequent to the email having been sent on 22 September 2010 had the date and time stamp associated with the email been altered. In accordance with CCI's usual work practices, when Ms Gibbs went on maternity leave, her personal computer was reissued to another member of staff. As part of that reissue the PC had all the data removed from it before passing it on. The PC that Ms Gibbs used at the time she sent the email on 22 September 2010 has subsequently been removed from CCI's premises as it was leased equipment and the lease ended.

22 In March 2012 the defendants' solicitors briefed Joseph Davies, an infrastructure engineer, to attend at the CCI offices to inspect their IT system and provide a report in relation to the email that was sent by Ms Gibbs on 22 September 2010. Mr Davies attended the CCI offices, examined their IT system, including the electronic mail system, and prepared a report dated 9 March 2012. Mr Davies was asked if the properties of the email were originally attached to it at the time the email was first sent and they are no longer present, what explanation can be given and what is the likely cause. In his report Mr Davies explains the steps that occur when sending an email using Outlook and concluded that the removal of the headers is expected and is not evidence that the email has been tampered with. Mr Davies was asked whether there is any other embedded information accessible in the CCI system that would enable him to state that the email, both in its printed and electronic version, as attached to Ms Gibbs' affidavit is the email that was sent to Mr Grieve and that it has not been tampered with in any manner so as to add or remove material to the email. Mr Davies replied:

No. Once the email has been taken out of the CCIWA exchange environment there is no definitive way to prove that the email is authentic. In this situation, the best proof available is in the email discovered in the restorations from 3rd November 2010 and 6 October 2010. This email matches the email originally provided to McJannett in content, time stamp and recipient list.

Mr Davies said there is no way in which the information that would be contained within the properties originally attaching to the email can be retrieved from the CCI system. Mr Davies said that after speaking with the IT staff at CCI all avenues to retrieve the information had been exhausted. Finally, Mr Davies was asked whether he was able to state that the email attached to Ms Gibbs' affidavit is the email sent by her to Mr Grieve on 22 September 2010. Mr Davies replied:

While I cannot say with absolute certainty, given the behaviour of the CCIWA email system (which is consistent with normal operation), and all other information available, I find it highly likely that the email attached to Gibbs' affidavit to be the same email sent by Gibbs to Grieve on 22 September 2010 due to the matching content, time stamp and recipient list.

23 Mr McJannett relies upon an affidavit of John Burrell, an IT expert. Mr Burrell examined Ms Gibbs' affidavit including the electronic thumb drive that contains the purported electronic version of an email and the affidavit of Mr Prandl. Mr Burrell issued a report in which he said:

1. Looking at the electronically supplied thumb drive it is impossible to prove that it is a genuine version of an email that has ever been sent.
2. Given the history advised as to the handling of the email message and investigations done, there is no way possible at this stage to prove that either the electronic or printed versions are genuine representations of an original email message.
3. Without full system backups from the time in question there is no way to determine the validity of the electronic version of the email being a 100% replication of the original message.

Mr Burrell was then provided with a copy of Mr Davies' affidavit and annexures. Mr Burrell concluded:

With the incomplete nature of the backup records in this case ie no message tracking or hub transport logs for the date of the email, there is no ability to confirm the factuality of the email exhibits [to the affidavit of Ms Gibbs].

24 At trial the plaintiff must prove each of the elements of his cause of action. The indorsement of claim on the writ claims damages for defamation and discrimination arising out of the email the defendant sent to the plaintiff's workplace in 2010. In its terms the indorsement refers to a single email. In [4] of the statement of claim the plaintiff says that Ms Gibbs transmitted 'an unsolicited defamatory email and further emails to Tony Grieve'. Paragraph 7 of the statement of claim says that 'a defamatory email' was passed around at the Collgar Wind Farm by Mr Grieve. Paragraph 9 of the statement of claim says that the informant, Mr Sayers, stated 'the email was sent by Linda Gibbs ...'. Paragraph 11 of the statement of claim says that the informant disclosed that Mr Grieve had shown 'the email' to the informant.

25 In her affidavit Ms Gibbs says that she sent only one email on this subject to Mr Grieve the email of 22 September 2010 annexed to her affidavit. There is no evidence of any other email having been sent by Ms Gibbs to Mr Grieve. For the purposes of the defendants' summary judgment application I find that Ms Gibbs sent only one relevant email to Mr Grieve and that was on 22 September 2010.

26 As the core of the plaintiff's claim is the defamatory words published about him in the email, he should produce the document as evidence of the defamation. There may be room for argument as to what constitutes the original document. It might be an electronic copy of the email. However, the original document, whatever that might be, is not the only way to adduce into evidence the contents of an email. Evidence Act 1906 (WA) s 73A provides that a copy is admissible in evidence if it accurately reproduces the contents of the original document. At common law secondary evidence of the contents of a document may be given in certain circumstances such as where the original of a document cannot be found after due search or the production of the original may be physically impossible. Secondary evidence may take the form of all manner of different types of copy. Secondary evidence may include oral evidence of the contents of a document.

27 On the hearing of this interlocutory application the defendants have produced evidence of the email in the form of an electronic copy reproduced from a saved tape forming part of CCI's electronic email records. The plaintiff disputes the authenticity of the electronic copy of the email produced by the defendants. However, the plaintiff has produced no evidence that the copies produced by the defendants are not authentic copies of the original email or that the original email has been tampered with in any way. Mr Davies' evidence is that it is highly likely that the email attached to Ms Gibbs' affidavit is the same email sent by her to Mr Grieve on 22 September 2010. Mr Burrell does not question that opinion. Mr Burrell says no more than the electronic records available to him do not enable him to confirm with certainty the authenticity of the copy of the email produced by Ms Gibbs. The plaintiff has produced no evidence of the contents of the email. The plaintiff has not, either in his pleadings or in any affidavit, set out what he alleges to be the contents of the email. The plaintiff says only that Mr Sayers claimed the email alleged the plaintiff was a drug addict and union agitator. There is no evidence that Mr Sayers saw a copy of the email. The statement of claim says that Mr Sayers claimed the email alleged the plaintiff was a drug addict and union agitator but does not state the source of Mr Sayers' knowledge of the contents of the email.

28 The defendants admit that they published to Mr Grieve the email annexed to Ms Gibbs' affidavit. The email stated that the plaintiff 'may be a selfconfessed drug addict which obviously has safety implications for the site'. The email also contained hyperlinks to, or the web addresses for, the four articles I have referred to. The plaintiff has not, in terms, pleaded that Mr Grieve accessed the articles by the hyperlinks or otherwise. If Mr Grieve did so then it is arguable that the defendants are responsible for the republication of those articles to Mr Grieve.

29 The indorsement on the writ outlines three causes of action defamation, discrimination and libel. The distinction between slander and libel has been abolished by the Defamation Act 2005 (WA) s 7. There is now only one tort, that is, defamation.

30 The Commonwealth has enacted laws that make certain kinds of discrimination unlawful. The Equal Opportunity Act 1984 (WA) makes it unlawful to discriminate on a number of grounds. This court does not have jurisdiction to deal with complaints of discrimination under the Commonwealth legislation or the Equal Opportunity Act. There is no common law action for discrimination. The plaintiff's claim must fail insofar as it relies on a cause of action for discrimination.

31 The plaintiff has raised only one cause of action an action in defamation. In his statement of claim the plaintiff refers to an email transmitted by Ms Gibbs to Mr Grieve in September 2010. The statement of claim also refers to 'further emails to Tony Grieve'. The statement of claim also says that a defamatory email about the plaintiff had been passed around the various offices of Vestas, Downer and Catcon at the Collgar Wind Farm by Mr Grieve. However, the indorsement of claim on the writ mentions only claims 'arising out of the email the defendant sent to the plaintiff's workplace in 2010'. A statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned: RSC O 20 r 2(2). The only cause of action mentioned in the writ is that arising out of the sending of the email by the defendants to the plaintiff's workplace in September 2010. The indorsement clearly refers to only one email. In any event, although [4] of the statement of claim refers to 'further emails to Tony Grieve' the further emails are not referred to elsewhere in the statement of claim. In this action the plaintiff is confined to claims arising out of the email sent by the defendants to the plaintiff's workplace. The statement of claim refers to the email having been passed around the various offices of Vestas, Downer and Catcon at the Collgar Wind Farm by Mr Grieve. Each republication of the email by Mr Grieve gives rise to a new cause of action. The defendants may be liable for those republications if they are legally responsible for the republications. It is arguable that the indorsement of claim is wide enough to cover those alleged republications. However, the plaintiff has not pleaded in his statement of claim that the defendants are responsible for the republication of the email by Mr Grieve, or the facts giving rise to that responsibility.

32 The thrust of the defendants' argument is that they have a good defence of truth. The defendant's argument is in essence as follows. The information contained within the news articles is true. The plaintiff admitted to the District Court at Denpasar (Denpasar Court) that he is a marijuana addict, that he used marijuana and he brought marijuana into Indonesia. The defendant relies upon a copy of the written judgment of the Denpasar Court dated 6 May 2010 by which the court found the plaintiff guilty of using narcotics for personal use and sentenced him to 5 months' imprisonment.

33 A copy of the judgment is annexed to the affidavit of Vance Franklin sworn 24 April 2012. Mr Franklin also annexes to his affidavit an English translation of the judgment. I received the judgment into evidence as an exhibit under Evidence Act 1906 (WA) s 80 on the basis that the document annexed to Mr Franklin's affidavit purports to be a copy of a judgment or other judicial proceeding of a court in Indonesia and purported to be sealed with the seal of the court and purported to be certified as a true copy by a registrar of the court. Mr Franklin also annexed to his affidavit a copy of an English translation of the judgment certified by a National Accreditation Authority for Translators and Interpreters (NAATI) accredited professional level translator to be a true and accurate translation of the judgment in Indonesian.

34 The judgment has a number of parts. First, there is a summary of the details of the defendant, the charges and the verdict. Second, there is a detailed account of the charges brought by the prosecutor including the detailed facts alleged by the prosecutor. Third, there is a summary of the testimony of the witnesses. Fourth, there is the defendant's response to the statements of the witnesses, including a summary of the defendant's testimony. Fifth, is the court's findings of fact. Sixth, the court sets out considerations before passing sentence. Seventh, is the formal judgment of the court.

35 There is a question whether the 'judgment ... or other judicial proceeding of any court' extends to the whole of the document which is annexed to Mr Franklin's affidavit and which is entitled 'Judgment District Court of Denpasar' including its summary of evidence and findings of fact or is confined to that part of the document which records the decision of the court, the conviction of the defendant and the sentence imposed but does not include the court's reasons for judgment or any summary of the testimony or other evidence before the court. In Cvetkovic v The Queen [2010] NSWCCA 329 Campbell JA (Simpson & Whealy JJ agreeing) stated at [306] that he preferred to reserve for further consideration whether 'a judgment' in Evidence Act 1995 (NSW) s 157, which is the corresponding provision of the New South Wales Act, extends to reasons for judgment. The parties did not make any submissions on this issue. For that reason I prefer to reserve for a later time consideration whether 'judgment ... or other judicial proceeding of any court' in Evidence Act s 80 extends to the summaries of testimony and findings of fact in the judgment of the Denpasar Court.

36 It is necessary to distinguish between whether evidence is admissible and, if it is, by what means it is to be proved. Evidence Act s 80 deals with proof of judgments, not their admissibility. A judgment of a foreign court is provable, as opposed to admissible, under Evidence Act s 80. If the judgment of a court is admissible as evidence then s 80 enables the judgment to be proved by production of a document purporting to be a copy of the judgment and fulfilling one of the conditions specified in s 80(a) to (d). The question remains whether the judgment is admissible in evidence.

37 In Cvetkovic v The Queen Campbell JA did not accept that s 157 of the New South Wales Act provided a standalone ground for the admissibility of reasons for judgment. His Honour said at [315] that s 157 is concerned with facilitation of proof of facts that are otherwise relevant and admissible. His Honour held that the effect of the provisions of the New South Wales Act is that evidence, being hearsay, is admissible only if it can be brought within one of the exceptions to the hearsay rule.

38 The admissibility of prior convictions in subsequent civil proceedings has been considered by the courts on many occasions. In Mickelberg v Director of Perth Mint [1986] WAR 365 the Full Court of this court held that a relevant conviction is admissible evidence and once proved is prima facie evidence that the person did commit the offence of which he was found guilty, leaving to the person so convicted to establish to the contrary if he can. The decision in Mickelberg with respect to the admissibility of a conviction as evidence of the facts giving rise to the conviction has been consistently followed in this jurisdiction: see Bennett v The State of Western Australia [2012] WASCA 70 [64] (Martin CJ). In Bennett v State of Western Australia Martin CJ said that if a conviction obtained after trial is admissible as evidence of the occurrence of the facts constituting commission of the offence by the offender, a question may arise as to whether those facts are incontrovertible, in the sense that no party can lead evidence intended to undermine or collaterally attack the correctness of the conviction. Martin CJ referred to three decisions of the High Court. In those cases the question of the finality of a judgment was important. That principle appears to not apply in relation to the judgment of a foreign court. The preferable view is that if a conviction obtained after trial in a foreign court is admissible as evidence of the occurrence of the facts constituting commission of the offence by the offender it is not incontrovertible; that is, the offender may establish if he can, that the facts constituting the offence did not occur.

39 The Defamation Act 2005 (WA) s 42 facilitates the proof in civil proceedings for defamation of criminal convictions. Section 42(1) provides that if the question whether or not a person committed an offence is in question in defamation proceedings, proof that the person was convicted of the offence by a foreign court is evidence, but not conclusive evidence, that the person committed the offence. Section 42(2) provides that the contents of a document that is evidence of conviction of an offence are admissible in evidence to identify the facts on which the conviction is based. The judgment of the Denpasar Court is a document that is evidence of the plaintiff's conviction for the offence of narcotics abuse. The contents of the judgment are admissible in evidence to identify the facts on which the conviction are based.

40 The judgment of the Denpasar Court is evidence that the plaintiff was convicted of abuse using category 1 narcotics for his own purposes contrary to the laws of Indonesia. It is also evidence that the court sentenced the plaintiff to 5 months' imprisonment. The judgment is also evidence of the facts constituting the elements of the offence. There are three elements. The first is that the plaintiff is an abuser, that is a person who uses narcotics without having the right to do so or in violation of the law of Indonesia. The second element is that the plaintiff is an abuser of narcotics category 1, which includes delta9tetrahydracannabinol, which is the metabolite of marijuana. The third element is that the plaintiff has used narcotics for personal use.

41 The defendants rely on the judgment to establish not only that the plaintiff has been convicted of being, and has been, a person who uses marijuana for personal use without having the right to do so in violation of the law of Indonesia but also upon other parts of the judgment of the Denpasar Court. In the section of the judgment which sets out the accusations of the prosecutor it is stated that there was evidence that blood and urine from the plaintiff contained an amount of narcotics which is the metabolite of marijuana. That is hearsay. It does not fall within any of the recognised exceptions and is inadmissible. The defendants relied upon the statements in the judgment of the testimony given by the plaintiff. That is an admission made by the plaintiff and is admissible evidence against him. The defendants rely upon the statement of the court of the contents of medical reports supplied to the court. They are hearsay and inadmissible.

42 The judgment of the Denpasar Court records that the defendant gave testimony which essentially was as follows:

It is true that the defendant has used marijuana since the year 1978, when still an active solider, and the defendant obtained the marijuana by purchasing it at a cost of 25 dollars;

It is true that the defendant last used marijuana on 27 December 2009 because of depression and being able to sleep and that after using marijuana is able to forget his problems;

It is true that I am a marijuana addict and that at this time I am still undergoing rehabilitation from Doctor Andrew S B Davidson, Doctor Rees, Doctor D Appleton, Doctor R Kumar;

It is true that the defendant brought marijuana into Indonesia for personal use during 5 (five) days in Indonesia.

That evidence, together with the evidence of his conviction by the Denpasar Court, is evidence that the plaintiff is a drug addict.

43 The plaintiff swore an affidavit on 2 May 2012 in which he verifies the statements contained in an attached outline of submissions. The plaintiff says that he was not treated for drug addictions at any time. He says that none of the medical practitioners mentioned in the Denpasar Court judgment were treating him for drug addiction. He says that all of those medical practitioners, except for Dr Ollie Waters, were treating him for chronic depression and other matters related to domestic issues. The plaintiff makes many allegations of corruption against lawyers, police and custom officers in Bali. The plaintiff says, in effect, that the custom officials fabricated the evidence that they found drugs on him at the airport. The plaintiff says that his Bali lawyer told him that in order to reduce the charges the plaintiff should pretend that he was a drug addict and claim he was being treated for cannabis addiction. The plaintiff said he agreed to contact doctors and try to obtain a suitable document. The plaintiff says he contacted a number of GPs, psychiatrists and psychologists that had been treating him for chronic depression, Meniere's disease and hepatitis and pleaded with them to fabricate a document that suggests he might have had an addiction at some stage. The plaintiff says that all doctors refused this request apart from one psychiatrist who treated him in 1998 for domestic issues. This doctor stated that he did recall the plaintiff had mentioned cannabis abuse and subsequently sent a letter to the Bali lawyer that mentioned something about or alluded to cannabis addiction. All other doctors sent in their treatment records showing extensive and continuous treatment for depression, Menieres' disease, diverticulitis and hepatitis. The plaintiff says he is not, and was not, and never has been a drug addict.

44 The plaintiff has sworn on oath that he is not and never has been a drug addict. He says that he did not understand the proceedings in the Denpasar Court which were conducted in Indonesian and just said what he was told to say. The court should not grant summary judgment unless it is clear that there is no real question to be tried. The plaintiff's allegations of what occurred in Bali and in the Denpasar Court are very serious. They are not supported by any other evidence or document. Nevertheless, the plaintiff has sworn on oath that he is not and never has been a drug addict and, in effect, that the evidence relied upon by the Denpasar Court was fabricated or otherwise corrupt. I am not satisfied that there is no real question to be tried. Insofar as the defendants' application for summary judgment is based on the defence that the imputation that the plaintiff is a drug addict is true, the application fails.

Imputation that the plaintiff is a union agitator

45 There is no evidence that the defendants published an email alleging, or giving rise to the imputation that the plaintiff is a union agitator. The email contained hyperlinks to, or internet addresses for, the four news articles referred to earlier in these reasons. The article from The Australian said that the plaintiff had made headlines last year when he tried to overthrow CFMEU's assistant secretary Joe MacDonald in a union election and was still fighting the CFMEU leadership in the WA Industrial Relations Commission. The first article from WA Today also refers to the plaintiff standing for election as a candidate for Assistant Secretary of the CFMEU and says that he lost in vitriolic campaigns to incumbent and long time union heavyweight Joe MacDonald. The article attributes to the plaintiff statements that the CFMEU was not helping him because they hate his guts. The second WA Today article referred to the plaintiff as a Perth trade unionist. The final article refers to the plaintiff as a prominent trade unionist and former political candidate. None of that is capable of giving rise to the imputation that the plaintiff is a union agitator or any of the other imputations to the effect that he has caused illegal strikes or illegal industrial action or caused the deregistration of building unions.

46 Each of the defendants plead that the email was published by the defendants to Mr Grieve in circumstances of qualified privilege and on a qualified occasion. The defendants plead as follows. Ms Gibbs was a qualified legal practitioner. Vestas was a client of CCI and Ms Gibbs was engaged in providing legal advice to Vestas in relation to site safety. Mr Grieve had an interest in receiving the email. The email was published to Mr Grieve in the course of providing advice on site safety. It was reasonable for Ms Gibbs in the circumstances to publish the email to Mr Grieve.

47 In opposition to the defendants' applications the plaintiff relevantly says as follows. The plaintiff was employed by Southern Cross Crane Hire, not Vestas or Catcon. Vestas was an employer at the Collgar Wind Farm project with its own workforce. The plaintiff was not involved in the work carried out by Vestas at the Collgar Wind Farm. The defendants failed to contact Southern Cross Crane Hire or the principal contractor to Southern Cross Crane Hire, Catcon, in order to discuss any issues regarding the plaintiff's employment, union background or alleged drug addiction. Southern Cross Crane Hire and Catcon were not members of CCI. The defendants were aware of their obligation to contact the plaintiff's employer directly regarding any perceived industrial issues and not to do this via third parties.

48 In answer to the defendants' claim of qualified privilege the plaintiff says as follows. The defendants were not at any time contracted to Catcon or Southern Cross Crane Hire to provide legal or other advice. Downer oversaw the conduct on site of matters of industrial safety concerning Downer, Catcon and Southern Cross employees and other minor contractors. At no time were Catcon or Southern Cross Crane Hire contracted to Vestas. Catcon were at all times contracted to Downer and Southern Cross Crane Hire was contracted to Catcon. The defendants used their position with Vestas to attempt to damage the employment, health and reputation of the plaintiff. Vestas was not the principal contractor.

49 I am not satisfied that the defence of qualified privilege is bound to succeed for a number of reasons. First, the defendants plead that they were engaged in providing legal advice to Vestas in relation to site safety. They further say that the email was published to Mr Grieve in the course of providing advice on site safety. In her affidavit Ms Gibbs says that she sent the email to Mr Grieve in the course of providing professional legal advice to Vestas in relation to safety on the site of the Collgar Wind Farm. That may be so but it is not obvious from the terms of the email that Ms Gibbs was providing legal advice, as distinct from more general industrial or health and safety advice. Second, it is not clear beyond argument that Ms Gibbs had a duty or interest to provide the information in the email to Mr Grieve or that Mr Grieve had an interest in receiving it. It is common ground that the plaintiff was employed by Southern Cross Crane Hire. It is not clear beyond argument that Mr Grieve or Vestas had responsibility for industrial health and safety on the Collgar Wind Farm site and the employees or contractors working on the site. Third, although the plaintiff has not filed a reply alleging malice it appears from his affidavit that he alleges that the email was sent for an improper purpose. For those reasons I am not satisfied that the defence of qualified privilege is bound to succeed.

50 I am not satisfied that the defendants' defences of truth or qualified privilege are bound to succeed. I am not satisfied that there is no real question to be tried. The defendants' application for summary judgment is dismissed.

51 On 30 December 2011 the plaintiff filed an amended statement of claim. The defendants subsequently pressed to strike out the statement of claim. The defendants' application was adjourned to 17 May 2012. Prior to the hearing on 17 May 2012 the plaintiff filed a minute of proposed substituted statement of claim dated 4 April 2012. On 17 May 2012 I gave the plaintiff leave to amend his statement of claim in accordance with the minute of proposed substituted statement of claim dated 4 April 2012 subject to the deletion of the paragraphs I have referred to. The plaintiff did not amend his statement of claim in accordance with the leave I granted. The existing statement of claim is the amended statement of claim of 30 December 2011. That statement of claim should be struck out for the following reasons.

52 Paragraph 1 pleads that the plaintiff is not working due to illnesses exacerbated by the defamation and discrimination carried on by the defendants and has not worked fulltime since 28 April 2011. That paragraph should be struck out for two reasons. First, there is no common law action for discrimination. Second, it is embarrassing. It does not say that the plaintiff has been unable to work because of the defamation. It may be that the plaintiff has been unable to work because of the illnesses not because of their exacerbation caused by the defamation.

53 Paragraph 2 pleads that the plaintiff was employed at the Collgar Wind Farm by Southern Cross Crane Hire when a series of defamatory and discriminatory emails were sent to his workplace by the defendants. The statement that a series of defamatory and discriminatory emails were sent to his workplace by the defendants is embarrassing. The statement of claim must specify each publication sued upon and must properly identify each publication.

54 Paragraph 4.3 pleads that CCI is the custodian of personal information about employees which falls under the jurisdiction of the Privacy Act 1988 (WA). That is irrelevant and embarrassing.

55 Paragraph 5 pleads that in or about September 2010 Ms Gibbs transmitted an unsolicited defamatory email and further emails to Vestas Management at the Collgar Wind Farm. That is embarrassing. The statement of claim must properly identify each email sued upon.

56 Paragraphs 6 to 11 contain a discursive narrative about communications between 'an informant', Mr Craig Lawson, the plaintiff and other unidentified people concerning the email or emails and its contents. That is embarrassing. The statement of claim must plead each publication complained of by properly identifying each publication. The plaintiff must set out the words of the publication complained of. If the plaintiff complains of any republications then each alleged republication must be properly identified and the facts giving rise to the defendants' responsibility for the republication should be pleaded.

57 Paragraphs 12 to 14 relate to communications between the plaintiff and the defendants. They are in the nature of evidence rather than material facts. The sentence in [14] that pleads that the defendants have sought to destroy evidence in contravention of the Criminal Code is scandalous and embarrassing.

58 Paragraph 15 refers to discrimination. There is no such cause of action.

59 Paragraphs 16 and 17 refer to communications with or investigations by the Information Commissioner and the Human Rights Commission. That is irrelevant and embarrassing.

60 Paragraph 18 refers to discrimination. It is irrelevant and embarrassing.

61 Paragraph 20 pleads irrelevant and embarrassing matters concerning Southern Cross Crane Hire.

62 Paragraph 21 pleads defamation, discrimination and harassment. Discrimination is not a cause of action. The harassment is unspecified and embarrassing.

63 Imputations are pleaded in [22] in a defective way. First, they refer indiscriminately to an email exchange and telephone conversations. Each publication must be dealt with separately. Second, the material complained of is not capable of giving rise to the imputation that the plaintiff is a union agitator.

64 Paragraphs 23 and 24 plead innuendo meanings. They are false innuendos and are embarrassing.

65 Paragraphs 25 to 29 contain irrelevant allegations.

66 Paragraphs 32 and 33 plead damages in a way that fails to properly particularise the damage and its causation by the publication complained of.

67 The prayer for relief claims exemplary damages which cannot be claimed: Defamation Act 2005 (WA) s 37.

68 I granted the plaintiff leave to amend his statement of claim in accordance with the minute of proposed substituted statement of claim dated 4 April 2012, subject to the deletion of certain paragraphs. I did so, so that the defendants' application to summarily dismiss the plaintiff's action could be determined in accordance with the plaintiff's preferred pleading. The plaintiff did not amend his statement of claim in accordance with the leave granted. That leave has now expired.

69 The plaintiff should be given leave to replead if he seeks it. However, I would not grant leave to amend in accordance with the minute of proposed substituted statement of claim dated 4 April 2012 even with the deletion of [15], [24] and [30] and the words indicated in [29] and [33], and [1] of the prayer for relief. There are substantial deficiencies in the proposed substituted statement of claim. In particular, the plaintiff must properly identify the publication of which he complains. If he complains of more than one publication then each publication must be properly identified. If the plaintiff claims the defendants are responsible for any republications then each republication must be properly identified and the plaintiff must plead facts which make the defendants responsible for the republication. The plaintiff must set out the words of the publication complained of. The plaintiff must plead the imputations he alleges arises from the publication, or publications, complained of. Each pleaded imputation must contain a single imputation. If the plaintiff alleges that the words gave rise to some meaning by way of innuendo then the plaintiff must plead the extrinsic facts giving rise to the innuendo and the persons to whom the words were published who knew of those facts.

70 The defendants' application for summary judgment is dismissed. The plaintiff's amended statement of claim dated 29 December 2011 and filed 30 December 2011 is struck out.

CITATION : McJANNETT -v- GIBBS [2012] WASC 369 (S)

1 In [43], second sentence, insert 'material' after 'any' and before 'time'.

2 In [43], final sentence, insert 'at any material time' after 'addict'.

3 In [44], first sentence, insert 'at any material time' after 'addict'.

4 In [44], sentence six, insert 'at any material time' after 'addict'.