Supreme Court of WA|2001-02-13|Before: Steytler J, Hasluck J

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2001] WASC 33 (13 February 2001)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MICKELBERG & ANOR -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2001] WASC 33

Defamation - Pleadings - Application for leave to amend claim - Whether claim should be struck out - Sufficiency of identification plea - Sufficiency of imputations plea - Aggravated and exemplary damages

Supreme Court Rules, O 20 r 19(1)(a) and (c), O 21 r 5

Application for leave to amend refused with leave to replead allowed

Birmingham v West Australian Newspapers Ltd [1999] WASC 19

Bjelke-Petersen v Warberton (1987) 2 Qd R 465

Braddock v Bevins [1948] 1 KB 580

Bruce v Odhams Press Ltd [1936] 1 KB 697

Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37

David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234

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

Mann v The Medicine Group Pty Ltd [1992] FCA 524; (1992) 38 FCR 400

McCormick v John Fairfax and Sons Ltd (1989) 16 NSWLR 485

Pollack v Volpato [1973] 1 NSWLR 653

Pryke v Advertiser Newspapers Ltd (1984) 37 SASR 175

Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472

Ronci v Nationwide News Pty Ltd & Anor, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

Sanders v Snell (1997) 73 FCR 569

Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264

Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497

Vitale & Ors v Bednall and Wesley College [2000] WASC 207

1 HASLUCK J: The first and second plaintiffs, Peter and Simone Mickelberg, claim damages for libel against the first, second and third defendants for defamatory words uttered in a radio interview between the second defendant, Paul Murray, and the third defendant, Richard Court, broadcast by the first defendant, 6PR radio station, on or about 18 April 2000, in Perth in the State of Western Australia. The radio interview was conducted by Mr Murray, who is a presenter employed by 6PR. The third defendant is the Premier of the State of Western Australia and was an invited guest on Mr Murray's radio programme.

2 The writ of summons in this matter was issued on 14 September 2000, bearing an indorsement of claim. The plaintiffs, who are representing themselves, filed a statement of claim on the same date. The plaintiffs later sought to rely upon an amended statement of claim.

3 On 24 October 2000, the first and second defendants filed and served a chamber summons to strike out the amended statement of claim pursuant to O 20 r 19(1)(a) and (c) and the inherent jurisdiction of the Court on the grounds that the claim disclosed no reasonable cause of action and/or on the ground that it might prejudice, embarrass or delay the fair trial of the action. These defendants, in the alternative, sought to strike out certain specific paragraphs on the same basis, that is to say, par 7, par 9, par 10, par 11, par 13 to par 18 on the grounds that a reasonable cause of action was not disclosed and par 10(a) and par 12 to par 18 pursuant to O 20 r 19(1)(c).

4 The third defendant made a similar application, save that the specific paragraphs of the claim said to affect the third defendant were par 8, par 9, par 11 and par 13(a)(i) to (iii).

5 The plaintiffs then applied for leave to amend the statement of claim in terms of a minute of proposed amended statement of claim filed 13 November 2000. I note in passing that the original numbering and structuring of the statement of claim is preserved (save for the introduction of a new par 5A), but various pleas are added by way of further subparagraphs. In regard to damages, two new paragraphs, par 13A and par 13B, are also added. For ease of reference, I will call this minute the proposed statement of claim or claim as the context permits.

6 The defendants oppose the plaintiffs' application for leave to amend. Counsel for the defendants recognise that by O 21 r 5 of the Supreme Court Rules, the Court may allow any party to amend his pleadings. They contend, however, that the Court will not usually grant leave to amend a pleading into a form which ought to be struck out. See Seaman Civil Procedure at par 21.5.4.

7 The parties filed lengthy written submissions. It became apparent at the hearing before me that the plaintiffs and counsel for the defendants were prepared to proceed upon the basis that the application for leave to amend and the applications to strike out should be dealt with concurrently. This meant that debate was directed to the adequacy of the proposed statement of claim in terms of the plaintiffs' minute dated 13 November 2000. Accordingly, against this background, I will treat the proposed statement of claim as the appropriate point of reference and deal with the applications before me upon that basis.

8 I note in passing that in regard to pleading issues, the Court generally proceeds upon the basis that the facts alleged in the statement of claim are accepted as true. Accordingly, for that reason, I put to one side lengthy affidavits filed by the plaintiffs principally directed to publicity concerning the events the subject of the radio interview. These affidavits arguably had a limited relevance to the application for leave to amend.

9 In summary, then, I have before me an application by the plaintiffs for leave to amend in terms of the proposed statement of claim and applications by each defendant to strike out the claim on the grounds that it fails to disclose a reasonable cause of action or contravenes O 20 r 19(1)(c) either in its entirety or in regard to the specific paragraphs mentioned earlier.

10 It will be useful to begin by looking briefly at the structure of the proposed statement of claim.

11 The plaintiffs say in par 1 that they are husband and wife and have two children. The interview complained of is briefly described in par 5. The new par 5A asserts that immediately prior to the interview radio 6PR broadcast some introductory words to the effect that in the courts Raymond Mickelberg faces sentencing over cannabis charges this morning, these words being called the introductory words. The effect of par 6 is that Mr Court knew at the time he participated in the interview that the interview was being broadcast live on radio and intended that the interview should be so broadcast. The plaintiffs set out in par 7 a transcript of the interview which is said to contain the words complained of.

12 The first question to be addressed on a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of. Accordingly, it will be useful to touch upon one or two key passages of the transcript.

13 Mr Murray began by saying that he wanted to raise with the Premier "the Mickelberg matter that's been around for most of the last couple of days." The issue was whether it was appropriate for one of Mr Court's colleagues to have written character references "for one of the State's most notorious criminals." Mr Court endeavoured to put matters in perspective by saying that "these people were found guilty of offences and went to gaol and did their time." He then made several references to "the Mickelbergs" and it was in that context he noted that "these people apparently wanted to go and start again in New Zealand and some members of parliament provided support for that to occur."

14 Later, Mr Murray observed that "there's no question of rehabilitation here; these people are recidivist offenders". It was apparent from the context that he was referring to offences "before the Perth Mint swindle" and then there was "the Yellow Rose of Texas swindle." He added: "We know a lot about them."

15 After some discussion, Mr Court referred to this latest incident and went on to say that "if they've gone and told members of parliament they're back on track when they know that they've been involved with drugs, that is totally unacceptable and those people shouldn't be given the time of day." Exchanges between the interviewer and Mr Court included reference to deceit in the context of discussion about "the Mickelbergs" or "these people".

16 The plaintiffs plead in par 7A and par 8 that the words were reasonably understood to refer to Peter Mickelberg by reason of various facts and matters that are then set out, including principally that the first plaintiff and his brothers, Raymond and Brian Mickelberg, were in 1983 convicted of criminal offences in relation to the matter generally known as the Perth Mint Swindle. In early 1984, the first plaintiff and his brother, Raymond Mickelberg, were convicted of conspiracy to defraud in relation to a matter known as the Yellow Rose of Texas case. Various appeals were associated with these convictions.

17 The plaintiffs say in par 9 that the words were reasonably understood to refer to Simone Mickelberg by reason that the words taken as a whole refer to the Mickelberg family and it was known that as Simone Mohr she had married Peter Mickelberg on 30 November 1991.

18 The plaintiffs say in par 10 that in their ordinary, natural meaning the verbal statements made by the second defendant and forming part of the words conveyed the meanings reflected in the imputations set out in that paragraph. They say that the words used by the third defendant conveyed the imputations set out in par 11.

20 An imputation will be defamatory if it tends to lower the plaintiff in the estimation of right-thinking members of the community. The first question to be addressed upon a striking-out application will often be whether the pleaded imputations can be said to arise from the words complained of. If so, the next question will be whether the words complained of are capable of conveying a meaning defamatory of the plaintiff.

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

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

23 In deciding whether or not words are capable of conveying an allegedly defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation and will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction: See Lewis v Daily Telegraph Ltd [1964] AC 234 at 258 - 259 and Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1 at 7. An imputation should represent the final distillation of the alleged defamatory meaning. See Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 at 15.

24 Many cases of defamation arise from statements which connect the plaintiff in some way with criminality but a statement that a person is under suspicion or has been charged is not necessarily defamatory because an ordinary reasonable reader is likely to keep in mind the presumption of innocence. Gatley on Libel and Slander (9th ed) par 3.25; Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301.

25 A plaintiff who seeks to rely on an innuendo meaning has to plead and prove the facts or circumstances which gave the words a special meaning. He has also to prove that the words were published to one or more persons who knew these facts or circumstances. Where identification is an issue, the matter can sometimes be decided by construing the words themselves in their context. Where identification depends on extrinsic facts, these extrinsic facts must be pleaded because they form part of the cause of action. Duncan and Neill on Defamation (2nd ed) par 6.04.

26 Gatley (supra) has this to say concerning identification of the plaintiff at par 26.25:

"It is an essential part of the plaintiff's case to show that he is the person referred to by the defamatory words. Accordingly, where it is not absolutely clear on the face of the words that they refer to the plaintiff, e.g. where he is described by his initial letters, or by a fictitious name, or by the name of somebody else, or where he is not mentioned at all, the plaintiff should make clear in his pleading the basis on which he claims to have been identified as the subject of the words complained of. He should set out the connecting facts which establish the link between himself and the words used, and he should make plain his case as to the existence of a person or persons who in fact linked him with the words by reason of their knowledge of those connecting facts. These matters are material facts which must be pleaded. If the plaintiff does not plead such facts sufficiently, his claim will be struck out."

27 In the footnotes to this passage, the learned author says further, and by way of explanation, that where the words do not appear to refer to the plaintiff explicitly, the facts and circumstances which show that the words can reasonably be construed as relating to the plaintiff must be pleaded. If special knowledge is required to make the connection, then this amounts to an innuendo plea with the result that in addition to pleading the extrinsic facts required to establish the link, the plaintiff will have to plead and prove that the words were published to persons who knew the facts, although the plaintiff will not be required to plead as a material fact the precise identities of those who understood the words to refer to the plaintiff as this can be dealt with by a request for particulars.

28 It seems also that there will be cases involving newspapers and similar media where the facts are known sufficiently widely for an inference to arise that some persons knew the facts. See Australian Defamation Law and Practice at par 25,085; Fullam v Newcastle Chronicle (1977) 3 All ER 32 at 39. For ease of reference, I will call this latter precept the "inferential rule as to identification".

29 Difficult questions may arise where the words complained of contain defamatory allegations against a group of people. Where the plaintiff is not named, the question is: would reasonable persons reasonably believe that the words referred to the plaintiff? There are cases in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class, in which case every member may have a cause of action. Knupffer v London Express Newspaper Ltd [1944] UKHL 1; [1944] AC 116 at 119.

30 I should also note that counsel for the parties drew attention to Sims v Wran [1984] 1 NSWLR 317. In that case, Hunt J held that where a prominent politician makes a statement at a press conference the natural and probable consequence of his act will be that his statement will be repeated in the media, thereby making him responsible for the republication thereof, and usually in whatever form in which that republication takes place. See Speight v Gosnay (1891) 60 LJQB 231; Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331.

31 In essence, Hunt J indicated that a plaintiff has a choice of either complaining separately of each republication or relying upon such republication simply upon the issue of damages. If a plaintiff intends to complain separately of a republication of what took place at a press conference, he must plead each such republication as a separate paragraph in his statement of claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication.

32 On the other hand, Hunt J indicated, a plaintiff is entitled if he wishes only to complain of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication. But if the plaintiff intends to do so, he is obliged to make his intention clear in his statement of claim.

33 Against the background of these principles, let me now return to the proposed statement of claim in the present case.

34 The written submissions of the first and second defendants commenced by directing attention to the position of the second plaintiff, Simone Mickelberg. They submitted that the claim discloses no reasonable cause of action in respect of the second plaintiff because the words complained of, reasonably understood, do not refer to a class of persons which include the second plaintiff. It will be convenient to deal with this and related submissions at the outset as a ruling in regard to this aspect of the matter is likely to affect the resolution of other issues.

35 The plaintiffs plead in par 7 of the claim that the words complained of were defamatory "of the first and/or second plaintiff". They say further in par 7A (in which respect I make allowance for an obvious typographical error) that the words were published "of and concerning each of the plaintiffs". In my review of the relevant legal principles, I noted that where it is not absolutely clear on the face of the words that they refer to a plaintiff, the plaintiff should set out the connecting facts which establish the link between himself and the words used. The plaintiffs purport to present such a plea in par 8 of the claim by referring to certain facts which arguably show that the words were reasonably understood to refer to the first plaintiff. Similarly, in par 9 of the claim, the plaintiffs plead certain facts with a view to showing that the words were reasonably understood to refer to the second plaintiff.

36 I digress briefly to observe that the plaintiffs do not expressly purport to advance a plea of defamation by way of innuendo and they do not assert that the facts set out in par 8 and par 9 are to be regarded as extrinsic facts, the significance of which is known to certain persons with special knowledge. Accordingly, I proceed from the premise that the plaintiffs seek to rely upon what I have called the inferential rule as to identification, that is to say, the notion that where there has been a controversy in the media, an inference will arise that the facts are known sufficiently widely for some persons to have knowledge of the facts establishing a connection between the plaintiff and the words complained of.

37 I consider that it is reasonable for the plaintiffs to rely upon the inferential rule in the circumstances of the present case having regard to various matters set out in the pleading (which for present purposes I assume to be true). The facts and matters pleaded point to the existence of a longstanding controversy in the public domain involving certain persons bearing the name Mickelberg. One can assume that in a context which included reference to the Perth Mint swindle a reference to "the Mickelbergs" imported a reference to the first plaintiff, Peter Mickelberg, it being a pleaded and well-known fact that he was one of those convicted of the crime.

38 Nonetheless, the question then arises whether the facts set out in par 9 concerning the second plaintiff, even if established by the evidence, would lead to reasonable persons reasonably believing that the words complained of referred to the second plaintiff. The defendants submit that there are repeated references throughout the words that indicate that the words do not refer to a class of persons that include the second plaintiff. The second plaintiff is not mentioned by name. She seeks to establish a sufficient connection by asserting that she is a member of the Mickelberg family as a result of her marriage to the first plaintiff. The defendants submit, however, that a reasonable reader would not understand the words to be referring to each and every member of the Mickelberg family or to any person bearing the name Mickelberg. The words complained of are essentially concerned with those members of the Mickelberg family or bearing the Mickelberg name who have a criminal record or have been involved in criminal proceedings.

39 Accordingly, even if it be proved that there were certain listeners who knew that the second plaintiff was a member of the Mickelberg family by virtue of her marriage to the first plaintiff and that she had been involved in approaches to parliamentarians concerning the proposed move to New Zealand, the reasonable listener would not be likely to conclude that the second plaintiff was under attack because the words complained of were referring only to members of the Mickelberg family with a criminal record and the second plaintiff was not known to have had such a record and did not in fact have a criminal past.

40 In regard to these submissions, I note that the facts pleaded in par 9 of the claim do not suggest that the second plaintiff had or was thought to have had a criminal record. In essence, the facts and matters relied on simply indicate that the second plaintiff was married to the first plaintiff and thereby became a member of the Mickelberg family. Reference is also made to various broadcasts and print publications indicating that she was married to the first plaintiff and had played some part in the approaches to parliamentarians.

41 On an application of the kind presently before me, the Court must decide, as a matter of law, whether the words complained of are reasonably capable of bearing the defamatory meaning for which the party concerned contends. If the answer is in the affirmative, then it passes to the trier of fact, as a question of fact, to describe whether the words complained of do bear the meaning ascribed to them. If the answer is in the negative, then the claim will be struck out as failing to disclose a reasonable cause of action: Smith v Littlemore (supra).

42 In the circumstances of the present case, I am not satisfied that reasonable persons would reasonably believe that the words complained of referred to the second plaintiff. The interview considered in its entirety, was confined to a general issue as to whether it was proper for individuals with a prior criminal record and with some possible ongoing involvement in criminal proceedings to make approaches to parliamentarians and for parliamentarians to act upon those approaches. I therefore consider that the words, reasonably understood, do not refer to a class of persons which include the second plaintiff.

43 There are many cases in which a statement of claim or portions of a statement of claim are struck out upon the basis that the plaintiff will be allowed leave to replead. In the present case, a fundamental objection has been raised concerning the position of the second plaintiff and, after an extensive legal debate, I doubt that there are any means by which the second plaintiff can overcome the objections I have just described. Nonetheless, I am prepared to allow leave to the second plaintiff to replead.

44 It follows from this conclusion that I cannot grant the plaintiffs' leave to amend the claim in the manner presently proposed because, in my view, for the reasons I have just given, the pleading is defective in that there has been a failure to disclose a reasonable cause of action in respect of the second plaintiff. Further, this is a defect which resonates in many other sections of the pleading. Imputations in par 10 and par 11 of the claim are consistently framed in terms of what the words in their ordinary and natural meaning are said to mean in respect of both plaintiffs. For example, the imputation pleaded in par 10(a) is that "the plaintiffs" are beyond rehabilitation. It follows, then, that if, consistently with my ruling, the claim of the second plaintiff is struck out, the statement of claim will have to be reconstructed and many amendments will be required in order to effect the reconstruction, although some of the amendments, admittedly, such as the conversion of the plural to a singular, may be easily effected.

45 Nonetheless, as the various criticisms of the claim were fully argued, it is necessary and desirable that I should rule upon the remaining issues raised before me. This will permit the plaintiffs to replead in accordance with the various determinations made by the Court if that be their wish. It follows, however, that because the conclusion I have arrived at is fundamental to a consideration of the second plaintiff's cause of action, I do not intend to deal with the other issues raised in respect of the second plaintiff at length. When it comes to a discussion of the various imputations, I will proceed upon the assumption that the claimant is essentially the first plaintiff.

46 The plaintiffs seek to add to the plea that they are husband and wife, the words "and have two children".

47 The plaintiffs say, in par 3 of their written submissions, that these words have a bearing upon an issue arising later as to whether the plaintiffs have been rehabilitated.

48 As was pointed out by Anderson J in Taylor v Jecks (supra) at 319, the right of a party to have struck out of a pleading irrelevant and unnecessary allegations is part of the general rule that a party may not introduce into a pleading an allegation that may raise a false issue or that might obscure the true issue or that places the other party in the situation of not knowing the true nature and extent of the case he must meet.

49 The defendants submit that the words in question are superfluous and embarrassing in that the defendants will be required to plead to the allegation and such a plea may lead to a false issue arising at trial.

50 I am persuaded that the words in question are surplusage and irrelevant to the alleged cause of action and that these words should be struck out.

51 Paragraph 5 of the claim originally contained a brief description of the broadcast on or about 18 April 2000. The plaintiffs seek to add a plea that the interview was broadcast live on the World Wide Web via 6PR.com.au and in the case of the weekly interview between the second defendant and the third defendant broadcast to regional areas of Western Australia.

52 I am not persuaded that this proposed plea goes beyond the indorsement on the writ of summons. I do consider, however, that this plea is embarrassing in that it rolls up the plea of publication on the World Wide Web with the existing plea of publication in the form of a radio broadcast. Further, and in any event, it is embarrassing in that the terms of the plea are vague and uncertain. It is not clear what form it is alleged the broadcast took.

53 Further, it is not clear whether this publication is to be regarded as part of the interview. This is important in the context of the present case because par 6 and par 7 seek to bring into play the principle I mentioned earlier in my review of the decided cases that a politician such as the third defendant can be held responsible for the publication of words subsequently broadcast if the publication was made in circumstances where distribution in that form was the natural and probable consequence of the utterance. Different considerations may apply in regard to publication on the World Wide Web, but this is not made clear by the proposed amendment.

54 I will strike out this part of the claim, but on the basis that the first plaintiff will be allowed leave to replead in respect of this matter.

55 The plaintiffs wish to plead that immediately prior to the interview, a reporter spoke introductory words to the effect that Raymond Mickelberg faces sentencing over cannabis charges "this morning". The defendants did not expressly oppose the grant of leave in respect of this amendment, although a submission was made that the presence of the introductory words could have a consequential impact upon some of the imputations contended for by the plaintiffs. I will return to this aspect of the matter in due course. For the moment, I simply note in passing that this amendment tends to underline and reinforce the conclusion I have already arrived at concerning the second plaintiff's claim. The introductory words establish a context for the subsequent interview discussion and tend to suggest that those persons by the name of Mickelberg under discussion are those persons who have been or are involved in criminal proceedings.

56 The plaintiffs seek to introduce a plea (in respect of which I make allowance for an obvious typographical error) that the words were published of and concerning each of the plaintiffs. As I have already noted, this plea is then fleshed out in respect of each plaintiff in par 8 and par 9 in the manner required by the principles bearing upon the identification issue.

57 I am obliged to say immediately, in the light of the conclusion I arrived at earlier, that although I am prepared to grant leave to amend in a form which extends to both plaintiffs, I doubt that the second plaintiff can overcome the objection mentioned earlier. The crucial question is whether a plea essentially in this form is allowable in respect of the first plaintiff, and this requires that par 7A and par 8 be read in conjunction.

58 The defendants submit that the plea is untenable. They say that it is apparent when par 7 and par 8 are considered in conjunction that this is a plea of identification by the natural and ordinary meaning of the words and without reliance upon a true innuendo plea that brings into play not only extrinsic facts of the kind set out in par 8 concerning the first plaintiff, but also some definition of the persons who are said to have had knowledge of the extrinsic facts. Hence, the plea is defective.

59 In circumstances where the first plaintiff was not named or expressly mentioned in the interview, it would be open to the first plaintiff to advance a true plea of innuendo. He has said, however, that he is named in that he is one of "the Mickelbergs" and that he has set out facts establishing his link to that description. It follows from earlier discussion that the question then arises whether the plaintiffs, or essentially the first plaintiff, has pleaded sufficient facts and matters to bring his plea concerning identification within what I have called the inferential rule as to identification.

60 In that regard, the defendants submit that the facts and matters set out in par 8 are insufficient and, if allowed to stand, this would give rise to a number of false issues. More particularly, the defendants submit that there is no allegation contained in this paragraph that the events or incidents pleaded in par 8 were and are widely known in the public domain. They say, further, that it does not appear clearly which portion of the public or persons were aware of the facts and matters relied on. In a case of identification by way of true innuendo, it is necessary for the pleader to identify the persons or class of persons said to have knowledge of the extrinsic facts necessary to make the identification. If the plea is to be regarded as a plea of identification by way of true innuendo, it is defective for that reason.

61 As I have already indicated, I consider that in the circumstances of this case the first plaintiff is arguably capable of bringing himself within what I have called the inferential rule as to identification, having regard to the various matters pleaded and his involvement in longstanding matters of controversy. I consider that the combined effect of the various subparagraphs in par 8 amounts to a plea that the matters were and are widely known in the public domain, with the result that an arguable case has been pleaded as a matter of law that the first plaintiff was identified by the words complained of, even though he is not named expressly as Peter Mickelberg.

62 I observe in passing that, if, as is now apparent, leave to amend in the form proposed will not be granted, and that various repleadings will be required, the first plaintiff will have to give careful consideration as to whether identification by way of innuendo should be pleaded expressly. Although I have not ruled that cl 7 and cl 8 should be struck out, I will, nonetheless, allow to the first plaintiff leave to replead par 7 and par 8 so as to set out a plea by way of innuendo expressly including reference to the persons or class of persons said to have knowledge of the extrinsic facts linking him to the description "the Mickelbergs".

63 The combined effect of par 7A and par 9 is to set out a plea that the words complained of in their natural and ordinary meaning were published of and concerning the second plaintiff. It follows from earlier discussion that, in my view, notwithstanding the various facts and matters concerning the second plaintiff set out in par 9, the words complained of are not capable of giving rise to a meaning defamatory of the second plaintiff because a reasonable listener could not be reasonably understood to conclude that the words referred to the second plaintiff. Accordingly, as foreshadowed previously, I will strike out this paragraph, but with leave to replead.

64 The plaintiffs, in par 10, assert that in their natural and ordinary meaning the verbal statements made by the second defendant, Paul Murray, gave rise to the various imputations then pleaded.

65 The imputation in par 10(a) is that the plaintiffs are beyond rehabilitation. In the light of my earlier ruling, I will now treat this essentially as an imputation that the first plaintiff is beyond rehabilitation.

66 In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 various members of the court indicated that debate about imputations should not be used to ensnare plaintiffs unjustly in costly pleading disputes and undue technicalities. The degree of specificity of pleading required in a particular case is a matter of judgment, bringing into play considerations of practical justice in addition to matters of linguistic refinement.

67 Gleeson CJ said at 137 that the requirement that a plaintiff must specify the act or condition which is attributed to him, or her, is one which, in its practical application, raises questions of degrees. His Honour went on to say that almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation and that, in any given case, a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity.

68 I noted earlier in my review of the decided cases that, as a general rule, a party is entitled to have the imputations for which it contends left to the trier of fact for ultimate decision: Smith v Littlemore (supra); Leslie v Mirror Newspapers [1971] HCA 66; (1971) 125 CLR 332 at 341.

69 It seems to me that the pleaded imputation in par 10(a) is capable of arising from the words complained of. There is some suggestion in the words that the persons being criticised are beyond redemption or otherwise have not or cannot mend their ways. Mr Murray, at one point, says explicitly " ... there's no question of rehabilitation here".

70 There is certainly room for argument as to whether it lowers a person in the estimation of right-thinking members of the community to suggest that he is beyond rehabilitation. However, when words bearing upon a concept of that kind are uttered in the course of a discussion about criminal activities, I consider that they are words capable of conveying a meaning defamatory of the plaintiff.

71 I am not satisfied that this imputation should be struck out as against the first plaintiff. It should be struck out as against the second plaintiff as failing to disclose a reasonable cause of action. This latter ruling applies to all of the subsequent imputations.

72 The imputation pleaded in par 10(ab) is that the plaintiffs are recidivist offenders.

73 I have already noted that imputations must be the distillation of a distinct meaning and therefore imputations which are simply repetitious will be struck out. In the present case, however, I consider that the notion of recidivism is distinct from the notion of someone who is beyond rehabilitation. I consider that the imputation can be said to arise from the words complained of and is arguably defamatory of the first plaintiff.

74 I am satisfied that this imputation should be struck out upon the basis that, for the reasons previously given, the words are not capable of referring to the second plaintiff, Simone Mickelberg.

75 The imputation pleaded in par 10(b) is that the second plaintiff was convicted of criminal offences long before the Perth Mint swindle.

76 I am satisfied that this imputation should be struck out as against the second plaintiff.

77 The imputation pleaded in par 10(c) is that the plaintiffs are so notoriously dishonest that no-one would be surprised at a deception on their part.

78 I have already noted that the previously pleaded imputations draw expressly upon that part of the transcript in which Mr Murray says the following words:

"If they ... there's no question of rehabilitation here; these people are recidivist offenders. I mean they offended way before the Perth Mint swindle. Then there was the Yellow Rose of Texas swindle. We know a lot about them."

79 Mr Murray later went on to say words suggesting that the person or persons being criticised had deceived two members of the Liberal Party. It is suggested further that it was a bit rich to be surprised "that the Mickelbergs would deceive anyone".

80 Against this background, I consider that the imputations in par 10(c) can be said to arise from the words complained of and the words in question are capable of conveying a meaning defamatory of the first plaintiff (but not the second plaintiff).

81 I am not satisfied that this imputation should be struck out as against the first plaintiff.

82 The imputation pleaded in par 10(d) is that the plaintiffs are so unsavoury that members of the Western Australian Liberal Party should be wary of dealing with them.

83 The Concise Oxford Dictionary indicates that the term "unsavoury" extends to a person or act that is morally offensive. The tenor of the interview is that the Mickelbergs being referred to have acted and continue to act in a way that is morally offensive.

84 I am not satisfied that this imputation should be struck out as against the first plaintiff.

85 In par 11, the plaintiffs plead that in their natural and ordinary meaning the verbal statements made by the third defendant, Richard Court, conveyed the imputations pleaded in that paragraph.

86 The imputation pleaded in par 11(a) is that the plaintiffs were involved in drugs.

87 The third defendant submitted that the imputations pleaded in subpars 11(a) to (d) are not reasonably capable of being conveyed by the words attributed to the third defendant. The only sting arguably arising from the words attributed to the third defendant is that those who approached the members of parliament for references did not disclose that Mr Raymond Mickelberg was facing trial for drugs offences. It is said further that par 11(a) is not defamatory in that drug counsellor, police, doctors and pharmacists are all "involved in drugs". If the imputation is one of dealing in illegal drugs, it should be pleaded.

88 I am satisfied that the plea in its present form is embarrassing and that if the imputation is one of dealing in illegal drugs, such a plea must be set out clearly.

89 Accordingly, I am satisfied that this imputation in par 11(a) should be struck out as embarrassing in respect of both plaintiffs.

90 The imputation pleaded in par 11(b) is that the plaintiffs were dealing in drugs.

91 The defendants submitted that this plea was repetitious and therefore embarrassing. It follows from the observations I have just made that if the earlier plea was not thought to be sufficient to point to an alleged dealing in drugs, then this plea cannot be regarded as repetitious.

92 When one turns to the transcript, one notices that the third defendant is often speaking in a hypothetical vein. For example, at an early stage, he says that "if" the Mickelbergs went to members of parliament and asked for references, then that would put the Mickelbergs in a pretty bad light. Nonetheless, the general tenor of the interview is consistent with an acceptance by the interviewee that scenarios of the kind under discussion have actually taken place. It is in that context that a reference is made by the third defendant to the Mickelbergs being involved with drugs.

93 I digress briefly to say that I am not satisfied that the presence of the introductory words referring to Mr Raymond Mickelberg only is sufficient to negate any suggestion that the words may have had some impact upon the reputation of the first plaintiff. Most of the discussion following the introductory words is in respect of "the Mickelbergs".

94 In my view, the presence of the introductory words concerning a forthcoming sentence for cannabis charges and the following discussion concerning other forms of criminal activity would arguably leave a reasonable listener with the impression that if the Mickelbergs were "involved in drugs" (being the words used by the third defendant), then this meant that they were dealing in drugs.

95 Accordingly, on balance, I am not satisfied that this imputation should be struck out as against the first plaintiff.

96 The imputation in par 11(c) is that the plaintiffs' criminal records are appalling.

97 I am not satisfied that this imputation should be struck out as against the first plaintiff.

98 The imputation pleaded in par 11(d) is that the second plaintiff has a history of deceitful behaviour. It is not clear to me why in this case the plea is confined to the second plaintiff.

99 It follows from earlier discussion that, in my view, as the second plaintiff was not identified, this imputation should be struck out. As the third defendant used the word "deceitful" in the interview in speaking of "these people", I would not be prepared to strike out the imputation as against the first plaintiff if the imputation is repleaded so as to apply to the first plaintiff.

100 The imputation in par 11(e) is that the first plaintiff has not rehabilitated himself since his release from prison.

101 I note from the transcript that the third defendant used these words:

"They have got an appalling track record. If they were genuinely rehabilitating themselves as individuals and as a family, well and good but it appears that's not the case."

102 This is arguably an assertion that the first plaintiff has not rehabilitated himself and for that reason, I am not satisfied that the imputation should be struck out. I have noted previously that a reference to rehabilitation in the course of a discussion about criminal activities is capable of conveying a defamatory meaning.

103 Paragraph 14 of the claim contains a plea that by reason of the facts referred to in par 13, 13(a) and 13(b) the plaintiffs are entitled to aggravated damages. The matters pleaded in par 13 are also partly relied upon in support of a later plea in par 18 concerning a claim by the plaintiffs for exemplary damages.

104 Before turning to these matters, it will be useful to look briefly at the rules concerning these categories.

105 Aggravated damages are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done, whereas exemplary damages are intended to punish the defendant and presumably to serve one or more of the objects of punishment, namely, moral retribution or deterrence: Uren v John Fairfax & Sons [1966] HCA 40; (1966) 117 CLR 118.

106 There is a wide range of circumstances which might warrant an award of aggravated damages, encompassing both conduct in the publication of the defamatory material and conduct thereafter. Damages will be aggravated only by conduct which is unjustifiable, improper or lacking in bona fides.

107 Exemplary damages will be awarded in circumstances in which there is a conscious wrongdoing in contumelious disregard of another's rights or in circumstances in which it is open to the Court to find that the defendant recklessly and arrogantly attacked the plaintiff's reputation for the purpose of publishing a sensational story to attract custom: Whitfeld v De Lauret & Co Ltd [1920] HCA 75; (1920) 29 CLR 71. Steytler J observed in Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997 that he would be loath to say that a failure to apologise could never give rise to exemplary damages.

108 I will not traverse the full range of matters set out in par 13 of the claim. In essence, the plaintiffs assert that the interview was published in circumstances where, notwithstanding his previous convictions, the first plaintiff had continued to maintain his innocence of the offences with which his name was principally associated and he had not been convicted of any drug offence. Reference is made to the second defendant's standing as a journalist and to the standing of the third defendant as Premier of Western Australia.

109 The plaintiffs assert that the defendants were aware or acted with reckless disregard as to whether the second plaintiff had never been convicted of a criminal offence and as to whether the first plaintiff had not since 1984 been convicted of a criminal offence. It follows from earlier discussion that I will not consider further the situation of the second plaintiff.

110 The defendants submit that the matters referred to in pars 13, 13(a) and 13(b) are not circumstances of aggravation and cannot support the plea, with the result that the proposed amendment should not be allowed. It is said further that none of the matters pleaded in par 13(e) to 13(i) are matters that would amount to circumstances of aggravation.

111 The question is whether the allegedly wrongful act complained of was aggravated by the manner in which the act was done. In circumstances where the parties to the interview were both experienced commentators on public affairs and were aware that their statements and opinions were likely to be influential, I consider that the matters referred to in the pleading are arguably sufficient to support a claim for aggravated damages. The facts and matters relied on by the plaintiffs include a plea that the plaintiffs asked for but were not provided with an apology by any of the defendants.

112 I am not satisfied that the plea can be regarded as untenable or manifestly groundless. I am not satisfied that the paragraphs bearing upon the claim for aggravated damages should be struck out.

113 The plaintiffs plead in par 15 that the first and second defendants published the introductory words and the words complained of believing that the prospect of advantage by reason of the publication outweighed the prospect of loss. They say further in par 16 that subsequent to the publication of the words, the plaintiffs jointly and in writing demanded an apology from each of the first, second and third defendants, but no apology was forthcoming in circumstances where an apology was called for or was appropriate. It is these matters, together with the facts pleaded in par 13, which are said to justify a claim for exemplary damages.

114 I note that in Henry v TVW Enterprises Ltd (1990) 3 WAR 474, Seaman J was prepared to make a substantial award of exemplary or punitive damages in circumstances where an editor of a television programme was held to have acted recklessly in including archival footage in a programme which had the effect of defaming the plaintiff dentist. This award was made even though his Honour did not consider the presenter of the programme to have behaved with any express malice or callous or cruel motive.

115 In the circumstances of the present case, I am not persuaded that the various paragraphs reflecting the claim for exemplary damages should be struck out as against the first and second defendants. The facts and matters relied on by the plaintiffs, if established at trial, could arguably be sufficient to make out a case that the second and third defendants were prepared to take risks in order to win a larger audience.

116 I have given very careful consideration to the position of the third defendant in regard to this issue. I have already noted that he generally endeavoured to proceed more cautiously than the interviewer by prefacing his views with the word "if" so as to present the facts in a hypothetical light. A fair reading of the transcript suggests that he was more concerned to defend the actions of his parliamentary colleagues than to mount an attack upon the individuals under discussion. I have already indicated that, in my view, the third defendant's caution may arguably (on the plaintiffs' case) not have been sufficient to dilute the tenor of the remarks being made about the Mickelbergs, with the result that the reputation of the first plaintiff was affected. Nonetheless, on balance, I am not persuaded that the third defendant acted in contumelious disregard of the plaintiffs' rights. It follows that I will strike out par 18 of the proposed statement of claim concerning exemplary damages as against the third defendant. The plaintiffs will be allowed leave to replead in respect of that matter.

117 It follows from the preceding discussion that, in my view, the claim advanced by the second plaintiff should be struck out as failing to disclose a reasonable cause of action, but with leave to replead. This finding, of itself, requires consequentially that the plaintiffs will not be granted leave to amend the statement of claim in the manner presently proposed. Further, and in any event, certain portions of the statement of claim bearing upon the claim being advanced by the first plaintiff will be struck out, but in each case with leave to replead. The paragraphs being struck out as against the first plaintiff are par 1, par 5, par 11(a) and par 18 in respect of the third defendant. Accordingly, the plaintiffs will be allowed leave to submit a further minute of proposed statement of claim within 21 days. I will hear from the parties as to whether any further orders are required.

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2001] WASC 33

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Judgment (142 paragraphs)

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2001] WASC 33 (13 February 2001)

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Cases Cited (20)