Supreme Court of WA|2003-10-31

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2003] WASC 209 (31 October 2003)

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

CITATION : MICKELBERG & ANOR -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2003] WASC 209

Defamation - Application to strike out defence - Fair comment - Whether substance of comment must be pleaded - Qualified privilege - Discussion of political matters - Live radio interview - Whether Lange principle requires plaintiff to be given opportunity to respond - Turns on own facts

Australian Broadcasting Corporation v Comalco (1986) 12 FCR 510

Clines v Australian Consolidated Press Ltd (1966) 67 SR (NSW) 364

Dunford Publicity Studios Ltd v News Media Ownership Ltd & Gordon [1971] NZLR 961

E Hulton & Co v Jones [1910] AC 20

Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) [1997] HCA 8; (1997) 188 CLR 241

Hunt v Star Newspaper Co Ltd [1908] 2 KB 309

Inkhorn Pty Ltd v Herbert [2000] WASCA 333

Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986

Knowles v Roberts (1888) 38 Ch D 263

Lloyd v Express Newspapers plc [1997] EWCA Civ 1319 (24 March 1997)

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95

Nationwide News Pty Ltd v Wiese (1990) 4 WAR 263

O'Shaughnessy v Mirror Newspapers Ltd [1970] HCA 52; (1970) 45 ALJR 59

O'Sullivan v Schubert [1963] VicRp 23; [1963] VR 143

Reynolds v Nationwide News Pty Ltd [2001] WASC 116

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

Speidel v Plato Films Ltd [1961] AC 1090

1 MASTER NEWNES: The plaintiffs have brought proceedings for defamation against each of the first, second and third defendant in respect of a radio broadcast. The defendants have filed defences to the claims. The plaintiffs now seek to strike out pars 11, 13, 14, 15 and 16 of the defence of the first and second defendants, and pars 7(c)(3)(B), 10(b), 10(c), 14 - 16 and 18 - 20 of the defence of the third defendant, on the grounds that those pleas disclose no reasonable cause of action, are embarrassing or are an abuse of the process of the Court.

2 In the statement of claim, the plaintiffs plead that the first and second plaintiffs are husband and wife. The first defendant is the proprietor of a radio station known as Radio 6PR and the second defendant was at all material times employed as a presenter by the first defendant. The third defendant was at all material times the Premier of Western Australia.

3 The plaintiffs claim that they were defamed in a radio interview between the second and third defendants which was broadcast by the first defendant on 18 April 2000. The words complained of (the "Words") are set out in par 7 of the statement of claim as follows:

"'PAUL MURRAY' - PRESENTER:

First I want to raise with you the Mickelberg matter that's been around for most of the last couple of days.

'RICHARD COURT' - WA PREMIER

Sure.

'MURRAY':

How can members of the police force have any confidence in the parliamentary joint select committee on the Anti Corruption Commission when it's headed by a Liberal politician, Derrick Tomlinson, who writes character references for one of the state's most notorious criminals?

'COURT':

Look I think Paul, lets [sic] put it in perspective. These people were found guilty of offences and went to gaol and did their time. And when they've come out of gaol.. all criminals who come out of gaol want to try and you know, start off a fresh life again. I don't know the circumstances in which these people approach members of parliament and I might say members of parliament from both sides of politics.

But in relation to Cheryl Edwardes [sic] she said that the family presented a case where they wanted to start a fresh life and get on with it and she made her decision accordingly. These people weren't aware that there were drug charges....

'MURRAY':

But they know the rest of the Mickelbergs' past. I mean (indistinct) ...

'COURT'

Oh we all make ... well, that's right Paul. We all...look, I can assure you have a number of people who come to my office who have served a.... served their time in gaol and they're trying to get on with their lives, and you know, where you can, you help people that have...you know, they cop the punishment and get on with it.

In the case of the Mickelbergs, if they went to members of parliament and asked for references knowing that they had been committing further offences, you can't...and didn't tell the members of parliament, you can't blame the members of parliament, but it certainly puts the Mickelbergs in a pretty bad light.

I don't know the Mickelbergs, they certainly wouldn't get a reference from me, but in relation to...you know if someone was involved in their personal situation and wanted to give them a hand after they'd served their time in prison and I'd probably...

'MURRAY':

But what about Derrick Tomlinson? Look, Derrick Tomlinson is the head of a very sensitive parliament committee.

'COURT':

Sure.

'MURRAY':

Oversees the ACC. He writes character references for criminals.

'COURT':

No hang on, no hang on. A person who has been convicted, served their time and then when you come out from prison...you know, you've served your time. You've then got to get on with life and these people apparently wanted to go and start again in New Zealand and some members of parliament provided support for that to occur.

Look, Derrick Tomlinson... you would not find a finer, more upstanding member of parliament and for anyone to infer that he can't carry out his responsibilities without fear or favour has just go it wrong.

'MURRAY':

Well...

'COURT':

But Paul...

'MURRAY':

...but this is okay? This is a good judgment call then, is it?

'COURT':

Well Paul...

'MURRAY':

If I was a police officer I'd be horrified to have this bloke...

'COURT':

Paul, put it another way.

'MURRAY'

...heading up that committee.

'COURT'

I'll put it another way. If you knew someone that had been to prison, maybe a former politician or someone, they'd done their time and they had rehabilitated themselves and getting on with their life and they wanted some support, would you provide them with support?

'MURRAY'

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 (ph.sp) swindle. We know a lot about them.

'COURT'

Yeh, Paul I... look, I agree with you. Now that we know that they've been involved in drugs and just listening to that there's going to be what...a sentence handed down this morning. Look, I agree with you. I mean... and if these people have gone to members of parliament - which would appear they have - and not told them about those offences, they no longer deserve the time of day. And the members of parliament who were trying to do the right thing in assisting those people in need which we all do from time to time, they're probably quite embarrassed about what took place.

But in our society Paul, when someone's been convicted, they've done their time I'm sure many of us...I know I have on a number of occasions assisted people that have been in prison and want to get on again with their lives. But in the case of the Mickelbergs, look I tend to agree with you Paul. 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.

'MURRAY':

Well, what do you say about the behaviour of your two Ministers then? Oh, sorry, one Minister and one very senior MLC?

'COURT':

Well, if those people weren't told the truth, I can't blame them. If they weren't told...if a family went to them and told them a story that they were back on tract, wanted to get on with their life when they knew that they were dealing in drugs, well that's simply being dishonest.

'MURRAY':

Premier, Mr Tomlinson wrote a letter to the New Zealand Immigration Minister and he said evidence had been put before a select committee into the police which he chaired which raised serious doubts about police evidence in the Perth Mint swindle case. Now, this wasn't a matter that was reported on by the committee. Is this a proper use of his position by Mr Tomlinson.

'COURT':

Look, I'm not aware of what Derrick's written to...what did you say, the New Zealand Immigration...

'MURRAY':

Immigration Minister.

'COURT':

I'm talking about the principle of you, members of parliament, anyone in our society providing assistance to people who have served their time in gaol. And I think as a society when people have you know been caught they've done their time, they're trying to get back on tract again, that's the principle I'm talking about.

I... in relation to the Mickelbergs Paul, I'd tend to agree with you; that their track record has not been good and certainly this latest incident... 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 give the time of day.

'MURRAY':

Well you said you know, in the paper yesterday that they'd deceived these two members of the Liberal Party.

'COURT':

Well they have, yeah.

'MURRAY'

Well I would have thought that you know that was a bit rich you know... by being surprised that the Mickelbergs would deceive anyone. I mean that's... I think the members of your party need to be more wary about their dealings don't they with people like this.

'COURT'

Well Paul, in our society you do the time, you come and out and you've got a chance to get on with your life. You've always got to carry the burden of the fact that you've committed an offence and you've been treated accordingly. In this case these people have again been deceitful and they'll get their just desserts."

4 It is alleged that, both in their ordinary and natural meaning and by way of innuendo, the Words conveyed a number of meanings defamatory of each of the plaintiffs.

5 The principles to be applied on an application of this sort are well-established and were not in dispute. A pleading will be struck out as disclosing no reasonable cause of action or defence only if it is clear that the plea is so obviously untenable it cannot possibly succeed, and great care must be exercised to ensure that a party is not improperly deprived of their opportunity to put their case at trial: General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 at 130. In that regard, Courts at first instance should be careful not to risk stifling the development of the law: Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373.

6 I will deal with the matters in the order in which they were argued, namely, first the objections to the defence of the third defendant and then the objections to the defence of the first and second defendants.

7 The first objection is to par 7 of the third defendant's defence. That is as flows:

...

(c) ... the third defendant:

(B) the Interview took place shortly after 9:00am and immediately following the first defendant's broadcast of one of its radio station's morning news updates, which included that morning a specific news item read out over the radio and heard by the third defendant in the following terms:

Before we join the Premier we'll just go and check up on where news is going today with 6PR news director Sonia Vinci. Hi Sonia...

8 Hi Paul, busy day ahead 10 o'clock this morning ... in the courts, Raymond Mickelberg faces sentencing over cannabis charges this morning ... so all those stories and lots more throughout the day, stay with us ...'."

9 Paragraph 7(c)(3)(B) of the defence was objected to on the basis that, if the third defendant wishes to rely on words that were broadcast before the Words, then all of the additional words on which the third defendant seeks to rely, not just part of them, should be set out in the defence. The third defendant, without conceding the point, agreed to include all of the preceding words and this ground was not pursued.

10 The plaintiffs sought to strike out par 8 of the defence, which pleads to par 8 of the statement of claim. In par 8 of the statement of claim it is alleged that, by reason of the extrinsic facts that are set out in subpars 8(a) - (h), the Words would reasonably have been understood to refer to the first plaintiff. The first plaintiff's case is that the facts pleaded in par 8 were so notorious as to allow a tribunal of fact safely to infer that at least some of the listeners to the broadcast would have knowledge of those facts and, accordingly, would have understood the Words to refer to the first plaintiff: Fullam v Newcastle Chronicle and Journal Ltd [1977] 1 WLR 651.

11 Paragraph 8 of the defence is in the following terms:

"(a) Subject to paragraph 8(b) of his defence below, the third defendant admits:

(1) that the Words complained of were reasonably understood to refer to 1 or more of the first plaintiff and his brothers, Raymond Mickelberg and Brian Mickelberg (deceased) (together "the Mickelbergs");

(2) the facts in sub-paragraphs 8(a) to 8(c) and sub-paragraphs 8(f) to 8(h) of paragraph 8 of the Claim; and

(3) subject to each additional observation that:

(A) Raymond Mickelberg appealed on 4 occasions to the Western Australian Court of Criminal Appeal as to his Perth Mint Swindle convictions; and

(B) the first plaintiff appealed 2 times to the High Court as to his Perth Mint Swindle convictions,

the facts in sub-paragraphs 8(d) and 8(e) of the Claim.

(b) The third defendant does not admit that those facts referred to in sub-paragraphs 8(a) to 8(h) of the Claim alone constitute a complete basis upon which the Words could reasonably be understood as referring to the first plaintiff, and in addition to those facts, the third defendant refers to the facts referred to in paragraph 10(b) of his defence below."

12 The essence of the third defendant's plea, as explained by his counsel, is that, whilst in par 8(a) it is accepted that some listeners could reasonably have understood the Words as referring to Mr Mickelberg, it is pleaded in par 8(b) that such listeners would have identified Mr Mickelberg, not by reason of the extrinsic facts pleaded by the plaintiffs alone, but by those facts taken in conjunction with the additional extrinsic facts which are pleaded at par 10(b) of the defence. That is, the third defendant seeks to plead a more extensive factual basis as necessary for the identification of Mr Mickelberg. The significance of that, on the third defendant's case, is that a listener who knew the necessary facts would not only identify Mr Mickelberg as a person referred to in the Words, but would also realise that the Words could not be referring to Mrs Mickelberg.

13 Counsel for the plaintiffs accepted, in the course of argument, that there was no objection in principle to a defendant seeking to plead that knowledge of additional facts was necessary to enable the identification of the plaintiff.

14 It was submitted, however, that the plea in par 8(b) of the defence was irrelevant. Two grounds were relied up. First, the plea in par 10(b) simply refers to the various facts set out there as being in the "public domain", not as being generally known or notorious. The third defendant does not plead that listeners to the broadcast who knew the facts pleaded by the plaintiffs also knew the facts pleaded in par 10(b) of the defence, and no inference to that effect could be drawn because the latter facts were not alleged to be generally known, but merely to be "in the public domain at the time of the broadcast". Secondly, the particular facts pleaded in par 10(b) are of such a highly specific nature that they plainly would not be generally known or notorious, but would be known only to the relatively small number of people who were intimately acquainted with the affairs of the Mickelbergs.

15 In my view, the plaintiffs' objection is made out. As par 8 of the defence is pleaded, the additional extrinsic facts on which the third defendant relies are only relevant if those facts were known to listeners to the broadcast. That is not pleaded. Nor is it pleaded that the facts were generally known in the Western Australian community, so that it might properly be inferred that listeners to the broadcast would have known those facts.

16 I do not consider that such knowledge is established by pleading that the facts were in the public domain. On one view, for instance, facts on public registers or in records to which the public have ready access can be said to be in the public domain. But such facts will usually only be known to those few people who have taken the trouble to consult the relevant register or record. If, on the other hand, the expression "the public domain" is meant to convey that the facts were generally known, it is not, in my view, as it is currently used, apt to convey that.

17 I would, therefore, strike out par 8 on that basis. It is unnecessary to deal with the further ground that the matters pleaded in par 10(b) could not, of their very nature, be facts of general knowledge. Although I can see the force in the plaintiffs' argument, I am inclined to think that it is a question of fact for trial.

18 The plaintiffs' counsel also submitted that pars 8(a) and 8(b) were inconsistent in that it was inconsistent for the admission in par 8(a) to be "subject to" the non-admission in par 8(b). As par 8 will need to be repleaded, it is unnecessary to deal with this complaint. I might say, however, that it could perhaps be made a little clearer in the defence that what is alleged is that the Words were reasonably understood to refer to the first plaintiff only by listeners who knew both the facts pleaded in par 9 of the statement of claim and the facts pleaded in par 10(b) of the defence.

19 The plaintiffs' objection to par 10 of the defence was similar to that taken to par 8(b). Paragraph 10 of the defence pleads to par 9 of the statement of claim, in which it is alleged, in effect, that, by reason of the extrinsic facts which are particularised, the second plaintiff would have been identified by at least some listeners as a person referred to by the Words. It is alleged that those extrinsic facts were widely known in the Western Australian community, so as to give rise to a reasonable inference that at least some of the listeners to the broadcast would have known them.

20 In par 10(a) of the defence the allegations in par 9 of the statement of claim are denied. The third defendant then goes on in par 10(b) to allege that, by reason of, among other things, the extrinsic facts that are pleaded in par 10(b), which it alleges were in the public domain at the time of the broadcast, listeners to the broadcast would have understood the Words to refer only to one or more of the Mickelberg brothers, depending on the context, but not to the second plaintiff.

21 The facts that would cause a listener to understand that the Words did not refer to the second plaintiff are relevant, however, only if they were known to listeners. For the reasons I have expressed in relation to par 8(b), it does not follow from the plea that the facts set out in par 10(b) were in the public domain that they were known to any listener.

22 I would therefore strike out par 10(b) of the defence.

23 The next objection was to pars 14 and 18 of the defence, which plead fair comment defences to the claims of the first plaintiff and second plaintiff respectively. The objection, which was common to both, was that those pleas do not identify the part or parts of the Words which are alleged to constitute comment and do not state the comment itself.

24 It was not suggested on behalf of the plaintiffs that what is pleaded as fair comment goes beyond the ambit of the imputations capable of arising from the Words. The only issue is whether the third defendant is required to set out in the defence the specific passages in the Words that are said to constitute comment and to specify the comment.

25 The general rule is that a plaintiff is not entitled to particulars of the words in the matter complained of that are said to constitute comment: Mackie v John Fairfax & Sons Ltd [1966] 1 NSWLR 641 at 649, Hopman v Mirror Newspapers Ltd (1960) 61 SR (NSW) 631 at 634; Archer v Channel Seven Perth Pty Ltd [2002] WASC 160 at [61]. In my view, a defendant should, however, in all but those cases where the comment is obvious, plead the substance of the comment relied upon so that the plaintiff knows the case they have to meet: Control Risks Ltd v New English Library Ltd [1989] 3 All ER 577. That is simply consistent with the modern view that a "cards on the table" approach should be taken to pleadings to avoid surprise at trial. I should add that, in relation to the pleading of the substance of the comment, I should not be taken as necessarily accepting the view expressed in Anderson v Nationwide News Pty Ltd [2001] VSC 335; (2001) 3 VR 619 that a defence of fair comment is liable to be struck out if the substance of the comment indicates that the defence relies on meanings substantially different from those pleaded by the plaintiff. As to that, at present I respectfully share the reservations as to its application in this State mentioned by McLure J in Moir v Flint [2002] WASC 48.

26 I do not consider that this is a case where the third defendant is required to identify the words said to constitute comment in the matter complained of. The facts upon which the comment is based have been set out. I am not satisfied that in this case it is necessary for the third defendant to go further than that and to plead the words said to constitute the comment. I do, however, consider that the third defendant should plead the substance of the comment the third defendant says is to be found in the Words. This is plainly not a case where it can be said that the comment is self-evident and unless the substance of the comment is pleaded the defence is embarrassing.

27 It seems to me that the appropriate course in the current circumstances is to order that each of pars 14 and 18 of the third defendant's defence be struck out unless, within 14 days, it is amended to plead the substance of the comment. I would grant leave to amend the defence for that purpose.

28 The next attack was on pars 15, 16, 19 and 20 of the defence. Paragraphs 15 and 19 plead defences of qualified privilege, in the traditional sense, to the claims of the first plaintiff and the second plaintiff respectively. Paragraphs 16 and 20 plead defences of qualified privilege, relying on the principle enunciated in Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, in respect of the first plaintiff and second plaintiff respectively. That is, the defence is based on the assumption that there are different categories of qualified privilege; first, the traditional, or orthodox, qualified privilege and secondly, the "extended form of qualified privilege" formulated by the High Court in Lange. Whether there are, in fact, two separate categories of qualified privilege may be open to question: see Roberts v Bass [2002] HCA 57; (2002) 194 ALR 161 per Gleeson CJ at 162 - 3. But on this application, as in Roberts v Bass, it was assumed that there are.

29 Turning first to the pleas in pars 15 and 19, the third defendant pleads that the words he spoke were communicated to the public on an occasion of qualified privilege in that, in his capacity as the then Premier of the State, he and listeners to the broadcast shared a common and corresponding respective interest in the communication and receipt of the subject matter of the broadcast.

30 It is alleged that the publication was on an occasion of qualified privilege, because the third defendant, as Premier, spoke the words while being interviewed on a public radio programme on important topical matters of public interest. The words spoken by the third defendant in answer to the questions put to him during the interview were spoken in discharge of his public duties as Premier and were, therefore, of legitimate interest and concern to the people of Western Australia, who had a corresponding interest in hearing his views. It is pleaded that the words spoken by the third defendant concerned matters such as the propriety of members of State Parliament providing references to released prisoners with serious criminal records, including the provision of such references by the Chairman of the Parliamentary Joint Select Committee on the Anti-Corruption Commission and the effect that that may have on the confidence the Police Service has in that Committee, and the propriety of released persons who have serious criminal charges still outstanding against them seeking references without disclosing that fact to the Member of Parliament concerned.

31 It is well-established that it is only in exceptional cases that the common law will recognise an interest or duty to published defamatory matter to the general public: Lange v Australian Broadcasting Corporation (supra) at 570. Thus, in Lang v Willis [1934] HCA 51; (1934) 52 CLR 637, Starke, Dixon and Evatt JJ were of the view that election speeches made to large audiences of unidentified persons are not necessarily privileged, even if the speeches deal with matters of general interest to the electors. Dixon J said at 667:

"The proposition appears to me to be untenable that election speeches made to a large audience of unidentified persons are privileged because the speaker deals with matters in which the electors have an interest."

32 In Loveday v Sun Newspapers Ltd [1938] HCA 28; (1938) 59 CLR 503, Latham CJ said, at 513:

"There is ... no principle of law which entitles a newspaper to publish a defamatory statement of fact about an individual merely because the statement is made in the course of dealing with matters of public interest."

33 In Stephens v West Australian Newspapers Ltd [1994] HCA 45; (1994) 182 CLR 211, Brennan J said, at 244:

"Mere curiosity in the subject matter of a defamation or a mere avidity for information about the subject matter is not, without more, sufficient to attract an occasion of qualified privilege, however widespread the curiosity or avidity for information may be."

"Reciprocity of interest or duty is essential to a claim of qualified privilege at common law. The need for reciprocity usually defeats a claim of qualified privilege where the publication has been made to the general public. Only in exceptional cases does a person have an interest or duty to publish defamatory matter to the world at large. Both in Australia and elsewhere, common law courts have repeatedly held that a person has no legitimate interest or duty to publish defamatory matter to the general public if no more is established than that the subject matter of the publication is one in which the public is interested. In Howe and McColough v Lees [1910] HCA 67; (1910) 11 CLR 361 at 398, Higgins J said that the word 'interest' was not used in any technical sense. However, his Honour said that the person must not be 'interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news'. In the same case, O'Connor J said that the interest must be 'of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it'."

35 In Lange (supra) it was held that the common law doctrine of qualified privilege as expounded in Australia imposes an unreasonable restraint on that freedom of communication, especially communication concerning government and political matters, which "the common convenience and welfare of society" now requires.

36 In his written outline of submissions, Senior Counsel for the third defendant relied on Roberts v Bass for his argument that traditional qualified privilege was capable of extending to the facts of this case. That proposition was not developed to any great extent in his oral submissions. As I understand the point, however, the third defendant says that Roberts v Bass recognises that the traditional common law doctrine of qualified privilege has been extended by the decision in Lange.

37 Counsel relied upon the following passage from the decision in Roberts v Bass, per Gaudron, McHugh, Gummow JJ at 179:

"It is a serious mistake to think that Lange exhaustively defined the constitutional freedom's impact on the law of defamation. Lange dealt with publications to the general public by the general media concerning 'government and political matters'. It was not concerned with statements made by electors or candidates or those working for a candidate, during an election, to electors in a state electorate, concerning the record and suitability of a candidate for election to a state parliament. Such statements are at the heart of the freedom of communication protected by the Constitution. They are published to a comparatively small audience, most of whom have an immediate and direct interest in receiving information, arguments, facts and opinions concerning the candidates and their policies. In that context and constitutional framework, the application of traditional qualified privilege requires a holding that qualified privilege attaches to statements by electors, candidates and their helpers published to the electors of a state electorate on matters relevant to the record and suitability of candidates for the election."

"Nothing in Lang v Willis [(1934) [1934] HCA 51; 52 CLR 637] generally, and nothing in the judgment of Dixon J in that case in particular, requires a contrary finding. All that Dixon J said in Lang [at 667] is that election speeches made to a large audience of unidentified persons are not privileged even though 'the speaker deals with matters in which the electors have an interest'. Those remarks were made nearly 60 years before this Court recognised the impact that the Constitution has on the law of defamation in respect of governmental and political matters."

39 In Roberts v Bass defamatory material, in the nature of "how to vote cards" and electioneering pamphlets, concerning the plaintiff, a candidate for a seat in the South Australian Parliament, had been circulated during an election campaign by the defendants, who were electors in that seat. At the trial it was held that the occasion of each publication was privileged but that the traditional qualified privilege was defeated by malice and the extended privilege did not apply because the defendants' conduct had not been reasonable. An appeal by the defendants to the Full Court of South Australia, limited to the finding of malice in respect of traditional privilege, was dismissed. The defendants appealed to the High Court. One of the questions on the appeal was whether a lack of belief or lack of honest belief in the truth of the defamatory matter by those distributing it was equivalent to knowledge of falsity or malice.

"In Lange, the Court pointed out that, although the constitutional freedom confers no rights on individuals, it invalidates any statutory rule that is inconsistent with that freedom. It also requires that the rules of the common law conform with the Constitution, for 'the common law in Australia cannot run counter to constitutional imperatives'. It is necessary therefore to determine the extent to which, if at all, the common law rules concerning the traditional defence of qualified privilege applicable in this case are consistent with the constitutional freedom of communication.

In determining whether a rule of the common law is consistent with the constitutional freedom of expression, two questions have to be answered. First, does the rule effectively burden the freedom? Second, if so, is the rule reasonably appropriate and adapted to serve a legitimate end compatible with the constitutionally prescribed system of representative and responsible government? If the answer to the second question is 'no', the common law rule must yield to the constitutional norm, for the common law's impact on the freedom cannot be greater than that permitted by the constitutional norm."

41 In relation to the issues in that case, their Honours, after referring to those questions, went on at 187 - 8:

"The first question posed by Lange is answered affirmatively in cases like the present because the law of defamation by providing for damages for defamatory publications has a chilling effect on freedom of communication on political matters. The second question would have to be answered negatively if lack of belief or lack of honest belief in defamatory election material would destroy a defence of qualified privilege. ... If, contrary to our view, the common law made a positive belief in the truth of electoral statements a condition of the law of qualified privilege, it would be inconsistent with the Constitution and would have to be developed to accord with the Constitution's requirements."

42 I accept that it is arguable that the broadcast was concerned with political matters of the nature contended for by the third defendant. In my view, in light of the decision in Roberts v Bass that, as applied to communications on political matters, the traditional doctrine of qualified privilege must yield to the constitutional norm, it is arguable that traditional qualified privilege is capable of extending to the words spoken by the third defendant on the broadcast.

43 In his oral submissions, counsel for the third defendant also took a slightly different tack. He submitted that the traditional doctrine of qualified privilege applies in this case because the words spoken by the third defendant were a reply to an attack. The attack was that of the second defendant who, it was submitted, in the course of the broadcast had attacked the conduct of ministers and senior members of the government in connection with their dealings with members of the Mickelberg family. Counsel referred to Adam v Ward [1917] AC 309 and Loveday (supra).

44 Counsel for the third defendant conceded that, in those cases, the reply that was published by the defendant was a reply to an attack on him by the plaintiff. He submitted, however, that, as a matter of principle, the present case was not relevantly different. Where, as here, the third defendant had been attacked by the second defendant in relation to dealings by some government members with members of the Mickelberg family, defamatory comments about members of the Mickelberg family made by the third defendant, as Premier, in a reply to that attack, were privileged, as those comments were reasonably incidental to a legitimate reply to the second defendant's attack.

45 In Loveday v Sun Newspapers Ltd (supra) at 521, Dixon J put the principle in this way:

" ... if A attacks B and in order to defend himself B reasonably publishes defamatory matter of C, who has been no party to the attack, B's privilege will protect him as against C (Coward v Wellington [1837] EngR 58; 173 ER 234)".

46 On this basis, too, I do not regard the defence is so obviously unarguable and lacking in merit that it should be struck out at this stage.

47 The third defendant has also pleaded qualified privilege defences based specifically on the principles in Lange. They are pleaded in pars 16 and 20 of the defence.

48 The first objection taken by the plaintiffs to those pleas is that the particulars to subpars (c) and (d) in each case do not support the substantive pleas. Those subparagraphs plead that the third defendant took proper steps to verify the accuracy of the words he spoke (subpar (c)) and did not believe that the views he expressed were inaccurate, unjustified, or based on facts which were untrue (subpar (d)). In each case, the particulars allege that, prior to participating in the interview, the third defendant was generally aware of media reports of plans by members of the Mickelberg family to emigrate to New Zealand, of their solicitations of support from members of Parliament and of a failure to disclose pending drug charges against two members of the family before seeking the support of a government Minister, Mrs Edwards. It is pleaded that the third defendant believed the essence of those media reports to be reliable.

49 Counsel for the plaintiff did not develop this objection in his oral submissions. He did, however, observe that it was "an amazing plea" that the third defendant had taken proper steps to verify the accuracy of the words he spoke, and did not believe that the views he expressed were inaccurate, because he had relied on media reports about the matter.

50 Whether or not such a contention is "amazing", on which I need offer no view, it is not sufficient, in my view, to justify striking out those pleas at this stage. They are matters for trial.

51 The plaintiffs' substantive attack was on subpar (e) in each case, which pleads that the third defendant, as an invitee to the radio programme, was not in a position to offer the plaintiffs an opportunity to respond over the radio.

52 Counsel for the plaintiffs argued that the plea that the provision of a response was not practicable was not made out on the facts pleaded and therefore pars 16 and 20 disclosed no arguable defence. He submitted that it followed from the decision in Lange that, except where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond, the making of a defamatory statement was not reasonable unless the defendant gave the plaintiff an opportunity to respond to it. In other words, outside those limited exceptions, it was mandatory for the defendant to give the plaintiff an opportunity to respond.

53 The starting-point is the plea in the defence that it was not practicable for the third defendant to provide the plaintiffs with an opportunity to respond.

54 The plaintiffs' counsel argued, first, that it was not the case that the circumstances pleaded prevented the plaintiffs being given an opportunity to respond; they could have been contacted by telephone to participate in the interview. Alternatively, if it was not practicable at that time to provide such an opportunity, the third defendant should not have made the defamatory statements until an adequate opportunity to respond could be provided. The fact that the third defendant was not able to provide an opportunity to respond was a problem of his own making; he chose to make the statements in circumstances where he knew he was not in a position to provide that opportunity. It could not be said in those circumstances that it was impracticable to provide the plaintiffs with an opportunity to respond within the principle in Lange's case.

55 There appeared to underlie the plaintiffs' argument a more fundamental proposition that it is not reasonable to make defamatory statements concerning a person if the maker of the statements realises that he or she is not then in a position to give the person an opportunity to respond to them, and the exigencies of the situation do not necessitate the defamatory statements being made there and then.

56 In Lange the circumstances of the live broadcast of an interview did not arise for consideration. I have not been directed to, and I have not been able to locate, any cases that have considered circumstances clearly analogous to the present. In my view, however, it cannot be said that the plea in pars 16 and 20 respectively, that in the circumstances it was not practicable to provide the plaintiffs with an opportunity to respond, is plainly unarguable. This is an evolving and still relatively uncharted area of the law. As Anderson J observed in International Financing & Investment Pty Ltd v Kent & Anor, unreported; SCt of WA (Anderson J); Library No 990187; 9 April 1998, the extent of the protection afforded by this doctrine is still to be worked out and that will have to be done on a case-by-case basis.

57 Counsel for the third defendant submitted that, in any event, it is not the case that, unless a response is not practicable or is unnecessary, it is mandatory to provide the plaintiff with an opportunity to respond. Whether or not there is any obligation on a defendant to provide a plaintiff with an opportunity to respond depends on all the circumstances. The fact that such a response was not provided does not of itself preclude the availability of the defence, even if the defendant fails to establish that the provision of an opportunity to respond was not practicable.

58 It appears that there is a conflict of authority on the question of whether or not, unless a response is not practicable or is unnecessary, it is mandatory to provide the plaintiff with an opportunity to respond. I was referred to the decision of McLure J of this Court in Cock & Anor v Hughes & Ors [2002] WASC 263, which supports the third defendant's proposition, and to the decision of Bongiorno J of the Victorian Supreme Court in Popovic v Herald and Weekly Times Ltd & Anor [2002] VSC 174, which supports the plaintiffs' proposition. I understand that the latter decision is the subject of an appeal, but that judgment on the appeal has not yet been handed down. Counsel for the plaintiffs also contended that the decision in International Financing & Investment Pty Ltd v Kent & Anor (supra) supported the plaintiffs' proposition, although it does not seem to me that the question arose for decision in that case.

59 The starting-point is obviously what was said by the High Court in Lange. Relevantly, at 574, the Court said:

"Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond."

60 It was submitted by counsel for the plaintiffs that the third sentence in that passage is a separate requirement and is not governed by the phrase "as a general rule" in the second sentence. It is therefore a mandatory requirement, except where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.

61 The plaintiffs also relied on Popovic (supra). In that case, the defendants did not assert that they had sought any response from the plaintiff before publishing the defamatory material. At 60 - 61, Bongiorno J said:

"The requirement which the High Court put upon a person publishing defamatory material who sought the extended qualified privilege to seek a response from the person defamed is not qualified by words such as 'as a general rule'. The only exceptions to the requirement laid down by the Court are where it is not practicable to comply with it or it was unnecessary to give the plaintiff an opportunity to respond.

The requirement is not surprising. Lange qualified privilege permits defamatory material, even grossly defamatory material, to be published about a plaintiff provided the publication is in the course of a discussion about government or political matters. That the person about whom the material is published be given an opportunity to confront that material and respond if he or she wishes is not a counsel of perfection. It is a necessary ingredient of the condition of reasonableness which the law places upon the privilege."

62 As I have mentioned, the third defendant relied on Cock & Anor v Hughes & Ors (supra). In that case, the defendants did not plead that they had sought any response from the plaintiffs. McLure J said at 41 - 42:

"41 A publisher relying on that category of qualified privilege to protect a publication that would otherwise have been held to have been made to too wide an audience must establish that its conduct in making the publication was reasonable in all the circumstances: Lange at 573. On the subject of what is reasonable the Court said (at 574):

'Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond.'

42 Thus, there is no absolute and invariable requirement that a defendant contact the person defamed and seek and publish any response from that person. Whether it is a necessary ingredient will depend on all the circumstances of the case. I agree with Hasluck J that it is arguable the first defendant acted reasonably notwithstanding the absence of a plea that it sought and published any response from the plaintiffs."

63 With respect, I accept the view of McLure J. It seems to me, again with respect, that the view taken in Popovic, and contended for by the plaintiffs on this application, would be to impose an inflexibility of approach that is inconsistent with the admonishment in the opening sentence in the above extract from Lange that whether or not the making of the publication was reasonable must depend upon all the circumstances of the case.

64 At the least, I do not consider, on the current state of the authorities, that the position can be regarded as settled. This is not, therefore, a matter that it is appropriate to determine on an application of this sort. It is a matter for trial, not a pleading summons.

65 It follows that I would decline to strike out pars 15, 16, 19 and 20 of the third defendant's defence.

66 I will turn now to the objections taken to the defence of the first and second defendants.

67 The first complaint is as to par 11 of the defence, which pleads justification to the imputations pleaded by the plaintiffs in pars 10A(b) and 11A(b). The second plaintiff contends that, in each case, the matters relied upon are incapable of giving rise to a defence of justification.

68 It is necessary to set out those pleas. Paragraphs 10A(b) and 11A(b) of the statement of claim are as follows:

"10A. The statements made by the second defendant and forming part of the Words by innuendo meant or were understood to mean that:

...

(b) the second plaintiff has a history of deceitful behaviour.

...

11A. The statements made by the third defendant and forming part of the Words by innuendo meant or were understood to mean that:

...

(b) the second plaintiff has a history of deceitful behaviour;

... "

69 Paragraph 11 of the defence of the first and second defendants is as follows:

"11 Further and in the alternative if, which is denied, the matter complained of referred to the second plaintiff and was defamatory of her and conveyed the imputations pleaded in paragraph 10A(b) and or 11A(b) the first defendant and the second defendant say that the matters were true in substance and in fact.

(a) The first defendant and the second defendant repeat the particulars to paragraph 10 hereof.

(b) The second plaintiff had a number of opportunities to disclose to Mrs Edwardes that Raymond Mickelberg and his son Ross Mickelberg were facing charges in the District Court of Western Australia namely during the her telephone conversation with Mrs Edwardes electoral office secretary on or about 19 November 1999; during the her telephone conversation with Mrs Edwardes on 19 November 1999; in the facsimile to Mrs Edwardes' electoral office on 19 November 1999; during her meeting with Mrs Edwardes on 20 November 1999 and at any time during the approach to Mrs Edwardes however the second plaintiff failed to make that disclosure.

(c) By reason of the matters pleaded in paragraph 11(b) and (c) hereof the second plaintiff acted deceitfully and thereby established for herself a history of past deceitful behaviour as at 18 April 2000."

70 The particulars to par 10 of the defence, referred to in par 11(a) above, are as follows:

(a) On or about 19 November 1999 the second plaintiff acting on her own behalf and on behalf of the first plaintiff and Raymond Mickelberg telephoned the electoral office of Cheryl Edwardes, a member of the Western Australian Liberal Party and spoke to Mrs Edwardes' electoral office secretary to request Mrs Edwardes to provide a reference herself, the first plaintiff, their children and Raymond Mickelberg with respect to an application for residency in New Zealand.

(b) On 19 November 1999 the second plaintiff acting on her own behalf and on behalf of the first plaintiff and Raymond Mickelberg spoke by telephone with Mrs Edwardes and requested Mrs Edwardes to provide a reference for herself, the first plaintiff, their children and Raymond Mickelberg with respect to an application for residency in New Zealand.

(c) On 19 November 1999 the second plaintiff acting on her own behalf and on behalf of the first plaintiff and Raymond Mickelberg caused to be sent to Mrs Edwardes' office by facsimile copies of other references that had been obtained for the same purpose.

(d) On 20 November 1999 the second plaintiff acting on her own behalf and on behalf of the first plaintiff and Raymond Mickelberg attended with Raymond Mickelberg on Mrs Edwardes to obtain the reference.

(c) During the course of the meeting on 20 November 1999 the first plaintiff sent to Mrs Edward's office by facsimile copies of other references that had been obtained for the same purpose.

(f) During the course of the meeting on 20 November 1999 Mrs Edwardes asked in effect whether there were any legal proceedings still on foot and Raymond Mickelberg in the presence of the second plaintiff said in effect that his lawyer wanted to take an appeal to the High Court but that he just wanted to drop the matter.

(g) On 24 November 1999 the first plaintiff and the second plaintiff acting on their own behalf and on behalf of Raymond Mickelberg attended on Mrs Edwardes' office to request that a copy of the reference be sent by facsimile to the New Zealand Department of Immigration which was done on that day.

(h) On 25 November 1999 the first plaintiff and Raymond Mickelberg sent a facsimile to Mrs Edwardes stating that without her support and that of Phillip Ruddock they would not succeed with their application.

(i) At no time prior to the provision of the reference did the first plaintiff or the second plaintiff advise Mrs Edwardes that, as was the fact, as at November 1999:

(i) Raymond Mickelberg and his son Ross Mickelberg were facing charges in the District Court of Western Australia for conspiracy to possess cannabis with the intent to sell or supply and for possessing cannabis with intent to sell or supply; or

(ii) Raymond Mickelberg was facing fraud charges in the District Court relating to an alleged attempt to obtain a commercial fishing licence."

71 Counsel for the plaintiffs argued that par 11 of the defence was untenable because one instance of deceitful behaviour (and he stressed that the allegation of deceitful behaviour was denied) could not constitute a "history of deceitful behaviour".

72 Counsel for the first and second defendants argued first, that one event of deceitful behaviour was capable of establishing a history of deceitful behaviour. Secondly, the particulars referred not to one event, but to a series of events from 19 October 1999 to 25 October 1999 and they were capable of constituting a "history". Thirdly, that the meaning must be looked at as at the time of publication in April 2000, so the events of November 1999 were by then a matter of history.

73 I do not agree that one event of deceitful behaviour (if proved) is capable of constituting a history of deceitful behaviour. That does not accord with the ordinary usage of those words, nor with the dictionary meaning. According to the Macquarie Dictionary, the word "history" means, relevantly, "2. the record of past events ... 3. a continuous, systematic written narrative, in order of time, of past events as relating to a particular ... person, etc. ... 4. the aggregate of past events". It connotes, in my view, a plurality of events over time.

74 I also do not accept that, in the context, an imputation of "a history of deceitful behaviour" is capable of being made out by reference only to the events of November 1999 referred to. I therefore consider that the plea, as it stands, is untenable and should be struck out.

75 I should mention that a similar defence is pleaded by the third defendant, but that has not been attacked. Counsel for the plaintiffs told me in the course of argument that that was simply an oversight when this application was made.

76 The next objection was to the defences of fair comment pleaded in pars 13 and 14 of the defence of the first and second defendant. The plaintiffs' objection was the same as that taken to the equivalent defences pleaded by the third defendant, namely, that the defendants are required to specify that part of the Words said to constitute the comment, and to state the comment itself.

77 In my view, for the reasons I have expressed in relation to the defence of the third defendant, the first and second defendants are not required to specify the part of the Words said to constitute the comment. They are, however, required to plead the substance of the comment they contend is to be found in the Words. In that respect, I would make the same order as I would make in relation to the defence of the third defendant.

78 The plaintiffs also objected to the defences of qualified privilege pleaded by the first and second defendants at pars 15 and 16 of their defence. Those defences are in similar terms to the defences of qualified privilege pleaded by the third defendant and all but two of the objections to them were also similar. To that extent, I consider the plaintiffs' application to strike them out must fail.

79 There were, however, two additional issues raised. First, it was contended on behalf of the plaintiffs that, whatever privilege might attach to words spoken by the third defendant, it did not extend to the publication of those words by the first defendant and no privilege applied to words spoken by the second defendant. Secondly, it was submitted that the particulars given of the qualified privilege defence based on Lange's case did not support the plea, because they were in terms that were too general and vague.

80 As I have said, the application was argued on the basis that there are two categories of qualified privilege. Turning first to traditional qualified privilege, it was argued for the plaintiffs that there can be no such privilege available to the first and second defendants, because the second defendant, in his capacity as an employee of the first defendant, was the attacker who evoked the statements made by the third defendant. The first and second defendants had, in effect, brought about the defamatory publication and they could not, at the same time, claim that it was on an occasion of privilege.

81 It is accepted that, where it is appropriate to publish a privileged statement in the mass media, the publisher of the statement will also be entitled to an attendant privilege. In Loveday v Sun Newspapers Ltd (supra), Dixon J said at 519:

82 "A privilege would be of no value if the means of exercising it were not also protected. If the party attacked is given a privilege to reply through the public press, the publisher of a newspaper who allows the use of his columns for the purpose must also enjoy an attendant privilege ... The reason for the privilege of the newspaper publisher is that it is right and for the common convenience and welfare of society that he should lend the aid of his newspaper to the party who is entitled publicly to repel that attack or answer the criticism."

83 But his Honour pointed out (at 520 - 1) that a newspaper possesses no such privilege for the purpose of informing its readers that someone has attacked or criticised someone and that a given reply has been made to the criticism. No situation exists then casting upon the newspaper any duty to communicate to anyone the attack and the response. That is simply news about something done by those parties.

84 The plaintiffs contended that, equally, because in this case the first and second defendants had made the attack and then reported the third defendant's response to it, no privilege could apply to the publications of the first and second defendants.

85 There is considerable force in that submission so far as these defendants seek to rely on the concept of a reply to an attack. The defendants' case on traditional privilege does not, however, rest, or rest solely, on an attendant privilege based on a reply to an attack, but also on the basis explained in Roberts v Bass (supra). When it is viewed in the context of a privilege relating to communications on political matters, it is cast in a somewhat different light. I do not consider that, in that light, the defence can be regarded as so devoid of merit that it should be struck out. The position is the same with the defence based on Lange's case. The extent of the privilege to which an interviewer and a broadcaster may be entitled in the circumstances of a live broadcast of an interview dealing, or arguably dealing, with political matters is not something which, on the present state of the law, is appropriately to be determined on an interlocutory application of this nature.

86 As to the plaintiffs' second objection, it is true that the grounds of the defence based on Lange's case are pleaded in general terms. I do not, however, consider that that is a basis upon which the defence should be struck out. I accept the argument of counsel for the first and second defendants that the plaintiffs should request the particulars they require of those defences.

87 I would therefore decline to strike out pars 15 and 16 of the defence of the first and second defendants.

88 It follows, then, that I would strike out pars 8 and 10 of the third defendant's defence and par 11 of the defence of the first and second defendants, with leave to replead in each case. I would otherwise dismiss the plaintiffs' applications.

89 I will hear the parties on the form of the orders and costs.

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2003] WASC 209

At a glance

Court

Decision date

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Judgment (141 paragraphs)

Mickelberg & Anor v 6pr Southern Cross Radio Pty Ltd & Ors [2003] WASC 209 (31 October 2003)

Parties

Cases Cited (13)