Brown v Marron & Anor [2001] WASC 100

Bruce v Odhams Press Ltd [1936] 1 KB 697

Buttes Gas & Oil Co v Hammer [1975] 1 QB 557

Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658

McDonald's Corp v Steel [1995] 3 All ER 615

Waters v Sunday Pictorial Newspapers [1961] 1 WLR 967

1 McLURE J: The applicant applies to strike out parts of the first and second defendants' defence in this defamation action. The statement of claim was filed on 16 March 2001. The defendants filed a defence dated 30 March 2001. The applicant applied by chamber summons dated 9 May 2001 to strike out specified paragraphs of that defence. After the strike-out application was filed and served, the defendants filed and served a proposed amended defence dated 18 May 2001. The proposed amended defence addressed one of the applicant's objections by adding particulars of facts upon which the defence of fair comment was based. The parties proceeded on the basis that the strike-out application related to the proposed amended defence ("defence").

2 In order to understand the applicant's contentions, it is necessary to set out the words complained of. They are as follows:

"4.1 at approximately 11.14am or thereabouts:

Paul Murray: 'Okay. That's Kate Moir and for the people

at The Sunday Times I didn't seek Kate Moir's interview today. She came to us and if you want to respond to it, you know where I am, you know the number 9221 1233. I know it's the day off for many people at The Sunday Times today but if someone from the management or the hierarchy there wants to respond to what Kate Moir said, give us a call. There's 45 minutes left on the show. I'd love to hear from you.'

Paul Murray: 'You're with Paul Murray on 882 6PR. 14

past 11.'

4.2 at approximately 11.50am or thereabouts:

Paul Murray: 'Just after 11 o'clock this morning I had on

the program Kate Moir. Kate Moir featured on page 1 of The Sunday Times this week. The story is headed "Birnie's Victim Breaks Silence" and she rang into the program and I asked Kate Moir why she had broken her silence and this is what she said:

Plaintiff 'I didn't. This is what exactly what I am

trying to get at. On Friday morning I was on your program with Adrian and Basil.

Paul Murray: Yeah.

Plaintiff. I was talking about crime in Northbridge.

Because they are the first people I met in 8 months to do with the media who allowed me to speak about things that matter rather than just treat me like the victim of the Birnies. I have spent 15 years establishing to the general public that I am not the victim of the Birnies but the survivor. And in one foul swoop Gary Adshead against express instructions he was never given permission ever to mention anything about the Birnies by me has gone and sensationalised this so as to beat the fact that I am talking on Channel 7 on Monday night. But the reason I was talking to Channel 7 on Monday night is because we don't even talk about the Birnies. We talked about the fact that the media and everybody had lost the plot. Now under section 36(C)(6) you cannot reveal the identity of the sex attack victim without their express consent.

Paul Murray: That's the Criminal Code?

Plaintiff. Correct. So they've committed a contempt of Court. Secondly the reason they have photos of my boyfriend and I outside of our business is because we have been trying to get them to do a story about violence in Northbridge. They have expressly without my consent used the story because of the sensationalist and trivial way in which ... that's a 15 year thing ... do you understand? It's like ....

Paul Murray: Yeah I certainly do.'"

Paul Murray: 'Okay that's what Kate Moir said when she

rang in. The story in question on page 1 of The Sunday Times is written by John Flint and Gary Adshead. John Flint's with me now. G'day Flinty.'

First Defendant: 'G'day Paul. How are you?'

Paul Murray: 'Very well. What have you got to say to

what Kate Moir told us this morning?'

First Defendant Interesting to hear what she has to say but

not surprising. Because she's been kicking up a little bit of a stink since the story first went to Press on Saturday night. I'm afraid to say Kate's being a little bit selective with the truth. I think she must be worried that she is not going to get her money from Channel 7. She came through, I'll tell you the story from the beginning. Basically, Kate and her boyfriend came through our front door on a busy Saturday about 6 weeks ago just before Christmas and she demanded to see a reporter. Her opening gambit was that she was prepared to tell the Birnie story if it meant getting something done about crime in Northbridge. Now we were very busy that afternoon, we were trying to put a paper to bed but myself, as Chief Reporter and Gary Adshead stopped what we were doing and spent the next 21/2 hours with Kate and her boyfriend and I can assure you that throughout that interview nothing, absolutely nothing was off the record. At the end of the interview she asked if it would be possible for us to read the story back to her after it was written. Now time was running out. We said we would read the story to her between editions. As it turned out we held the story for the first edition and I rang her as the Metro edition was being put to bed. On hearing the story read back to her she shrank back from her original position and said she only wanted a story on Northbridge. She didn't even want us to re-cap on what the Birnies did, that is not just with regard to herself but with regard for the others and it was evident and perhaps understandable that maybe she had a change of heart and she didn't want herself identified as, she puts it, the Birnie's survivor. Now, with the clock ticking away we opted to pull the story which wasn't, you know, which was creating some difficulty for us at the time but we dealt with those. We felt we did the right thing, other newspapers might not have done the same. Now, since then my colleague Gary Adshead has invested a lot of time trying to retrieve the situation, as you do. You know, you've got a good story, it's ready to go then all of a sudden it's pulled. We wanted to try and see if we could arrive at some sort of compromise. We wanted her to be happy with the end product. Now, she made encouraging noises that maybe at some tune [sic] in the future we could tell her story. So, it was with some surprise and we felt a little bit led up the garden path when we discovered on Friday that she had given a full and frank interview with Channel 7 for money. Now, if Paul you, I don't know if you've seen the Channel 7 promo which has been running since Friday night?'

Paul Murray: 'No, I haven't John.'

First Defendant: 'Its very, very explicit in the promo that it's

not about, I mean I'm sure the programme will focus on some of the issues that Kate has been hammering with regard to crime in Northbridge and, particularly, around the cultural centre precinct. But, the way they lead off into the story is all about the Birnies. It's all about the Birnies, and they used the same word almost, I think, I haven't you know, I have watched it two or three times, but I think they use the word victim as well. But, it's clear where they're coming from and we felt on Friday that we were having the rug pulled from under us. I mean, one of the things why we were originally very impressed with Kate was that she said that down the years she has resisted numerous financial offers to tell her story and she finally had a gut full with what was happening to her business and to some of the other businesses in Northbridge and she said "I wanted to tell this story for the right reasons rather than the wrong reasons. I want it to be a weapon to get things done". Now, that is a very powerful quote and we took her on her word but when she, having heard the story read back to her, as sometimes people do, you know what it's like. You interview someone and then when they see the story in the cold light of day in bold print sometimes they think, oh crikey and they shrink back from that.'

Paul Murray: 'So did she ring you between editions on Saturday night and try to have the story pulled again?'

First Defendant: 'No, what happened was that the story

never ran in the first editions. I rang her, as I had given an undertaking to do, and I read the story back to her. As soon as the Birnie word was mentioned she decided, oh no I want it to be just about the crime in Northbridge. Now, as you know Paul, as former editor of The West Australian that Northbridge is regularly touched on in newspapers and also by the electronic media and I mean, it is just coincidental that this weekend we have got a page 4 story on some of the major issues that are ongoing in Northbridge and we have got a two page spread also in the paper specifically about some of the crime issues in and around the cultural centre precinct. So we are not turning a blind eye to that story, not at all. But, our understanding of Kate was and again to quote her she was prepared to use what happened to her with the Birnies and her story the fact that she was the crime vic..., well I'll use her word again, crime survivor then but she is a crime victim still. She wanted to use it as a weapon to get things done.'

Paul Murray: 'Okay, John we're going to have to leave it

there. Thanks very much for calling and letting us know about that.'"

3 The applicant pleads in par 8 of the statement of claim that in their natural and ordinary meaning the words complained of meant or were understood to mean:

"8.1 the Plaintiff is a liar;

8.2 the Plaintiff lacks integrity and ethics in that the Plaintiff is motivated principally by financial gain and told mistruths for financial gain;

8.3 the Plaintiff is a hypocrite in that whilst purporting to grant interviews for the public interest, her principal motive in granting interviews is financial gain;

8.4 the Plaintiff acted deceptively and dishonestly in her dealings with 'The Sunday Times'."

4 The applicant's strike-out application attacks subpars 3.1, 3.2, 3.3 and 3.4 of the defence (which contain particulars of justification) and a Polly Peck justification defence in par 4.1 of the defence.

5 The relevant parts of the defence are as follows:

"PARTICULARS OF JUSTIFICATION OF SUB-PARAGRAPH 8.1

3.1 During the course of an interview ('the first interview') provided by the plaintiff to Mr Paul Murray and broadcast on radio station Perth 6PR on the morning of Monday 5 February 2001 before the First Defendant's Radio Publication the plaintiff told Murray and therefore the listening audience an untruth namely that she had provided the first defendant and Gary Adshead an interview ('the Sunday Times interview') upon the express condition that the second defendant would not publish an extract from the Sunday Times interview when the plaintiff had not expressed that condition to either the first or the second defendant or Gary Adshead.

PARTICULARS OF JUSTIFICATION OF SUB-PARAGRAPH 8.2

3.2 Before the first interview but after the Sunday Times interview the plaintiff had sold her story of a notorious crime having been committed upon her ('her story') to television broadcaster Channel Seven, Perth for $10,000.00 and two around the world airline tickets and had falsely told Channel Seven, Perth and Murray in the first interview that she had provided the Sunday Times interview with the first defendant and Gary Adshead upon the express condition that the second defendant would not publish an extract from the Sunday Times interview.

PARTICULARS OF JUSTIFICATION OF SUB-PARAGRAPH 8.3

3.3 The plaintiff asserted during the first interview that her motivation in providing the Sunday Times interview was the public interest but failed to disclose in the first interview that she had sold her story to Channel Seven, Perth for personal gain.

PARTICULARS OF JUSTIFICATION OF SUB-PARAGRAPH 8.4

3.4 The plaintiff attempted to persuade the first and second defendants not to publish an extract from the Sunday Times interview whilst failing to disclose that she had sold her story to Channel Seven, Perth for personal gain.

POLLY PECK IMPUTATIONS

4. Alternatively, the words referred to meant or were understood to mean or were capable of meaning or were capable of being understood to mean in their ordinary and natural context that:

4.1 The plaintiff had deliberately misled Paul Murray and the listening audience during the first interview to believe that she had imposed as a condition upon the first and second defendants that they would not publish an extract from the Sunday Times interview without her consent.

PARTICULARS OF JUSTIFICATION OF SUB-PARAGRAPH 4.1

4.1.1 The plaintiff had requested the Sunday Times interview first.

4.1.2 The Sunday Times interview had been provided freely and voluntarily.

4.1.3 The plaintiff imposed no conditions upon the first and second defendants publishing an extract from the Sunday Times interview.

4.1.4 The plaintiff told Paul Murray that she had imposed a condition upon the publication of an extract of the Sunday Times interview, namely that any publication of it was to be subject to the provision of her consent.

4.1.5 At no time did the plaintiff impose a condition upon the publication of an extract of the Sunday Times interview."

6 The subparagraphs of the defence are attacked on the grounds that they disclose no reasonable defence or may prejudice, embarrass or delay the fair trial of the action contrary to O 20 r 19(1)(a) and (c) of the Supreme Court Rules.

7 This is a somewhat unusual case. The source of the particulars of justification of the imputation in par 8.1 that the applicant "is a liar" is what the applicant said in the course of the radio interview with Mr Murray which is part of the words complained of. The usual issue in defamation proceedings is whether the words complained of are capable of bearing the pleaded imputations. This case concerns whether part of the words complained of are capable of supporting the particulars of justification.

8 The applicant contends that what she said in the course of her radio interview with Mr Murray does not support the statements in the particulars of justification that:

(a) the applicant imposed a condition on the second defendant;

(b) the condition was imposed prior to the applicant giving the interview to The Sunday Times;

(c) the scope of the condition was that the second defendant would not publish an extract from The Sunday Times interview.

9 The applicant does not go further and suggest that the substance of the plea of untruth relied on is incapable of justifying the pleaded imputation.

10 The test to be applied in a strike-out application is not in dispute. There will be no reasonable defence if the case is so obviously untenable it cannot possibly succeed or is manifestly groundless: General Steel Industries Inc v Commissioner for Railways of New South Wales [1964] HCA 69; (1964) 112 CLR 125 at 130. That is also the test applied in determining whether the words complained of are capable (as a matter of law) of supporting a pleaded imputation: Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 at 675; Smith v Littlemore (1996) 15 WAR 289 at 294. If the words complained of are capable of conveying a defamatory imputation, then it is a question for the trier of fact to decide whether the words do, in fact, convey the imputation: Jones v Skelton [1963] 1 WLR 1362 at 1370. In determining whether the words are capable of supporting a pleaded imputation, various statements of principle are adopted. They are conveniently collected in the judgment of the Privy Council in Jones v Skelton at 1370 - 1371 and include the following:

(a) the Court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation;

(b) whether in the circumstances in which the publication was published, reasonable people to whom the publication was made would be likely to understand it in the requisite sense;

(c) the ordinary and natural meaning may include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words;

(d) the ordinary, reasonable person is not unreasonably suspicious or unusually naive or avid for scandal;

(e) the ordinary reasonable reader is a lay person and must be regarded as prone to engage in loose thinking in relation to sensational publications and to have a capacity for implication which is greater than that of the lawyer, especially when the imputation is derogatory.

11 In my opinion, these statements of principle do not all apply to the question in issue in this case. That is so because in determining whether a defamatory imputation arises, the intention of the person who published the words is irrelevant. In the particulars of justification in par 3.1 of the defence, the defendants rely upon statements made by the applicant to Paul Murray which the defendants say she knew to be false. Accordingly, what the applicant intended to convey is relevant. Even so, it remains the case that words can have a literal meaning and an inferential meaning (by which term I include an implied or inferred or indirect meaning) and it is to be expected that, in the absence of evidence to the contrary, the publisher intended to convey the literal and inferential meanings. If there is an arguable case that the applicant's interview with Mr Murray supports the particulars of justification, the defence will not be manifestly groundless and the strike-out application must fail. If there is an air of artificiality about confining the defendants to the applicant's interview with Mr Murray, that is because of the way the defendants have chosen to frame their defence rather than any restriction which the law of defamation imposes. The defendants are not confined to the words complained of in justifying the relevant imputation.

12 Both parties proceeded on the assumption that the replay of the interview between the applicant and Mr Murray broadcast at about 11.50 am (pleaded in the words complained of) is the entirety of the interview broadcast earlier at about 11 am on the same day. I will proceed on that assumption. The applicant's first two grounds of complaint are related insofar as both depend on the defendants' use of the word "condition". In the context of the particulars of justification, the word "condition" means something upon which the fulfilment of something else depends. Implicit in the concept of "condition" is that it exists or is imposed before the dependent conduct or event occurs.

13 In support of their plea, the defendants rely on the applicant's statements in the interview that "in one foul swoop Gary Adshead against express instructions he was never given permission ever to mention anything about the Birnies" and the further statement that "they have expressly without my consent used the story". Thus, the defendants do not rely on the literal meaning of the words, but on inferences.

14 The words relied on by the defendants arguably support an inference that the applicant imposed a condition. However, the strength of the argument is considerably weakened when those words are considered in the context of the applicant's reference to "s 36(C)(6)" and the statutory prohibition against publication. Even so, in my opinion, the applicant has not demonstrated that the inference of a condition is manifestly groundless or unarguable.

15 However, the applicant's statements do not arguably support the scope of the pleaded condition which is that the second defendant would not publish an extract of the interview given by the applicant in The Sunday Times. The applicant's words in context go no further than information about the applicant and the Birnies. For this reason I propose to strike out par 3.1 of the defence.

16 The applicant relies on her submissions concerning the existence and scope of the condition pleaded by the defendants which is in the same terms as that pleaded in par 3.1. For the reasons given earlier, the scope of the condition is not supported by the content of the applicant's interview with Mr Murray. The applicant's objections go further. She says there is no pleaded link, temporal, logical or otherwise between the untruth and the financial gain. I agree. If the defendants intend to assert that the applicant was prepared to lie about what she instructed the defendants in order to ensure that her commercial arrangement with Channel 7 was not jeopardised, then that must be clearly pleaded. The defendants' counsel conceded that par 3.2 requires amendment.

17 The applicant's contention is that the defendants' plea of mere failure to disclose in the radio interview that the plaintiff had sold her story to Channel 7 does not itself and without more justify the imputation of hypocrisy. I agree. The defendants must rely on something the applicant represented by word or conduct (which may include silence), or any combination thereof, concerning her motivation in seeking publicity which could be contrasted with her arrangements with Channel 7.

18 The applicant's contention is that the particulars, even if true, do not support the imputation that the plaintiff acted deceptively and dishonestly in her dealings with The Sunday Times. I agree. The defendants in their written submissions put their case in terms that the applicant did not reveal the complete picture or tell the whole truth when articulating her opposition to The Sunday Times publishing the story and this is the gravamen of the deceit or dishonest conduct. That explanation goes further than the pleaded particulars although not far enough. If the allegation is one of knowingly making a false misrepresentation then that needs to be clearly and fully pleaded. The defendants' counsel conceded that par 3.4 requires amendment.

19 The applicant does not contend that a Polly Peck defence is not available in this jurisdiction. The Polly Peck principles were approved by the Full Court of this Court in Gumina v William (No 2) (1990) 3 WAR 351. The criticism by Brennan CJ and McHugh J of the Polly Peck defence in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 resulted in a review of this area of the law by the Victorian Court of Appeal in David Syme & Co Ltd v Hore-Lacy [2000] VSCA 24. The Court in Hore-Lacy held that a defendant can plead a different meaning from that contended for by the plaintiff and then justify it, provided the meaning is not substantially different from nor more injurious than those pleaded by the plaintiff. That statement of the rule has been applied in this jurisdiction: Wallis & Ors v Wallis [2001] WASC 134; Reynolds v Nationwide News Pty Ltd [2001] WASC 90.

20 The applicant's attack on the Polly Peck plea is, firstly, that it does not arguably arise from the terms of the radio publication, secondly, it is, in effect, an attempt to introduce impermissible evidence by way of a purported plea of truth and, thirdly, is not derived from any legitimate or fair distillation of the radio publication.

21 I understand the first and second grounds of objection to be the same as the applicant's objection to par 3.1 of the defence. In their pleading of the Polly Peck imputation, the defendants have confined themselves to what the applicant said in her interview with Mr Murray. Accordingly, my ruling relating to par 3.1 also applies to the plea in par 4.1 of the defence.

22 The third objection is that the words complained of are incapable of supporting the less injurious imputation that the applicant deliberately misled Paul Murray, which is to be contrasted with the applicant's pleaded imputation of her being a liar. In my opinion, the respondents' imputation is arguable, having regard to the distinction between specific and general meanings and the question whether an imputation is one of general bad conduct and, if so, whether it can be justified by proof of a single act: Penton v Calwell [1945] HCA 51; (1945) 70 CLR 219 at 240 - 241.

23 The applicant has been successful in some aspects of her attacks on pars 3.1, 3.2, 3.3, 3.4 and 4.1 of the defence. However, in each case, the defects appear to be capable of being remedied. Accordingly, I propose to order that pars 3.1, 3.2, 3.3, 3.4 and 4.1 be struck out with the defendants having leave to amend.