Plaintiff v Defendant

"Where an endorsement of claim on a writ or originating motion or a pleading or any part of an endorsement of claim or pleading -

(a)

does not disclose a cause of action or defence;

(b)

is scandalous, frivolous or vexations;

(c)

may prejudice, embarrass or delay the fair trial of the proceeding; or

(d)

is otherwise an abuse of a process of the court - the court may order that the whole or part of the endorsement or pleading be struck out or amended."

8 In considering and determining the application, the court is confined to the face of the amended statement of claim and the parties are not entitled to place any evidence before the court.

9 It can be seen from the amended statement of claim that the plaintiff complains about publications in the newspaper and on the internet site. It is also clear that the greatest number of publications occurred in the State of Western Australia.

10 Paragraph 30 of the plaintiff's claim makes it clear that he is seeking damages in respect to the publications that occurred in the States of Victoria and Western Australia. As yet no defence has been delivered. It would be open to the defendant to plead defences known to Western Australian law in respect of the publications in that State. As foreign law has not been raised at this stage, the court must consider and determine this application in accordance with the law of this State.

11 Rule 23.02 is concerned with the situation where a party to the proceeding wishes to question the sufficiency of a pleading of the opposite party and is not concerned with the validity of any claim or defence. The purpose of the rule is to secure compliance with the rules of pleading and is not concerned with the defence itself[1].

12 On the other hand if there is some defect in the pleading which may embarrass or delay the fair hearing or may constitute an abuse of process, the rule may also apply. The Court may order that the whole or part of the pleading be struck out or amended.

13 The summons seeks an order that a number of the imputations which are pleaded as defamatory imputations, should be struck out on the basis that they do not disclose a cause of action or are otherwise likely to prejudice, embarrass or delay a fair hearing. The imputations under attack are found in paragraphs 5, 8, 11, 14, 17, 20 and 27 of the amended statement of claim. I have been informed that the defendant does not seek to press the summons in respect to paragraph 27 which deals with the seventh article.

14 As I have stated, all told there are seven separate publications relied upon. However if one multiplies the publications by two because of the publication on the internet site, there are 14 separate causes of action. It is convenient to deal with them as seven separate causes of action.

15 It was submitted by the defendant that some of the imputations are not open on a fair reading of the alleged defamatory material.

16 The plaintiff in each cause of action relies upon the natural and ordinary meaning of the words. He has not pleaded the true innuendo but relies upon what is called the false innuendo. This means that he does not seek to rely upon any extrinsic evidence in order to establish the defamatory nature of each publication.

17 The cause of action is in fact the defamatory article. The defamatory words which are complained of may contain a number of different defamatory imputations but the cause of action is a single cause of action. The cause of action must be found in the article complained of. It is not possible to adduce any facts in relation to the question of whether the words are defamatory.

18 The modern approach to pleading in defamation is to plead the defamatory imputations. It must be noted that they are no more and no less particulars of the imputations which will be relied upon by the plaintiff at trial. By way of an example, the plaintiff may plead five imputations but only succeed in persuading the jury of three. That does not mean his cause of action fails. In fact, he has succeeded.

19 The cause of action is based upon the defamatory nature of the article being the words complained of. Whether or not an article should be left to the tribunal of fact, is a question of law for the judge.

20 The plaintiff in fact sought trial by judge alone but the defendant has given notice that it seeks trial by jury and I will proceed on the basis that this proceeding will be heard by a jury.

21 Of course, whether or not the article is defamatory is ultimately a question for the tribunal of fact, that is, the jury. The tribunal of fact is not strictly bound by the particulars of imputations although the particulars will mark out the way the plaintiff puts his case[2].

22 The test to be applied to determine whether or not a particular imputation should be left to the tribunal of fact, is well settled. In Jones v. Skelton[3], the Privy Council said -

"It is well settled that the question whether the words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether the words are capable of conveying a defamatory meaning, the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation."

Their Lordships restated the principle at p.1372 -saying -

"It is to be emphasised that it is for the jury and not for the court to decide as to the meaning of words; the court's duty was the limited duty of deciding whether the words were or were not reasonably capable of conveying the suggested defamatory meanings." (emphasis added)

23 The plaintiff relies upon the ordinary and natural meaning of the words and that embraces the literal meaning as well as the implied, inferred or indirect meaning. It is a meaning which is capable of being determined from the language used as being the ordinary and natural meaning of the words.

24 As was pointed out in Lewis v. Daily Telegraph Ltd,[4] the ordinary and natural meaning includes implication or inference which the reasonable reader guided by no particular rules and not bound by any legal rules of construction would infer from the words. Hence, it is not appropriate for a judge to take into account mere conjectures or a strained meaning, but on the other hand if two meanings are reasonably open, if one is defamatory, it must be left to the tribunal of fact.

25 The trial is to be by jury. The judge will decide whether particular meanings can be left to the jury. The jury will decide what the words mean and whether they are defamatory of the plaintiff_[5]_.

26 In determining whether the words are defamatory, probably the best known test, and the one applied more often than not, is that stated by Lord Atkin in Sim v Stretch:[6]

"Would the words tend to lower the plaintiff in the estimation of right thinking members of society generally."

27 In considering the meaning and defamatory character of the words complained of, it is necessary to consider what meaning the average normal reader would attribute to the article.

28 In construing words in a defamation action, the jury does not use legal rules of interpretation but adopts a method of approach which recognises that the law is concerned with the effect of the words used on ordinary people. An account must be taken of the fact that the layman's capacity for implying matters is much greater than that of a lawyer.[7]

29 In my opinion, the person in the best position to decide whether the words are capable of being defamatory is the trial Judge who will have the benefit of conducting the trial and gaining a very good insight into the way the average reasonable reader would understand the words complained of.

30 In my view, one has to be extremely careful in an application such as the present. There is real scope for oppression and wearing the plaintiff down by interlocutory skirmishes in cases such as the present and in my view, it is more often than not better to leave the issue to the judge at trial. In my opinion, applications such as the present should be deterred unless, of course, it is beyond argument that the words complained of were not defamatory in any meaning.

31 In this proceeding there are 14 separate publications and 14 separate causes of action. There are in fact, seven publications complained of, and as I have stated, each has been published twice. The defendant does not seek to strike out any particular cause of action, instead, it seeks to have struck out particular imputations. Some of the complaints turn on the wording used, others because the imputation does not appear to have been carefully or properly drafted.

32 If the defendant takes a view that a particular imputation is not open, then the defendant can so plead, and if there is a justification defence, a defendant can plead to the imputations which it believes are made out in the ordinary and natural meaning of the words. The defendant has available to it the Polly Peck defence. It has not been put to me that the defendant could not plead to the statement of claim as it now stands or that it would be embarrassed or prejudiced to do so.

33 The summons seeks to strike out paragraph 27 but as I have stated Mr Wheelahan of counsel who appears for the defendant, did not press the attack in respect of the seventh article (being paragraph 27.) The attack on the other six articles was confined to certain imputations. Mr Ian Turley of counsel for the plaintiff conceded some imputations were not open on a reasonable reading of the words complained of.

34 At the outset, it is important to emphasise that the 14 causes of action are based on the natural and ordinary meaning of the words. The plaintiff has not relied upon the true innuendo and hence has not pleaded any extrinsic facts. In particular, he has not pleaded that the reasonable reader has read the previous articles and hence has the knowledge gleaned from them. Hence, it is necessary to consider each article separately. That is not to say that the reasonable reader reads the article in a vacuum, but he is not to be taken to have read any of the previous articles as the amended statement of claim presently stands. The reasonable reader is to be taken as intelligent and possessed of knowledge of events and circumstances of public notoriety, such as the fact that a Royal Commission was taking place concerning alleged police corruption.

35 Mr Wheelahan referred to two cases which he submitted supported a strict approach to the drafting of the imputations and more importantly that the plaintiff was strictly bound by them. He referred to the Western Australian decision of Taylor v. Jecks[8]a decision of the Full Court of the Supreme Court of Western Australia. He referred to what Anderson J said at p.316 of the report. He wrote the leading judgment.

36 I will not read out what His Honour has said except to note that he was critical of the too robust approach by the Acting Master from whom the appeal was brought as to the status of the pleaded innuendos. It is not for me to consider or criticise the practice adopted in the State of Western Australia and I do not propose to do so.

37 Mr Wheelahan also referred to the Full Court decision in South Australia of Chapman v. ABC[9], and in particular, at p.190. Lander J wrote the leading judgment in that decision and it is to what he said at p.190 that Mr Wheelahan drew attention. Again, it may be said that what was said was a justification for a strict approach to the pleading of imputations.

38 I note what His Honour has said there and I note the references to a variety of cases. One must be very careful in quoting any New South Wales decision in this area, for the very obvious reason that in New South Wales, the imputation is a cause of action. In those circumstances it is important that the imputation be pleaded with a degree of precision. Again, the practice in South Australia is not a matter for me, and I do not wish to make any comment on it. His Honour did refer to a number of New South Wales cases. What the practice is in other States is a matter for the Judges of other States and it is not for me to comment on their practice.

39 I am of the view that a strict approach is not appropriate at this stage. In my view, that is not the law in this State. The question is one for the jury. Where there is any reasonable doubt as to the true meaning of the words complained of, the issue must be left to the jury. I say that for the following reasons -

•

The cause of action is a single cause of action, namely that the words complained of defame the plaintiff - it is the defamatory sting of the article and not the defamatory imputations which constitute the cause of action.

•

The modern practice in a natural meaning case is to plead particulars of imputations, that is, they are particulars which fulfil the usual object, namely, to delineate the issues and give notice of the ambit of the claim to the defendant. They are different in one sense to the normal particulars in that the defendant must plead formally to the particulars.

•

The plaintiff is expected to present his case based on the particulars, but the jury is not strictly bound by them. That is, the cause of action does not succeed or fail depending on whether the imputation correctly states the defamatory imputation.

40 Barclay v. Cox,[10] despite suggestions to the contrary, is still good law in this State. I desire to quote a portion of that judgment to remind members of the profession that it is still good law in this State and does accord with the common law of defamation.

41 Barclay v. Cox[11] was a decision of the Full Court. At trial, the trial Judge left to the jury the meanings which were pleaded in the statement of claim and asked the question, "Has the plaintiff satisfied you that the words complained of in the article in the Border Morning Mail mean directly or indirectly by reasonable implication or inference to be drawn from the ordinary and natural use of the words?" and then followed each of the eight meanings set out in paragraph 5 of the statement of claim. The second question was in these terms, "If yes to any part of Question 1, are those meanings or any of them, defamatory of the plaintiff?"

42 The Full Court held that the trial Judge was in error in submitting the second question to the jury. Their Honours said that such a question would be appropriate in a case where the true innuendo is alleged because the innuendo raises a cause of action separate from that raised by the alleged libel itself.

43 But in the case of the false innuendo, the meanings assigned to the words by the plaintiff were false innuendos and gave rise to no separate cause of action so that the issue before the jury was only whether the words of the alleged libel in their ordinary and natural meaning were themselves defamatory of the plaintiff.

44 At p.665, Winneke CJ, Pape and Adam JJ said this -

"Since this was the only issue, we think that the learned judge should not have left Question 2 to the jury at all, for if the only question is whether the words in their ordinary and natural meaning were defamatory of the plaintiff (which was what was asked in Question 3) there was no point in asking them whether the meanings alleged in paragraph 5 of the statement of claim which were said to form part of the ordinary and natural meaning of the words in the libel, were defamatory of the plaintiff. In the result no harm was done, but the difficulty that might have been created can be illustrated by asking what the result would have been had the jury answered "Yes" to question 2, and question 3 "No." As Lord Hodson said in Lewis v. Daily Telegraph[12]:

'There is one cause of action based on the words in their natural and ordinary meaning and another based on the words in such meaning as may be alleged in a true innuendo, but not a third cause of action based on the false innuendo.'

Question 2 was based on the false innuendo and could have confused the jury (although we think in this case it did not) into thinking that contrary to the judge's charge, two separate causes of action were being submitted for their consideration. We see no reason why if he thought it of advantage to do so, the learned judge should not have left Question 1 to the jury ... But where the sole issue is whether the words in their natural and ordinary meaning are defamatory of the plaintiff and the pleading sets out meanings which the plaintiff alleges ordinary men would infer from the words used, we think that the better and more desirable course is that the jury should not be asked whether the words were understood to have those meanings. To ask such a question tends to concentrate the jury's attention unduly on the several meanings pleaded in the abstract and to distract them from their main task of reading the alleged libel as a whole and saying whether an ordinary fair minded reader would understand it as being defamatory of the plaintiff. Once the jury are told that, 'Often the sting is not so much in the words themselves as in what the ordinary man will infer from them, and that is regarded as part of their natural and ordinary meaning'[13] a jury should have no difficulty when they make their findings as to whether the words in their ordinary and natural meaning are defamatory of the plaintiff in taking into account the meanings suggested to them by the plaintiff."

(Emphasis added).

45 Having said that, I see nothing wrong with the jury being given a copy of imputations but with a clear instruction that the imputations do not bind them in their exact wording when they determine the meaning and whether they are defamatory. The latter are questions for them.

46 The reason for this approach is obvious. The English language is not a perfect vehicle for expressing thought and conveying information. Different readers will understand words in a different sense. The jury comprises people drawn from the public, from different backgrounds, levels of education, knowledge and intelligence. One may observe that a young person may read a passage in an article in a different way to a person who is much older and who has had a broader and greater experience of life. That is why it is so important that juries should not be told that they are bound strictly in any way by the imputations. The imputations are there to indicate how the case is being put and if the defendant pleads a Polly Peck defence, it may be appropriate to give the jury a note setting out the way the defendant says the words should be construed but again with a clear instruction that in the end the questions are for them, namely, what do the words mean, and in that meaning, are they defamatory of the plaintiff.

•

The particulars can be amended at any time up to verdict, subject to the usual rules of amendment.

•

By the time the question is left to the jury everyone in court has a very good understanding and appreciation of the words complained of and whether they contain a defamatory sting or stings.

•

The Defendant can plead its defence to the imputations as pleaded. If it is pleading justification it is a defence to the words complained of in any defamatory sense found by the jury. Of course, it is open to a defendant to plead to some imputations, but this is not a defence. It is relevant to the question of damages.

47 In my opinion, a robust approach to the present application is appropriate, especially as the defendant is not seeking to strike out a cause of action but to strike out certain imputations. If there is any doubt about whether the words are defamatory the matter must be left to the jury.

48 I now turn to the particular paragraphs which are the subject of attack.

49 Paragraph 5 pleads the imputations being the imputations said to be found in the first article. The first article was published in the newspaper and on its internet site on 24 October 2002. It is annexed to the writ as Annexure A. The attack is made upon paragraph 5(b), (c), (d) and (e).

50 The important question that I have to decide is whether the words are capable of a defamatory meaning. It is not common to strike out a statement of claim on the ground that the words complained of are incapable of a defamatory meaning. However, the Court must do so in plain cases, but of course, the attack here is not seeking to strike out any particular cause of action but particular imputations.

51 I wish to emphasise that the mere fact that on an application such as the present, the Court declines to strike out any imputation, does not mean that the trial Judge should leave the meaning to the jury. The trial Judge must decide the question at trial after full and detailed consideration of all relevant matters.

52 Mr Wheelahan has not complained the defendant cannot plead to the amended statement of claim nor has he submitted his client would be embarrassed to do so. The test is - "Were the words capable of being understood by reasonable readers as conveying the pleaded defamatory imputations of the plaintiff?"[14].

53 Returning to paragraph 5 the first one which was under attack is 5(b), which is in terms, "The plaintiff had killed a person." This raises interesting questions as to whether or not in the circumstances one can be defamed because of what was said in Harrison v. Mirror Newspapers[15]. However, Mr Wheelahan submits that it is a strained meaning and should be struck out especially as imputation 5(a) states that he "had been charged with murder".

54 I think there is a degree of substance in what he is putting to me, but in the end, I think it is a matter that arguably could go before a jury and accordingly, I would not strike that out. The article may convey that meaning.

55 Sub-paragraphs (c) and (d) seem to me to have to be run together and when looked in that way, I think again that they can remain and are arguably open as conveying defamatory meanings.

56 As for paragraph (e), there is a submission that it is pure conjecture whether or not the meeting that is referred to in the article means that the plaintiff was associating with known or suspected criminal identities. Mr Wheelahan, with some degree of force, submits that it is pure conjecture on reading the article as a whole, that the reasonable reader would so infer. Again, I think there is a degree of substance in what he says, but I am not prepared to strike out imputation 5(e) as being clearly without merit. In my view it may be open to a jury and again, it is a matter that in my view, can be best left to the trial Judge.

57 I now turn to the second article which is referred to in paragraph 8 of the amended statement of claim, and the attack there is in relation to paragraph 8(c). That reads, "Associated with persons of ill repute for the purpose of carrying out criminal activities." Again, one has to read the article as a whole and, in my view, it is arguable that the words convey that meaning. The words are capable of being understood by reasonable readers as conveying that imputation and I am not prepared to strike it out.

58 The imputations in respect of the third article are pleaded in paragraph 11 of the amended statement of claim. 11(b) repeats that the article conveys the imputation that the plaintiff had, "killed someone." Again, for the reasons which I have already stated, in my view, that is arguably open and I will not strike that imputation out.

59 Paragraph 11(d) is in these terms: "(d) Had committed murder but had been fortunate enough to beat the charge." In fact, they are the words that are used in the article. Whilst initially I thought that the whole article does not suggest he had been fortunate, in my view, the article could convey that to the reasonable reader.

60 Mr Wheelahan drew my attention to what was said by Mason J in the Harrison case about the reasonable reader speculating and giving effect to his prejudices. I note that observation and I would query whether or not that is a correct statement of the law.

61 What His Honour said was[16]:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff."

62 I query the second proposition. It may be open to infer that the reasonable reader just does precisely that. He does indulge in loose thinking and give effect to his prejudices and is more readily prepared to draw inferences than the average lawyer. One may query whether or not that does correctly state the law, but it is not for me at this stage to decide that. I think in the circumstances, a reasonable reader may read more into it than the average lawyer. The words that were used in the article are:

"... seen walking alongside Mr Kizon in James Street is former Detective David (`Docket') Waters, who earned his nickname as a young police officer after beating a 1982 murder charge that stemmed from a brawl at a Carlton pizza bar."

63 Paragraph 11(k) takes up again what has been said in relation to other articles, namely he was associating with persons of ill repute for the purpose of carrying out criminal activities. It is the latter part of that imputation which is criticised. Again, it is a matter for the reasonable reader, reading the article as a whole, whether he would draw the inference that because of Mr Waters' background and the fact that he is mixing with a number of criminals and other undesirables, he may have been setting out to carry out some criminal activities. That may be conveyed to the reasonable reader.

64 I understand Mr Wheelahan did not seek to press his attack upon paragraph 11(l) and in the circumstances I do not rule on it.

65 An attack was made upon paragraphs 11(f), (g) and (h) which appear to be out of order. These sub-paragraphs refer to what is said in the article about the plaintiff associating with persons who have a criminal history or were suspected of having a criminal history. Each imputation concludes with the words, "for the purpose of carrying out criminal activities." The attack made by Mr Wheelahan is that you could not infer from the articles that that is what was being said. He pointed out that it is clear on the face of the article that Mr Waters from time to time appeared to have contact with a Roger Rogerson, a Mick Gatto and John Kizon, but he said it does not follow that the reasonable reader would infer that. Again, one has to look at the whole article, and in my view, it is perhaps a line ball, but in my view it would be open to a jury to come to the view that the words did carry that defamatory meaning. Again, it is a matter that in my view can be best left to the trial judge at trial. I would not be prepared to say that beyond doubt it was not open.

66 I now turn to the fourth article which is Annexure D to the amended statement of claim. This is a slightly different article to the previous three, and appears to be an item which appears in what might be called a "gossip column", and refers to an incident that occurred at the Royal Commission. An attack is made on the imputations which are pleaded as 14(b), (c), (d) and (e). The first two, (b) and (c), relate to the allegation that conveys that he killed a man and he was fortunate to beat the charge. Again, for the reasons I have already stated, I would not strike those two out.

67 Paragraph 14(d) and (e) raises different questions. Again one has to concentrate on looking at the article with little background knowledge other than a knowledge that the Royal Commission is under way and is taking place in Western Australia, and is concerned with allegations of corruption and the like amongst police officers. One must confine one's self to looking at the article and posing the question whether, on the words as they there appear and which are complained of, they could be understood in a defamatory way; are they capable of being understood by the reasonable reason in the way that's pleaded in (d) and (e). (d) is in these terms:

"(d) associated with persons of ill repute for the purpose of carrying out criminal activities"

"(e) is linked to well known criminal Mark 'Chopper' Read".

68 I have carefully considered those two sub-paragraphs, and in my view they are not open on a fair reading of the article, and in my view should be struck out.

69 That brings me then to the fifth article. The fifth article is Annexure E and the imputations are pleaded in paragraph 17. Attacks are made upon (b), (c) and (d). Sub-paragraph (b) is repeating again the defamatory imputation that the plaintiff "killed a person". Mr Wheelahan says with some degree of force again that it is incapable arising on the face of that article. I think there is some substance in what he says, but in my view it is a matter that should be left to the trial judge to make a decision. As presently advised I think the words are capable of being understood by the reasonable reader as conveying that pleaded defamatory imputation.

70 Paragraph 17(c) is in these terms, that:

"(c) he committed murder, but had been fortunate enough to beat the charge."

Mr Wheelahan submits that those words do not appear in the article at all, and he is quite correct. Again I emphasise that I have got to consider this article as separate from the other articles, and in my view the reasonable reader would not understand the article as conveying that alleged defamatory imputation, and in my view 17(c) should be struck out.

71 Paragraph 17(d) is in these terms:

"(d) associated with persons of ill repute for a purpose of carrying out criminal activities."

The complaint made is the reference to persons plural. It would appear, that the association may have been with one person, but in my view that is a matter that I should not concern myself about. The real complaint is that it conveys the suggestion "for a purpose of carrying out criminal activities." Again, Mr Wheelahan with a degree of force says that it is not defamatory, but in my view, and again I think it is a line ball decision, but I am not satisfied that it is not open to leave that imputation in, and again in my view it is a matter for the trial judge after full consideration of the article during the trial.

72 The sixth article is Annexure F to the amended statement of claim, and the pleaded imputations are set out in paragraph 20. Initially Mr Wheelahan did not seek to attack paragraph 20(a), but sought to attack (b), (c), (d), (e), (f) and (g). Mr Turley did not seek to justify sub-paragraphs (b) and (c) and they will be struck out.

73 I come to 20(d) which is in these terms:

"Had illicitly obtained from Gavin Farrell the names of or other information concerning two West Coast Eagle footballers suspected of taking drugs, whose names were suppressed by the police Royal Commission."

In my view, the latter part of that pleaded imputation should be struck out, as it has the potential of misleading the jury and to that extent is embarrassing. It is clear on a reading of the article, and having the knowledge that the Royal Commission commenced in the year 2002, that the names of the footballers were suppressed at the Commission whereas the information that is complained of was conveyed a lot earlier. However that does not mean to say that the balance of the imputation is bad. In my view it does, on a fair reading of the total article, convey that imputation. I did raise the question of whether or not the obtaining of information by the plaintiff was illicit in the circumstances, but Mr Turley has persuaded me that the reasonable reader may so infer from the total article. Nevertheless I will strike it out and the plaintiff can re-plead it.

74 Paragraph 20(g) should be read with 20(d) and it reads:

"Had conceded in his evidence before the police Royal Commission that Gavin Farrell had provided him with the names of or other information concerning the two West Coast Eagles footballers, when knowing or believing that such names or information had been obtained illicitly by Gavin Farrell."

I may say that when I first considered paragraph 20(d), I thought that on a fair reading of the article, that is in fact what it was conveying, but Mr Turley has persuaded me that there is a difference, namely that in paragraph 20(d) the complaint is about the plaintiff illicitly obtaining the information from Mr Farrell, and in the second one, the concentration being on the plaintiff obtaining the information knowing that it had been obtained illicitly by Gavin Farrell. I do see the difference there. Mr Wheelahan submitted that the two imputations were much the same and there is only a slight difference in meaning, and therefore I should not permit both of them to go forward, however I think there is a difference and again, it is a matter ultimately for the trial judge. In my view the words are capable of being understood by the reasonable readers in the defamatory sense, of both 20(d) and 20(g). But Mr Wheelahan makes another point and that is the defamatory sting is said to be found in the plaintiff conceding in evidence a certain matter. When viewed in that way the sub-paragraph does not correctly plead the defamatory sting. Accordingly I will strike it out and the plaintiff may re-plead it in proper form if so advised.

75 That brings me to paragraph 20(e) which is in these terms:

"Had conceded in his evidence before the police Royal Commission that Gavin Farrell had provided him with the names of or other information concerning the two West Coast Eagles footballers."

That caused me in the course of argument to raise how that could be a defamatory statement of a person, because the real gravamen of the complaint by the plaintiff is that it is suggested that he may have been a prevaricating and unforthcoming witness. However, it is necessary to consider paragraph 20(f), and it states:

"(f) Had reluctantly conceded in his evidence before the police Royal Commission that Gavin Farrell had provided him with the names of or other information concerning the two West Coast Eagles footballers."

76 I think that sub-paragraph more correctly summarises the defamatory sting that is open on a fair reading of the article. In my opinion, paragraph 20(e) should be struck out. I do point out that I think an imputation could be drafted which made it very clear that it was being put, that the article conveyed that he was a prevaricating witness and a witness who might be prone to lie before things were pointed out to him. That observation in the course of submission, led Mr Wheelahan to then say that paragraph 20(a) should be struck out because it is really saying much the same thing. I agree with Mr Wheelahan that 20(a), when looked at with all the other imputations in paragraph 20, should be struck out because I do not really think it adds very much. I propose to leave 20(f) in at this stage, although it would be one that I would advise the plaintiff's lawyers to look at more closely; it may be that it should be amended to make it clear what is being conveyed. When all is said and done they are the words used by the journalist, "conceded reluctantly", but it is the defamatory sting that the court is concerned with, and what that phrase conveys to the reasonable reader in the context of the whole article. It may be that it conveys something more than reluctantly conceding. When one reads the article as a whole, it suggests that he may have been an untruthful or prevaricating witness who was not prepared to tell the truth until information was placed before the commission, which required him to tell the truth.

77 So I am prepared to strike out 20(a) 20(b) 20(c) 20(d) 20(e) and 20(g), and suggest that sub-paragraph 20(f) should be re-looked at by the plaintiff's advisors.

78 That brings me to the end of the attack upon the imputations. I will hear counsel on the form of the order and the question of costs.

79 The defendant has issued a summons seeking orders that certain paragraphs of the statement of claim be struck out, the paragraphs in fact being some of the defamatory imputations pleaded by the plaintiff.

80 The defendant has had some success and I am prepared to make orders that nine of the imputations be struck out, even though one of them is really just to enable it to be more correctly pleaded. The normal rule should apply unless there are circumstances why that rule should not apply, the normal rule being that the successful party should have its costs.

81 However, in determining that question, I must look at what the defendant has sought and the degree of success that it has had. It is noted that there were 26 imputations under attack and if one adds the original paragraph 27, you have some 30 imputations under attack, and the defendant has had success in nine. It may be said that the ninth is really a pyrrhic type victory because the imputation will be redrafted.

82 Mr Wheelahan is correct in saying that the defendant was obliged to come to court to clarify these matters, but I should not overlook the fact that in my view, the defendant was not in any way embarrassed by this statement of claim; it was open to it to plead to it without any difficulty at all, it could have pleaded that some of the imputations were not made out, and that is a standard type of defence. Then the defendant would have to make up its mind whether it would plead a blanket defence of truth or a Polly Peck type defence, or seek to file a defence seeking to partially justify the article, which of course is not a defence, but a matter relevant to the question of damages.

83 Although the general rule should normally be applied, in my view justice would be best served in this if I was to order that the costs be costs in the cause. I do so because I think both parties have had a measure of success, and even though Mr Wheelahan is going to say that it was necessary to bring the summons, in my view it was a summons that the defendant wished to bring. The defendant wished to have clarified certain matters, but in my view the defendant could have very easily proceeded with filing a defence and would not have in any way been embarrassed by the form of the pleading.

84 In addition, as Mr Turley points out, I am making other orders as to directions. I think that in the circumstances, justice would be best served if I order that the costs of the defendant's summons be costs in the cause, and I propose to so order.

[1] See Meckiff v. Simpson [1968] VicRp 7; (1968) V.R. 62 at p.70.

[2] See Barclay v. Cox [1968] VicRp 87; (1968) V.R. 664

[3] [1963] 1 W.L.R. at p.1370

[4] [1964] A.C. 234

[5] See Reader's Digest Services Pty Ltd v Mann [1982] HCA 4; (1982) 150 C.L.R. 500 at p.505-6 per Brennan J

[6] (1936) 1 All E.R. 1237-1240

[7] See Rubber Improvement Ltd v. Daily Telegraph Ltd [1964] A.C. 234 at p.277.

[8] (1994) 10 W.A.R. 309

[9] [2000] SASC 146; (2000) 77 S.A.S.R. 181

[10] supra

[11] supra

[12] At p.275.

[13] Per Lord Reid in Lewis v. Daily Telegraph supra at p.258

[14] See Jones v. Skelton supra at p.1371

[15] [1982] HCA 50; 149 C.L.R. 293

[16] at p.301