Plaintiff v Defendant

Plaintiff v Defendant - [2004] VSC 124 - VSC 2004 case summary — Zoe

1 Before the court is a summons by the defendant in the proceeding seeking orders that certain sub-paragraphs of the amended statement of claim be struck out pursuant to Rule 23.02 of the Rules of Court.

2 The plaintiff, David John Waters ("the plaintiff") operates an earthmoving contract business in this State and the State of Western Australia. In 1974 until 2002, he was a member of the Victoria Police Force, retiring as a detective sergeant.

3 The defendant, West Australian Newspapers Ltd is the publisher of a newspaper called "The West Australian" which has an extensive circulation throughout the State of Western Australia and a smaller circulation in this State. In addition, the defendant publishes from time to time editorial content on an internet site which is accessible in the State of Western Australia and this State.

4 During the year 2002, a Royal Commission was held in Western Australia into the alleged corruption and criminal conduct of the Western Australian Police Force. It appears that the Commission ran from July 2002 until August 2003. The plaintiff gave evidence at the Royal Commission. The hearing of the Royal Commission was the subject of a number of articles in the Western Australian and also on its internet site.

5 On 27 August 2003, the plaintiff instituted a proceeding in this court against the defendant seeking damages for defamation arising out of seven publications during the months of October and December 2002. In fact, he complained about seven articles but there are 14 causes of action, being seven publications in the Western Australian newspaper and seven like publications on the internet. I have been assured from the Bar table that the articles complained of appeared in the same form in the newspaper and also on the internet site.

6 Application was made by the defendant for an order under the Jurisdiction of Courts (Cross-vesting) Act 1987 to transfer the proceedings to the Supreme Court of Western Australia, but by order made 29 October 2003, Nettle J refused the application.

7 On 11 March 2004, the defendant issued a summons seeking that certain paragraphs of the amended statement of claim be struck out. Rule 23.02 provides:

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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 -

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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 -

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"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).

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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]:

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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:

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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.

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Judgment (40 paragraphs)

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