Defamation - Application to strike out - Principles applicable to Polly Peck defence - Scope of defendants' right to plead alternative meanings - Qualified privilege plea - No new principles - Turns on own facts

Surveillance Devices Act 1998, Pt 3

First Defendant : Mr W S Martin QC & Mr S R Edwards

Second Defendant : Mr W S Martin QC & Mr S R Edwards

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Gumina v Williams (NO 2) (1990) 3 WAR 351

Jackson & Ors v ACP Publishing Pty Ltd [2001] WASC 121

1 HASLUCK J: This is an application by the first and second defendants for leave to amend their statement of defence in terms of a minute of proposed further reamended defence of first and second defendants dated 6 June 2001. I will henceforth refer to this document as the June minute of proposed defence.

2 The plaintiff opposed the application upon the basis that in certain respects the June minute of proposed defence was embarrassing, and said further that in such circumstances leave to amend should not be allowed.

3 I begin by noting that the pleadings in this action have been the subject of a number of previous rulings by the Court. In reasons for judgment delivered 6 April 2001, Reynolds v Nationwide News Pty Ltd & Ors [2001] WASC 90, I summarised the circumstances giving rise to the plaintiff's claim and reviewed at some length the principles of law bearing upon the availability of a Polly Peck defence and the defence of qualified privilege in the context of political discussion.

4 I will not repeat what I said on that earlier occasion, save to delineate the nature of the issues raised by the present application.

5 The plaintiff is the secretary of the Construction Forestry Mining and Engineering Union. He claims that he was defamed by an article published in the Sunday Times newspaper by the first and second defendants under the heading "Bribe Offer". In essence, the article alleges that a bribe was offered to the third defendant by the plaintiff's deputy, Joe McDonald, at a secret meeting in King's Park.

6 The article asserts that the third defendant "has been unemployed since being sacked as a union organiser two years ago". This is said to have occurred because he was "daring to question Mr Reynolds' decisions".

7 In the course of reviewing the relevant legal principles, I noted in my earlier reasons for judgment that it was open to the first and second defendants in the circumstances of the present case to plead a Polly Peck defence. I observed, however, that such a defence must be narrowly confined to imputations and meanings similar to the imputations contended for by the plaintiff.

8 Against that background, I went on to hold that certain of the alternative meanings contended for by the defendants should be struck out. I held also that the plea of qualified privilege being advanced by the defendants in its form at that time was embarrassing and had to be struck out.

9 The first and second defendants were allowed leave to replead and the June minute of proposed defence now before me represents the fruits of that repleading. The plaintiff has now raised further objections and is therefore opposed to leave being granted to amend the defence in the manner proposed.

10 The plaintiff pleads in par 6.1 of his claim that the words complained of meant and were understood to mean in their ordinary and natural meaning that the plaintiff had, through his agent, offered to a candidate opposing him in union elections, a substantial bribe not to run against him.

11 The first and second defendants plead in par 7.1 of the June minute of proposed defence under the heading "Polly Peck" that the words complained of meant or were understood to mean in their ordinary and natural meaning that the plaintiff "condoned" the attempt by McDonald to bribe a candidate opposing him in union elections.

12 It was common ground at the hearing before me that McDonald is the plaintiff's secretary and is the person referred to in the article complained of as having allegedly attended the so-called secret meeting in King's Park.

13 Counsel for the plaintiff argued that the Polly Peck principle is designed to protect a defendant at trial against a finding in relation to a defamatory imputation which is not in the terms pleaded by the plaintiff, but which is, nevertheless, found to be contained within the words complained of and is substantially the same as the imputation contended for by the plaintiff.

14 He referred to a passage in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 in which Gaudron and Gummow JJ suggested that there will generally be no disadvantage in permitting reliance on a meaning which is simply a variant of the meaning pleaded. On the other hand, there may be disadvantage if a plaintiff is allowed to rely on a substantially different meaning.

15 Counsel for the plaintiff accepted that the defendant is at liberty to plead alternative imputations, but such a plea must be narrowly confined to imputations and meanings similar to the imputations contended for by the plaintiff.

16 Counsel for the plaintiff in the present case went on to argue that the defendants' plea in par 7.1 of the minute of proposed defence was objectionable on two grounds. First, a proposed imputation that the plaintiff had "condoned" the attempt by McDonald to bribe an opposing candidate was quite distinct from the imputation contended for by the plaintiff in par 6.1 of its claim that the plaintiff, through his agent, had played a part in the bribe being offered. The former plea pointed to acts akin to forgiveness or tacit approval subsequent to the events in King's Park, while as the former plea suggested that the plaintiff had played an active part in authorising and taking steps to ensure that a bribe was offered.

17 Counsel for the plaintiff submitted also that, in any event, the words complained of could not be said to give rise to an imputation that the plaintiff had condoned the bribe offer.

18 Counsel for the defendants submitted that, at this stage of the action, an alternative imputation put up by the defendants pursuant to the Polly Peck principle should only be struck out if it was manifestly untenable. The words complained of in the present case were open to the interpretation that the plaintiff's deputy, McDonald, was generally acting with the tacit approval of the plaintiff and thus, just as it could arguably be inferred, as the plaintiff alleges, that conduct undertaken by a loyal deputy was authorised by his superior, likewise, a reasonable reader would infer that the plaintiff condoned whatever steps were being taken by his deputy.

19 In my view, the imputation pleaded in par 7.1 in the minute of proposed defence is sufficiently close to the imputations relied upon by the plaintiff to create an arguable line of defence and should not be struck out. When the article is viewed as a whole, it could arguably be said to leave a reasonable reader with the impression that the plaintiff's deputy was involved in a range of dubious activities which were approved of or condoned by the plaintiff. It follows from this view of the matter that the imputation pleaded in par 7.1 of the proposed defence can be said to be inherent in the words complained of and is sufficiently related to the case being advanced by the plaintiff.

20 The defendants seek to plead in par 7.2 of the minute of proposed defence an imputation to the effect that the plaintiff ordered the termination of the relationship between the CFMEU and McParland for improper reasons, namely, that McParland had criticised the plaintiff's leadership of the union.

21 This imputation is objected to on the grounds that use of the word "relationship" is imprecise and therefore embarrassing. In any event, it is a separate and distinct charge, in that, the "sting" of the publication is the sacking or axing of McParland from the position of union organiser.

22 Counsel for the plaintiff submits that the words complained of in the article refer specifically to a sacking or termination of an existing employment relationship, but the plea being put up by the defendant is of a more general and different kind. The proposed imputation is not within the same general sense or sting as the imputation relied upon by the plaintiff in par 6.5 of the statement of claim, where it is pleaded that "the plaintiff caused the summary dismissal of the third defendant as an organiser for the CFMEU out of personal spite and ill will".

23 I have to say that in regard to this issue, I am persuaded by the submissions made by counsel for the plaintiff. I consider that the imputation in par 7.2 of the minute of proposed defence should be struck out. An allegation that a person has been sacked or axed suggests that the employer has taken immediate and rather draconian action. This is not the same as the milder and less specific assertion that a relationship between the parties has been terminated. The former statement suggests that the employer as the dominant party is exercising the powers available to him to suit himself. The latter points to a mood of civility and a lesser degree of inequality between the parties.

24 The proposed plea of qualified privilege appears at par 9 of the minute of proposed defence. It is pleaded that the words complained of were published on an occasion of qualified privilege arising from the fact that the publication was made to the public on a government or political matter. Various facts and matters are then referred to, including the assertion that the second defendant interviewed McParland. It is said also that it was not practicable for the first and second defendants to seek a response from the plaintiff because they were not entitled under Pt 3 of the Surveillance Devices Act 1998 to publish the substance of the private conversation between McParland and McDonald in King's Park.

25 Counsel for the plaintiff submits that a plea in this form is embarrassing in that there is no indication as to the date of the interview with McParland. I consider that this objection can be met by a request for further and better particulars and am not prepared to strike out the proposed pleading on that ground.

26 Counsel for the plaintiff submits further that there is no basis asserted as to why the Surveillance Devices Act prohibited or in any way affected the ability of the defendants to seek a response from the plaintiff.

27 I am not persuaded that this part of the minute of proposed defence, that is to say, par 9(c), should be struck out as embarrassing. In my view, the plea is comprehensible and amounts to an assertion by the defendants that it was not realistically open to them to confront the plaintiff with the fact that the so-called secret meeting in King's Park had been recovered by a recording device.

28 It will be a matter for debate at the trial of the action as to what weight should be given to such a plea if evidence is adduced directed to that issue. However, I am not prepared to strike out the plea.

29 I note in passing that objection was taken to par 11 of the minute of proposed defence which contains an assertion that the plaintiff's reputation has not been damaged by the publication of the words complained of. Counsel for the defendants conceded, at the hearing before me, that this was surplusage and would not be pressed.

30 In summary, then, I am persuaded that pars 7.2 and 11 of the minute of proposed defence should be struck out. I will hear from the parties as to what orders are required in order to carry this ruling into effect. I will allow the first and second defendants to replead par 7.2 if a request to that effect is made, in which event it may be that the appropriate order is for the first and second defendants to be allowed liberty to apply for leave to amend within 14 days. Alternatively, if the defendants do not wish to replead, then I will grant leave to amend in terms of the minute of proposed defence, save for the deletion of pars 7.2 and 11. This would be on the basis of the defendants filing and serving a clean copy of the amended statement of defence within a prescribed time.