Roe v Nationwide News Pty Limited & Ors [2011] ACTSC 156

2. Section 425(1) (a) of the Court Procedures Rules 2006 provides:

(1) The court may, at any stage of a proceeding, order that a pleading or part of a pleading be struck out if the pleading -

• (a) discloses no reasonable cause of action or defence appropriate to the nature of the pleading;

3. The plaintiff has not yet filed an Amended Statement of Claim, however a draft copy of a proposed Amended Statement of Claim was provided to me, and counsel for the defendants advised that there would be no objection to the plaintiff filing the Amended Statement of Claim in due course. On that basis I was invited to deal with the application by reference to the draft Amended Statement of Claim rather than by reference to the original Statement of Claim.

4. In the Amended Statement of Claim, the plaintiff claims that the first defendant is the publisher of The Australian newspaper which is published in every State and Territory of the Commonwealth of Australia including the Australian Capital Territory. The plaintiff further claims that the second defendant is the proprietor and publisher of the website "www.theaustralian.com.au" which is published in each State and Territory of the Commonwealth of Australia including the Australian Capital Territory.

5. Relevantly for present purposes, the Amended Statement of Claim pleads the plaintiff's cause of action against the defendants in the following terms:

1. On or about 6 February 2010, the First Defendant published of and concerning the plaintiff an article in The Australian written by the Third Defendant Pia Akerman entitled "Indigenous Leader Sacked", which is the first matter annexed hereto ("the matter complained of").
2. On or about 6 February 2010, the second defendant published of and concerning the plaintiff the matter complained of written by the Third Defendant Pia Akerman, on the website www.theaustralian.com.au ("the second matter annexed hereto").
3. In its natural and ordinary meaning the matter complained of was defamatory of the plaintiff.

(a) The plaintiff misused his corporate credit card by incurring a credit card debt of nearly $10,000 in less than two weeks.

(b) The plaintiff was dismissed as chief executive of the Fourth Defendant because he used his corporate credit card for personal expenditure not permitted by his employer, the Aboriginal and Torres Strait Islander Healing Foundation.

(c) The plaintiff's poor performance as Chief Executive of the Fourth Defendant was such that he was dismissed after less than a month in the best interest of the Fourth Defendant and its constituents.

(d) The plaintiff had such a poor attitude that he was dismissed after less than a month as chief executive of the Fourth Defendant.

(e) The plaintiff spoke so unprofessionally to other staff that he was dismissed after less than a month as chief executive of the Fourth Defendant.

(f) The plaintiff performed so unprofessionally as chief executive of the Fourth Defendant that he was dismissed after less than a month.

8. The article alleged by the plaintiff to have been published by the first defendant on 6 February 2010 is annexed to these reasons as Annexure A. The material allegedly published by the second defendant on its website on 6 February 2010 is Annexure B to these reasons.

9. Turning to the first order sought by the defendants, it is submitted that par 6 of the Amended Statement of Claim discloses no cause of action as the plaintiff has not pleaded publication of the material complained of to a third party, and in particular has not named at least one person to whom the material was published.

10. In support of this contention, I was referred to the decision of Harper J in Noor Mohamed v State of Victoria [2007] VSC 538 (Noor Mohamed). The facts in that case were that the plaintiff, a man of good character, was mistakenly recorded on databases maintained by federal, state and territory police forces as having a series of convictions for offences involving violence and as suspected of other serious offences including rape. The plaintiff applied for a taxi licence in Western Australia but was informed by letter from the appropriate body that he may not be able to satisfy the requirements for such a licence as he had "recently been convicted of criminal offences".

11. The relevant, mistaken details had been placed on the database by the Victorian Police.

12. The plaintiff commenced proceedings in the Supreme Court of Victoria claiming damages, inter alia, for defamation. The plaintiff's pleadings did not "connect the alleged publication by the defendant to the alleged receipt of the publication by the alleged Western Australian recipients". Consequently, there was, in the pleadings, no allegation of bilateral publication (as to which, see Dow Jones and Company Inc v Gutnick (2002) 210 CLR 575 at p. 600).

13. In par 4 of the plaintiff's statement of claim in Noor Mohamed, the plaintiff alleged that the impugned certificate had been published on the database with the intention that it would be republished to prospective employers of the plaintiff in the taxi industry as a natural and probable consequence of the original publication. The paragraph went on to plead that "full particulars of the names of the persons to whom the certificate was republished shall be supplied after the defendant has made full and proper discovery". With respect to these pleadings Harper J said (at [20]):

1. ... It is not sufficient for the plaintiff simply to state that full particulars of the persons to whom the certificate was republished shall be supplied after full and proper discovery. Those matters are not properly the subject merely of particulars, but of the substantive plea and accordingly should appear when the Statement of Claim is properly drawn and should appear not by way merely of particulars. Moreover, as Dr Collins also submitted, it is fishing to refer, as the plaintiff has done in the Amended Statement of Claim, to matters which are not presently known to the plaintiff but which must form part of the substantive plea itself.
2. If the plaintiff is in a position where material facts are unknown and accordingly the plaintiff is not in a position to adequately plead a possible cause of action, then the appropriate course is for the plaintiff to seek discovery from a non-party pursuant to the provisions of the Rules and in particular Rule 32.07 of the Rules of the Supreme Court. That Rule provides for discovery from a non-party; and that is the appropriate Rule to which the plaintiff should have recourse if a substantive element of the cause of action is unknown to him, and if he is thereby unable to say whether he is able to make out a completed cause of action in a statement of claim.
3. The position then, it seems to me, is that the cause of action in defamation as presently pleaded is one which suffers from a terminal problem. A material element of the cause of action is not pleaded, and on the materials provided by the plaintiff himself cannot be pleaded at present, because the plaintiff does not have the relevant information. Until that information is obtained the plaintiff will not be in a position to assert that he has a complete cause of action in defamation and will therefore not be able to plead all the elements which made up such a cause of action. In those circumstances the cause of action in defamation should, as the defendant submits, be struck out.

14. The importance of giving particulars in the Statement of Claim of those to whom the publication is alleged to have been made was referred to by Hunt J in Lazarus v Deutsche Lufthansa AG (1985) 1 NSWLR 188 (Lazarus) (at p. 192):

The identity of those persons (either general or precise) is of vital importance to a defendant in almost every defamation action, whether the publication was oral or in writing. In both cases, the defence of qualified privilege will depend upon the defendant being able to establish that those persons to whom he is alleged to have published the matter complained of had a legitimate interest in the matter so published. The difference between substantial and trivial damages...and the application of the defence of unlikelihood of harm afforded by the Defamation Act 1974...will depend in both cases upon the identity (general or precise) of those to whom the matter complained of was published (at p.192).

15. However, much may depend on the mode of publication. His Honour went on to say (at p. 192):

...the newspaper defendant in a written defamation case could hardly require the plaintiff to identify the readers of its newspaper. In this category, I include radio and television station defendants and their listeners and viewers respectively. This is not, as it is sometimes suggested, because the identity of the readers, listeners or viewers is a matter already within the defendant's knowledge; it is because the defendant does not have to meet any case based upon the precise identity of its readers, nor does it need to know that precise identity for any purpose in relation to its own defence (at p.192).

16. The material complained of in Noor Mohamed was located on a police database and was not, as I understand it, published to the general public. Certainly, there is no reference to such an allegation in the published report. A case much closer to the present than Noor Mohamed is Bristile Ltd v The Buddhist Society of Western Australia Inc & Anon [1999] WASC 259; (2000) Aust Torts Reports 81-548 (Bristile Ltd). In that case the plaintiff took objection to material published about it by the defendant on its website. The plaintiff claimed defamation for damages. In its Statement of Claim the plaintiff alleged publication of the material "to the World Wide Web". The defendant sought to strike out those pleadings on the grounds that they did not allege publication to any person and as such disclosed no reasonable cause of action. In rejecting that submission Steytler J said (at [42]):

1. Senior counsel for (the defendant) contended that while, in cases of publication to the world at large in newspapers or books, the court will accept that publication in such cases is to be inferred...the same is not true in respect of publication to the World Wide Web and there is nothing, in what has been pleaded, to allege that anyone accessed the web site.
2. I am not persuaded that there is any real merit in this objection. As "Gatley on Libel and Slander", 9th ed, points out (par 6.9), it is not necessary in every case for the plaintiff to prove directly that the words complained of were brought to the actual attention of some third party. It is enough if facts be proved from which it can be inferred that the words were brought to the attention of some third person. The learned authors of "Gatley" suggest that this is particularly obviously so where the matter is contained in a book or distributed in the news media or on the Internet. Moreover those authors suggest (par 32.6) that if it is a matter of reasonable inference that libellous matter was actually seen and read by some third party, a prima facie case of publication will be established (at pp 63,614 to 63,615).

17. The present case is akin to Bristile Ltd in that the publication alleged is a publication in writing to the world at large. It was acknowledged by Hunt J in Lazarus, as quoted at par 14 above, that in the case of alleged defamation by publication in writing it is not always necessary to identify the precise person or persons to whom the material is published.

18. The precedents found in Milmo P & Rogers WVH (ed), Gatley on Libel and Slander (11th ed, Thomson Reuters (Legal) Limited, 2008) suggests that particulars of claim in a case alleging libel on the internet should contain an allegation similar to the following (at p. 1332):

The said website is entitled [X] and its address is http://www\[website address]. At all material times the said website has been open to general access by any user of the World Wide Web. In the circumstances, it is to be inferred from the open access of the site and [add other circumstances as applicable] that the words complained of in paragraph [Y] were published to a substantial but unquantifiable number of readers (at p.1332).

19. In my opinion par 6 of the plaintiff's Statement of Claim is technically deficient in that it does not plead those facts necessary to establish publication. In particular, it does not plead that publication is to be inferred, and the facts from which it is to be inferred. The plaintiff, as I understand it, has not yet filed the Amended Statement of Claim. Before doing so, he should amend par 6 to deal with this deficiency. If it is necessary for me to grant leave for the plaintiff to make this amendment, I grant that leave.

20. I will now turn to the defendants' objections to the imputations pleaded in par 7 of the draft Amended Statement of Claim. Before considering each of the objections to the imputations pleaded I will refer briefly to the principles governing the defendants' application. A number of the objections raised by the defendants to the individual imputations as pleaded by the plaintiff allege that the imputation is not reasonably capable of being conveyed. In Waterhouse v The Age Company Limited and Ors [2011] NSWSC 159, Nicholas J said (at [13]):

1. The principles applicable to the correct approach of the court on the question of capacity are too well known to justify extensive repetition. In summary, a court is required to have regard to a range of factors. It must keep in mind that a reasonable person can and does read between the lines in light of his general knowledge and experience of worldly affairs, and will draw implications much more freely than a lawyer, especially when they are derogatory. He is prone to engage in a certain amount of loose thinking. Each alleged imputation is to be considered in the context of the entire article. One must try to envisage people between those who are unusually suspicious and those who are unusually naive and see what is the most damaging meaning they would put on the words in question. The question of meaning turns on what the publication, taken as a whole, conveys to the reasonable reader, and this must always be a matter of impression. Ultimately, the question is what a jury could properly make of it.

1. The exercise of discretion in deciding whether or not an imputation should be struck out is to be undertaken with great caution. In Favell (par 6) it was said that if reasonable minds may possibly differ about whether or not the matter complained of is capable of carrying a defamatory meaning, that would be "...a strong, perhaps an insuperable, reason for not exercising the discretion to strike out". Kirby J said (par 21) "(Court's) should remember that the tribunal established by law (whether a jury or a judge) to decide claims in defamation will normally have a large capacity of its own to deal with far-fetched and remote imputations in a common sense way.

22. I also, with respect, adopt the comments of Miles CJ in National Road and Motorists' Association Limited v Nine Network Australia Pty Ltd [2002] ACTSC 9 (NRMA) (at [22]):

1. One advantage of the trial by judge alone is or should be the elimination of pre-trial applications to strike out parts of a statement of claim on the ground that the matter complained of is incapable of identifying the plaintiff or incapable of giving rise to one of the several defamatory meanings or imputations which are usually pleaded in a statement of claim for defamation. Such applications are sometimes made with the intention of saving time and costs at the hearing, and, if successful, may well have that effect on occasions. On the other hand, an informed judgment about whether or not a pleaded imputation fairly arises on the matter complained of can usually be made by the trial judge when the plaintiff's counsel opens the case. If not, it should await the presentation of evidence in the plaintiff's case.

23. With respect to par 7(a) the defendants submit that the imputation pleaded is not reasonably capable of being conveyed. I disagree. The juxtaposition in the article of a reference to speculation about the plaintiff's dismissal being related to use of a corporate credit card and the confirmation that the card had been nearing its $10,000 limit after less than two weeks of use is capable of raising in the mind of an ordinary, reasonable reader the imputation that the plaintiff had misused his credit card by incurring a debt of nearly $10,000 in less than two weeks.

24. With respect to imputation 7(b) the defendants submit that the imputation is not reasonably capable of being conveyed, that it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff, and it does not differ in substance from the imputation set out in sub par 7(a). Dealing with the last submission first, adopting the suggestion of Miles CJ in NRMA (above), this is a matter which is best left to the trial judge to determine. I am satisfied that the imputation as pleaded in par 7(b) is reasonably capable of being conveyed. I also reject the defendants' submission that it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff. The imputation as pleaded clearly alleges an act or acts by the plaintiff, being misuse of his corporate credit card for personal expenditure.

25. The defendants object to the imputation pleaded in par 7(c) on the grounds that it is not reasonably capable of being conveyed, it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff, and that it does not differ in substance from the imputation set out in pars 7(d), (e) and (f). Whilst the material complained of does not use the phrase "poor performance", when read as a whole it is capable of conveying the imputation that the plaintiff's performance as Chief Executive of the Fourth Defendant was considered to be poor, leading to his dismissal after less than a month. If the imputation as pleaded is somewhat vague in its terms, that is a deficiency which flows from the matter complained of and not from the pleader: See John Fairfax and Sons Limited v Foord [1988] 12 NSWLR 706. The question of whether there is any material difference between this imputation, and imputations 7(d), (e) and (f) is a matter which is best left to be dealt with by the trial judge.

26. The defendants object to the imputation pleaded in par 7(d) on the grounds that it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff, and that it does not differ in substance from the imputations set out in paragraphs 7(c), (e) and (f). Dealing with the second objection, that is a matter which is best left to be dealt with by the trial judge. Again, the fact that the imputation as pleaded is somewhat vague is a reflection of the matter complained of.

27. The defendants object to the imputation set out in par 7(e) on the grounds that it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff and it does not differ in substance from the imputation set out in pars 7(c), (d) and (f). Consistent with the approach that I have taken above, I consider that the question of whether the imputation differs in substance from other imputations pleaded by the plaintiff is a matter which is best dealt with at trial. I do not accept the submission that the imputation is bad in form. In my view, the material complained of is capable of conveying to an ordinary, reasonable reader that the plaintiff acted unprofessionally in the way in which he spoke to staff, such that it was necessary for him to be dismissed.

28. Finally, the defendants object to the imputation alleged in par 7(f) on the grounds that it is bad in form in that it is vague and ambiguous and does not allege a clear act or condition of the plaintiff, and that it does not differ in substance from the imputation set out in pars 7(c), (d) and (e). The question of whether the imputations differ in substance from each other is a matter best left to the trial. I do not accept the submission that the imputation as pleaded is bad in form. In my opinion, the material complained of is capable of conveying to the ordinary, reasonable reader the imputation that the plaintiff had behaved unprofessionally in his employment with the fourth defendant, leading to his dismissal.

29. The defendants also seek an order that the words "and damages for loss of earnings" in par 21 of the Statement of Claim be struck out, or alternatively that the plaintiff provide particulars of any claim for his loss of earnings. I note that par 21 in the Statement of Claim is reproduced in exactly the same form in par 23 of the draft Amended Statement of Claim. In this par the plaintiff claims "damages for defamation against all defendants, including aggravated damages and damages for loss of earnings". It is clear from the submissions filed on behalf of the plaintiff, and the plaintiff's solicitors' letter to the defendants solicitors dated 25 June 2011, that the plaintiff is not claiming special damages against the first, second and third defendants. The plaintiff intends to claim damages for loss of earnings against the remaining defendants. As that has now been made clear by way of particulars and also by statements made on behalf of the plaintiff in open court, there is no utility in making the orders sought by the defendants.

(1) The plaintiff is granted leave to file an Amended Statement of Claim;

(2) The Application dated 2 June 2011 is dismissed.

I certify that the preceding thirty (30) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Burns.

Solicitor for the plaintiff: Colquhoun Murphy Barristers & Solicitors

Counsel for the first, second and third defendants: Ms L Brown

Solicitor for the first, second and third defendants: Blake Dawson Lawyers

First Matter: Indigenous leader sacked

Second Matter: Indigenous leader sacked. The Australian, 6 February 2010