Baume v The Commonwealth [1906] HCA 92; (1906) 4 CLR 97

Emerson v Walker [1999] WASC 265

Grljusich v Grljusich, unreported; SCt of WA; Library No 930253; 6 May 1993

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Slatyer v The Daily Telegraph Newspaper Company Ltd [1908] HCA 22; (1908) 6 CLR 1

1 HASLUCK J: The plaintiff has applied for leave to further amend the statement of claim in this matter in the terms of a minute dated 4 May 2001. I will henceforth refer to this as the May minute of proposed claim.

2 The application for leave to amend is opposed on the grounds of delay and upon the basis of certain alleged deficiencies concerning the manner in which the imputations relied upon by the plaintiff have been formulated.

3 It will be useful to begin by looking briefly at the history of the legal proceedings.

4 The plaintiff issued a writ of summons in mid-1996, complaining of an article published in the newspaper the Sunday Times on 24 May 1996 under the heading "Widow bugs WA sleuth over death mystery".

5 The text of the article is set out in par 3 of the minute of proposed claim. It refers to the death of a man named Geoffrey Higgins, who allegedly shot himself in the presence of the plaintiff, Ms Ronci. It seems that the plaintiff was the deceased's second wife and a question then arose as to her entitlement to the proceeds of a life insurance policy. It was against this background that she engaged a private investigator. The latter's dealings with the plaintiff later led to a charge of extortion being brought against the investigator.

6 As appears from par 4 of the May minute of proposed claim, the plaintiff placed reliance upon that part of the article in which it was said that the police questioned the plaintiff for more than five hours after her husband's death, but concluded he had committed suicide. The article said further that the deceased's family in Melbourne wanted the inquiry into his sudden death to be reopened. The deceased's mother was quoted as saying: "We are not happy with how things were handled. Geoffrey wasn't the type to take his own life. I spoke to him that day and he was fine."

7 The plaintiff pleaded in the first version of her statement of claim that the words complained of in their natural and ordinary meaning contained various imputations, namely, that Tina Ronci killed Geoffrey Higgins (par 7.1); Tina Ronci is suspected on reasonable grounds of murdering Geoffrey Higgins (par 7.2); the circumstances surrounding the death of Geoffrey Higgins gave rise to a suspicion held on reasonable grounds that Tina Ronci unlawfully brought about the death of Geoffrey Higgins (par 7.3).

8 At that time, the defendants were Nationwide News Pty Ltd as the first defendant and Joan Higgins as the second defendant. These defendants applied to strike out certain portions of the statement of claim, including the imputations just mentioned, on the grounds that the pleading did not disclose a reasonable cause of action.

9 The application to strike out came before Steytler J who reviewed the legal principles relevant to the disposition of such an application. His Honour noted that a defamatory statement is one that is to a person's discredit or which tends to lower that person in the estimation of others. The test is whether, under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense. The ordinary and natural meaning many include any implication or inference which a reasonable reader would draw from the words.

10 His Honour noted also that an imputation will be struck out at the interlocutory stage if the imputation contended for is so obviously untenable that it cannot possibly succeed or is manifestly groundless: Taylor & Ors v Jecks (1993) 10 WAR 309 at 319; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446.

11 Against this background, his Honour was persuaded that the imputation that the plaintiff killed Geoffrey Higgins (par 7.1) was manifestly incapable of arising from the words complained of and should be struck out. He was not prepared to strike out the imputation in par 7.2, but was prepared to strike out the imputation in par 7.3, with leave to replead.

12 It is apparent from his reasoning that, although it was untenable to contend that the words imputed actual guilt of the crime of murder to the plaintiff, the imputation was at least arguably open that there were reasonable grounds for the suspicion that the plaintiff unlawfully brought about the deceased's death.

13 The claim was then repleaded to include imputations that "Tina Ronci is suspected on reasonable grounds of killing Geoffrey Higgins" (par 6.1) and/or that "Tina Ronci is suspected on reasonable grounds of having lied in stating that Geoffrey Higgins shot himself in the head" (par 6.2). Various interlocutory steps were then attended to, including the removal from the action of the second defendant, Mrs Higgins. An order was obtained on 20 May 1998 for the action to be tried by a Judge with a jury.

14 On 24 November 1998, an order was made dismissing an application for this action to be consolidated with another claim in defamation being advanced by the plaintiff. It seems that, thereafter, for the next 12 months or so, the action remained in abeyance.

15 At the hearing before me, I was provided with the affidavit of the plaintiff's solicitor Anthony Michael Prime, sworn 15 August 2001, which described events from the beginning of the year 2000 to the present day. This affidavit sought to explain and justify the delay in making the present application to amend by referring to the process of obtaining advice from counsel and debating various issues with the solicitors for the defendant. The plaintiff's solicitors foreshadowed that the action would proceed subject to the claim being amended.

16 The minute of proposed claim was filed on 4 May 2001. The proposed amendments included pleading the newspaper article in its entirety and setting out various facts and matters directed to the plaintiff's claim for damages.

17 Paragraph 4 of the May minute of proposed claim now sets out certain "particular" words contained within the article, being the words I mentioned earlier concerning the questioning of the plaintiff and the doubts expressed by her family.

18 The new par 5 seeks to delete the repleaded imputations with a view to asserting that the article in its natural and ordinary meaning meant and was understood to mean that:

"5.1 The plaintiff had so conducted herself as to give rise to a suspicion, on reasonable grounds, that she had killed her husband.

5.2 In the alternative to paragraph 5.1 above, the plaintiff had so conducted herself as to give rise to a suspicion, on reasonable grounds, of causing a third party to kill her husband.

5.3 In the alternative to paragraph 5.1 above, the plaintiff is suspected on reasonable grounds of killing Geoffrey Higgins."

19 I digress briefly to note that counsel for the plaintiff was granted leave to introduce the proposed 5.3 at the hearing before me and, thus, the paragraph in question appears as an annotation to the May minute of proposed claim.

20 I turn firstly to the defendant's submission that the plaintiff has not provided a sufficient explanation for the delay in making the application. Reference was made to the fact that the action has been essentially inactive since November 1998. To allow an amendment in these circumstances, counsel for the defendant argued, is likely to inconvenience and prejudice the defendant.

21 It emerged during the course of argument that the defendant was not able to identify any specific prejudice referable to a need to locate or take statements from witnesses, or otherwise to complete inquiries concerning the matters in issue. I must also take account of the fact that it was open to the defendant to strike out the claim for want of prosecution, although, admittedly, applications of this kind are often difficult to prosecute successfully.

22 Counsel for the plaintiff argued that the court has power to entertain an application by a party to amend its pleading at any stage of the proceedings. The ultimate aim of the court must be the attainment of justice and no principle of case management should be allowed to shut out a party from litigating an issue which is fairly arguable: The State of Queensland & Anor v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 at 154.

23 I am not persuaded in the circumstances of this case that the delay referred to by the defendant should be allowed to stand in the way of the application for leave to amend. There has obviously been a significant period of delay on the plaintiff's side. However, part of the delay is referable to the need for the plaintiff to formulate its claim with care, having regard to the previous application to strike out.

24 I must now turn to the question of whether the minute of proposed claim fails to disclose a reasonable cause of action or is embarrassing. The defendant's objections were confined to par 4 of the minute of proposed claim in which an emphasis is placed upon certain "particular" words in the article and to the three imputations set out in par 5 of the minute of proposed claim.

25 I consider that par 4 should be struck out on the grounds that it is embarrassing. The paragraph in question seems to be simply a leftover from the original version of the statement of claim. Thus, now that the contents of the article in its entirety have been set out in the minute of proposed claim, par 4 becomes surplusage. It is not clear exactly what reliance is being placed upon the particular words and it is therefore embarrassing.

26 Let me now turn to the objections concerning the imputations pleaded by the plaintiff in pars 5.1, 5.2 and 5.3 of the minute of proposed claim. I will follow the approach reflected in the judgment of Steytler J mentioned earlier, from which it follows that the question before me is whether the imputations contended for are obviously untenable or manifestly groundless. I take account of the observations made previously by Steytler J that, when one looks at the article in question, the imputation must at least arguably be open that there are reasonable grounds for the suspicion that the plaintiff unlawfully brought about the deceased's death.

27 Different interpretations can be placed upon the statements that a person has been charged with or is suspected of a crime. Such a statement might or might not carry the additional imputation that reasonable grounds exist for suspecting that the person committed the offence, or the even more damaging imputation that the charge or allegation of complicity is well-founded.

28 A statement that a person is guilty of crime conveys the imputation that he is guilty and the same is generally true if the author of the statement says that there is a rumour that the person is guilty. Such imputations must be justified by proof of guilt, not by proof that the statement was made or that the rumour exists. But the same does not apply to statements that a person is under suspicion or investigation, for this must surely offend against the ideas of justice which reasonable persons are supposed to entertain: Gatley on Libel and Slander (9th ed) par 3.25.

29 In Lewis v Daily Telegraph [1964] AC 234, statements were published to the effect that the City of London Fraud Squad was inquiring into the affairs of a certain company and its chairman. It was held by the House of Lords that the words complained of were not capable of meaning that the plaintiffs were guilty of fraud, for a person would not, unless he were unduly suspicious or unfair in his approach, draw that conclusion.

30 Lord Hodson noted at page 274 that the defendants, having admitted that the words were defamatory in their ordinary meaning, contended that the ordinary meaning did not go so far as to include actual guilt or fraud. They sought to justify by proving that an inquiry was in fact held, not by proving actual suspicion of fraud.

31 In Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, the High Court held that a communication which does no more than state that a person has been arrested and charged with a criminal offence is not capable of bearing the imputation that he or she is guilty or probably guilty of that offence.

32 These cases underline the distinction between a statement imputing guilt of criminal conduct and a statement of mere suspicion. A plea which sets up an imputation of mere suspicion, without more, is not capable of carrying a defamatory meaning: Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 at 43; Gumina v Williams (No 2) (1990) 3 WAR 351 at 371.

33 In the context of statements of this kind, one must always subject the words actually used to close scrutiny. A statement that an inquiry is on foot or that there are suspicious circumstances may, by the use of additional words or description, go further and may positively convey the impression that there are good grounds for the inquiry or that there is something to suspect. In such a case, the words may convey a defamatory meaning.

34 Accordingly, having regard to the decided cases, in circumstances where it may strike legal advisers to a prospective plaintiff that the words complained of are not capable of conveying an imputation of guilt, the plea may take the form of an imputation, as in the present case, that the plaintiff has so conducted himself or herself as to give rise to a suspicion on reasonable grounds that a particular offence has been committed.

35 It was against this background that at the hearing before me discussion focussed upon two recently decided cases which have a bearing upon issues of this kind.

36 In Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 8 December 1997, the Full Court in this State was concerned with a letter written by the appellant to the police fraud squad, a copy of which was subsequently distributed by him at a meeting of the branch council of his trade union. The letter purported to be an official complaint about the conduct of the union secretary and referred to an occasion three years earlier when it appeared to the branch council that there was "a prima facie case of criminal misconduct by our branch secretary".

37 The author of the letter went on to say that the branch secretary was "charged with offences, which for one reason or another, were subsequently not proceeded with".

38 The letter was said to contain an imputation that the union secretary was guilty of criminal misconduct in the conduct of his office. The words were also said to convey a second imputation that the council was, at some time in the past, of the opinion that the respondent had a case to answer for criminal misconduct.

39 The Full Court noted that at the heart of the case was the distinction between a statement of mere suspicion and a statement imputing guilt of criminal conduct. The Full Court held as to the first imputation that the ordinary reasonable reader would have inferred from the words that the appellant believed that the respondent was guilty of criminal misconduct and that he was going to endeavour to persuade the police investigators to that point of view. Accordingly, the Full Court was not prepared to uphold the appeal on the ground that the learned trial Judge had erred in law in finding that the words complained of were capable of bearing the imputation pleaded, that is to say, that the respondent was guilty of criminal misconduct in the conduct of his office.

40 In dealing with the second imputation, the Full Court noted that a plea which sets up an imputation of mere suspicion, without more, is not capable of carrying a defamatory meaning. However, to say that someone believed there was a "prima facie case" brings with it an assertion that the person has so conducted himself as to give reasonable grounds for the other person to hold the suspicion. However, it is necessary to support the imputation by pleading the precise act or condition asserted of or attributed to the alleged wrongdoer. One way to test it, is to consider what must be proved in order to justify the truth of the imputation insofar as it concerns the alleged wrongdoer. The Full Court held that, in the circumstances of the case before it, the second imputation had failed to identify the precise act or condition complained of.

41 In the course of its reasoning, the Full Court appeared to approve the notion to be found in Jackson v John Fairfax & Sons Ltd (supra) and a number of earlier cases that the second imputation was not capable of being defamatory if it was a statement of mere suspicion and no more. If it extended beyond mere suspicion and contained the assertion that the suspicion was held on reasonable grounds which themselves objectively lead to a conclusion that the person charged is probably guilty of the crime charged, then it could be regarded as defamatory.

42 It is pursuant to reasoning of this kind that counsel for the plaintiff sought to justify the manner in which the imputations were pleaded in the present case.

43 Put shortly, counsel for the plaintiff contended, the article complained of contained passages which conveyed to the reader that the plaintiff had been questioned extensively about her husband's death. Arrayed against the police conclusion that he had committed suicide was the information that the deceased's family in Melbourne were troubled by the outcome and wanted the inquiry reopened.

44 The suspicion conveyed to the reader by such words, namely, that the death had been brought about by some means other than suicide was then reinforced by the information that Geoffrey was not the type to take his own life and he seemed fine when his mother spoke to him on the day of his death.

45 Looked at in this light, counsel argued, the words complained of were capable of conveying defamatory imputations of the kind pleaded, namely, that the plaintiff had so conducted herself as to give rise to a suspicion, on reasonable grounds, that she had killed her husband (par 5.1) and, in the alternative, that the plaintiff had so conducted herself as to give rise to a suspicion, on reasonable grounds, of causing a third party to kill her husband (par 5.2). Further, that the plaintiff is suspected on reasonable grounds of killing Geoffrey Higgins (par 5.3).

46 Counsel for the defendant submitted that the imputation is not reasonably capable of being conveyed by the words complained of. There was nothing in the words complained of which suggested that there were reasonable grounds to support an imputation that the plaintiff is suspected of having killed her husband.

47 Counsel for the defendant placed considerable reliance upon the recently decided case of Rakhimov v Australian Broadcasting Corporation & Anor [2001] NSWSC 10.

48 In that case, a television programme referred to the activities of a senior official of Olympic amateur boxing. It was said that "he claims to be a successful businessman but the FBI think differently. They suspect him of drug trafficking and their list of his associates included some of the most dangerous criminals in the world".

49 This segment of the programme was reduced to a pleaded imputation that "the plaintiff behaved in such a way as to deserve to be suspected by the FBI of drug trafficking".

50 Justice Levine undertook a lengthy review of the previously decided cases and noted that Jackson's case has been used to support the proposition that an imputation that a person is suspected of certain conduct implies that the plaintiff has so conducted himself as to give rise to the suspicion.

51 He referred also to Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, which seemed to confirm the view that where a matter complained of states or implies that the police suspected the plaintiff had committed a crime, that matter is capable of conveying the imputation that the plaintiff has so acted as to warrant that suspicion.

52 Justice Levine questioned the cogency of such an approach and suggested that the evolution of this approach has been at the expense of common sense in regard to the fundamental question of what the matter complained of "means". He was not prepared to accept that the ordinary reasonable reader as a matter of direct inference from the statement of the fact of the FBI's suspicion could conclude that the suspicion was based on conduct. He was not persuaded that in every case the statement in the passive voice that someone is suspected cannot constitute a properly formed imputation by reason of not attributing a condition to the plaintiff.

53 In his view, the facts before him were a clear case of where the ordinary reasonable viewer would understand nothing more than what was being said, namely, that the plaintiff was suspected by the FBI of being a drug trafficker. There could be reasons other than the plaintiff's conduct which had given rise to the suspicion and, thus, the statement was not necessarily to be taken as a comment upon the plaintiff's conduct.

54 Justice Levine went on to hold that the imputations contended for were not capable of being carried by the words complained of and could therefore not support a verdict for the plaintiff. However, he granted the plaintiff leave to plead an imputation in the passive voice based upon the plaintiff being suspected by the FBI of being a drug trafficker or any other cause of action considered to be available on bases other than those which he had rejected.

55 Counsel for the defendant in the present case submitted that the reasoning of Levine J in Rakhimov was to be preferred to the reasoning of the Full Court in Corse v Robinson and sought to persuade me that in the circumstances of the present case the words complained of, at their highest, would convey nothing more than a suspicion to the mind of the ordinary reasonable reader. There was nothing in the words to suggest that there were reasonable grounds to support an imputation that the plaintiff was suspected of killing her husband or, as to the imputation in par 5.2, that there was a third party in existence who might have been involved in the unlawful killing of the deceased. For these reasons, the imputations were untenable and should be struck out.

56 In my view, it is unnecessary for me to attempt to resolve a supposed conflict between the reasoning in the two cases just mentioned. Both cases acknowledge that if the words complained of convey to the mind of an ordinary reasonable reader nothing more than a statement of mere suspicion, this will not be sufficient. In the present case, however, it appears from the summary of the plaintiff's argument that I have just outlined, that there are circumstances referred to which, when added to the assertion that the plaintiff has been questioned at length by the police, are arguably capable of conveying a defamatory meaning of the kind contended for in the imputations pleaded in pars 5.1 to 5.3. The reader was informed that the deceased was not a suicidal type and had seemed fine to his mother shortly before his death.

57 It seems to me that, unlike the assertions in the Rakhimov case, the suspicion raised by the words complained of is arguably referable to the plaintiff's conduct because she was said to have been present at the death and is the party who was subsequently questioned at length by the police. One does not find such a link between the suspicions of the FBI in the Rakhimov case and some particular event, such as questioning, which points to the plaintiff's conduct.

58 I take account of the observations of Levine J concerning the use of the passive voice in regard to a pleading of this kind. It therefore seems to me that it is open to the plaintiff to advance a case based upon an imputation pleaded in the form set out in par 5.3.

59 For these reasons, I am not prepared to strike out pars 5.1, 5.2 and 5.3 of the May minute of proposed claim. I am not persuaded that the imputations contended for are obviously untenable or manifestly groundless. It follows from earlier discussion, however, that I will strike out par 4 of the claim.

60 I will hear from the parties as to whether any further orders are required.