Defamation - Application to strike out statement of claim - Turns on own facts

Defamation - Damages - Aggravated and exemplary damages - Turns on own facts

Paragraph 11(b) of statement of claim struck out with liberty to amend

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510

Australian Consolidated Press Ltd v Uren [1966] HCA 37; (1966) 117 CLR 185

Australian Liquor, Hospitality & Miscellaneous Workers Union (Miscellaneous Workers Division) (WA Branch) v Mulligan (1996) 15 WAR 385

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

David Syme & Co v Canavan [1918] HCA 50; (1918) 25 CLR 234

Eastwood v Holmes [1860] EngR 56; (1858) 175 ER 758

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

Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410

Gorton v Australian Broadcasting Commission (1973) 22 FLR 181

Gumina v Williams [No 1] (1990) 3 WAR 342

Jones v Skelton [1963] 1 WLR 1362

Leslie v Mirror Newspapers [1971] HCA 66; (1971) 125 CLR 332

Lewis v Daily Telegraph Ltd [1964] AC 234

McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485

Metaxas v West Australian Newspapers Ltd, unreported; SCt of WA (Steytler J); Library No 970411; 18 August 1997

Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Morgan v Odhams Press Ltd [1971] 1 WLR 1239

Pollack v Volpato [1973] 1 NSWLR 653

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

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

Slim v Daily Telegraph Ltd [1968] 2 QB 157

Smith v Littlemore (1996) 15 WAR 289

Taylor v Jecks (1993) 10 WAR 309

1 STEYTLER J: This is an application by the defendant in defamation proceedings to strike out various paragraphs of the statement of claim.

2 The plaintiff pleads that he was between May 1995 and November 1997 a councillor of the City of Wanneroo ("the City") (par 1.1). He was, from May 1997 onwards, the City's Deputy Mayor (par 1.2). Between November 1997 and March 1998 the City's Council was suspended pending an inquiry instituted by the Minister for Local Government into the City (par 1.3). In March 1998 the plaintiff was reinstated as a councillor of the City with effect from the date of suspension (par 1.4). He remained a councillor until about 1 July 1998 when, as par 1.4 of the statement of claim puts it, the City of Wanneroo was abolished.

4 Paragraph 3 of the statement of claim pleads as follows:

"3 On Thursday 1 July 1999 at approximately 5.00 pm, the Defendant broadcast to the Perth metropolitan area it's [sic] news programme entitled 'Ten's News Hour', part of which was of and concerning the Plaintiff, and which contained the following words and pictures:

[news reader] 'The end of an era today for the Northern suburb City dogged by controversy. The City of Wanneroo has been newly named in the hope of a new beginning.'

[reporter] '35 balloons representing each suburb in the newly named City of Joondalup. Today marking the official split of the former Shire of Wanneroo from the City of Joondalup.'

Interviewee: 'This area has become too large. The growth was too rapid for one Council. It is appropriate that we now have two cities here.'

Reporter: 'Dogged by scandal and controversy culminating in a Royal Commission, the former City of Wanneroo was sacked 18 months ago with changes to the Local Government Act, assurances history won't repeat itself.'

Interviewee: 'CEO's [sic] have to be employed on a performance based contract and they have to be assessed each year. The Council itself has to have more open meetings.'

Reporter: 'Codes of conduct and conflict of interest measures are also in place.'

Interviewee: 'We are making a fresh start. That is all in the past and the new City of Wanneroo well - we've adopted the slogan of "it's a city with something for everyone" and we are going forward with very positive views.'

Reporter: 'But despite today's formal split, rate payers of both municipalities will continue to be governed by appointed commissioners until local elections in December. Mignon Henne, Ten News.' "

5 In par 4 of the statement of claim, the plaintiff pleads that the broadcast referred to and was understood to refer to him and that he was identified by the broadcast. He relies, in that respect, upon the following particulars:

"(a) the Plaintiff repeats paragraph 1 herein [being the paragraph in which he recites his history, set out above, as a councillor and Deputy Mayor of the City];

(b) the Plaintiff was identifiable as a councillor of the former City of Wanneroo during the period of 1995 to 1998 and the City's Deputy Mayor as from November 1997, and was therefore identified by the phrase 'the former City of Wanneroo was sacked 18 months ago ... ';

(c) the City of Wanneroo at the relevant time was constituted by 15 councillors, of which the plaintiff was one;

(d) the Plaintiff was known by a large but unquantifiable number of viewers being ratepayers or residents within the City of Wanneroo as a councillor and Deputy Mayor of the City of Wanneroo approximately 18 months prior to the publication of the Report and around the time of the Royal Commission into the City of Wanneroo;

(e) by reason of their knowledge of the said facts and matters, the Plaintiff was identified by a large, but unquantifiable, number of views [sic] of the Report as an individual referred to and identified by the said words. Without limiting the generality of this averment, these persons included persons who had resided in, and are presently residing within the municipal area of the former City of Wanneroo."

6 The defamatory imputations said to arise from the broadcast are pleaded in par 5 which reads as follows:

"5 In its natural and ordinary meaning, and by reason of the identification and reference to the Plaintiff described in paragraph 4 herein, the Report meant and was understood to mean that:

5.1 the Plaintiff was dismissed from his position as a councillor of the City of Wanneroo for good cause;

5.2 the Plaintiff was dismissed from his position as a councillor of the City of Wanneroo for misconduct."

7 In par 7 the plaintiff raises, by way of alternative, a plea of "true" innuendo, as follows:

"7 Alternatively, by way of innuendo, the Report was understood to mean:

7.1 the Plaintiff was dismissed from his position as a councillor of the City of Wanneroo for good cause;

7.2 the Plaintiff was dismissed from his position as a councillor of the City of Wanneroo for misconduct.

(a) the Report was understood to refer to the Plaintiff and bear the defamatory meanings pleaded in this paragraph to those viewers who knew that the Plaintiff was a councillor for the City of Wanneroo approximately 18 months prior to the Report and around the time of the Royal Commission into the City of Wanneroo;"

8 In par 9 of the statement of claim the plaintiff pleads that the publication of the broadcast was made in circumstances in which it was a natural and probable consequence of the broadcast that its contents would be republished.

9 Then, in par 10 to par 13 inclusive the plaintiff pleads as follows:

"10 The Defendant published the Report using the sensational term 'sacked' knowing that the imputation conveyed therein was false, or with reckless disregard as to the truth or falsity of the imputation and knew that the Plaintiff would regard the Report as having been so made.

(a) prior to the broadcast of the Report the Defendant had reported and thereby had knowledge of the fact that the City of Wanneroo councillors at the relevant time had been suspended and subsequently re-instated in the manner described at paragraphs 1.3 and 1.4 herein.

(b) the Defendant failed to contact the Plaintiff or any other former councillor of the City of Wanneroo during the relevant period to seek their comment or response upon the allegation which was to be made in the Report;

(c) any such enquiry of the Plaintiff or any other councillor at the relevant time, or any other due or proper enquiry would have revealed the falsehood in the Report;

(d) given the gravity and sensational nature of the term 'sacked', which was to be used in the Report, due inquiry ought to have been made into the correctness of that allegation.

11 The Defendant has refused, despite demand, to apologise to the Plaintiff in circumstances where an apology is self-evidently called for and in circumstances where the refusal to apologise has been contemptuous and made in the knowledge that the Defendant's defamation has affected the Plaintiff in respect of the Plaintiff's local political aspirations.

(a) the Defendant refused or failed, despite demand by the Plaintiff by way of:

(i) a telephone call to the Defendant on the night of 1 July 1999 immediately after the broadcast of the Report; and

(ii) by the Plaintiff's solicitor's letter before-action dated 7 July 1999;

(b) upon receiving a complaint on 2 July 1999 from another member of the council of the City of Wanneroo at the relevant time, Mr Mayger, the Defendant said and thereby adopted the position that it would not apologise or broadcast an apology, withdrawal or retraction unless it received an undertaking that no action would be taken against the Defendant in respect of the Report and that there was no way that the Defendant would provide such an apology while there was a possibility that the Defendant could be sued over the Report;

(c) the Defendant has refused to apologise in circumstances where the Defendant has been put on notice by the Plaintiff's letter-before-action of 7 July 1999 that the Plaintiff intends to run for election as a councillor in the newly formed City of Joondalup elections in December 1999, being the elections which were referred to in the Report.

12 By reason of the matters referred to in paragraphs 10 and 11 herein, the Defendant's conduct has been lacking in bona fides, unjustified and unreasonable in a manner which has aggravated the damage to the Plaintiff, and the Plaintiff thereby claims aggravated damages against the Defendant.

13 By reason of the matters described at paragraphs 10 and 11 herein the Defendant has acted in contumelious disregard of the Plaintiff's rights and, the Plaintiff thereby claims exemplary damages against the Defendant."

10 The defendant's first attack is on the plea of identification in par 4 of the statement of claim. The defendant contends, by its counsel, that the broadcast does not refer to the plaintiff by name, that he is not identified by it and that he consequently has no cause of action.

11 Moreover the defendant contends that the broadcast is incapable of being interpreted as asserting that each member of the former City of Wanneroo was guilty of any particular conduct and contains no material indicating that the plaintiff himself was guilty of any particular conduct.

12 It is true that the plaintiff is not personally identified, as an individual, in the broadcast. Consequently, the only identification of him would be to those who knew of him and knew that he had been a councillor and Deputy Mayor of the City of Wanneroo at the material time. However it seems to me that those who knew of the matters pleaded in par 4(d) of the statement of claim would have identified the plaintiff as one of those who was "sacked". I should add, in this respect, that the plea of identification in par 4 is really one of a true innuendo and it seems to me consequently to be unnecessary to plead both that paragraph and par 7 of the statement of claim, although no point was taken in this respect (no doubt because, if there is merit in it, little turns upon it).

13 The real issue raised by the arguments of counsel seems to me to be that of whether, in circumstances in which the plaintiff was one of 15 councillors, the imputations pleaded in par 5 and par 7 (and they are identical) are arguably capable of arising.

14 The usual tests in that respect are well understood and I will not repeat them. It is enough, in this respect, to refer to what has been said in such cases as Smith v Littlemore (1996) 15 WAR 289 at 294 - 295 and Heytesbury Holdings Pty Ltdv City of Subiaco (1998) 19 WAR 440 at 446 - 447. However the position is made more difficult when the plaintiff is one of a group and only the group is referred to. Senior counsel for the defendant relied, in this respect, upon the case of Knupfer v London Express Newspaper [1944] UKHL 1; [1944] AC 116. The respondent, in that case, had printed and published the following words:

"The quislings on whom Hitler flatters himself he can build a pro-German movement within the Soviet Union are an emigré group called Mlado Russ or Young Russia. They are a minute body professing a pure Fascist ideology who have long sought a suitable fuehrer - I know with what success. Established in France and the United States they claim to have secret agents able to enter or leave the Soviet Union at will. Hitler intends to nominate a puppet fuehrer from their ranks to replace the Soviet national leaders of the Kremlin, and establish a reactionary totalitarian serf State on the German and Italian model. The proposed line of operation is the seducing of Red Army officers from their allegiance to their country and with their aid destroying trade unions, co-operatives, collective farms, and the Soviet parliamentary system with a ruthless massacre of all the present leaders, great and small, of the Russian people. The vast majority of Russian emigrés repudiate these people, but Hitler is accustomed to find instruments among the despised dregs of every community. He intends Ukrainian pogroms as a starting point for general anarchy in Russia."

15 The appellant, who was a Russian resident in London, sued for defamation. Evidence was given at the trial that he had joined the Young Russia Party in 1928 and that he had become its assistant representative in Great Britain in 1935. In 1938 he was appointed its representative in Great Britain and head of the British branch. The total membership of the party was about 2,000 but the British branch comprised only 24 members. Four witnesses who knew the appellant said that their minds had gone to him when they read the article. However the House of Lords held that as a matter of law the words were incapable of referring to the appellant as an individual. Lord Atkin said, in this respect, that (at 122):

"The reason why a libel published of a large or indeterminate number of persons described by some general name generally fails to be actionable is the difficulty of establishing that the plaintiff was, in fact, included in the defamatory statement, for the habit of making unfounded generalisations is ingrained in educated or vulgar minds, or the words are occasionally intended to be a facetious exaggeration."

16 "Gatley on Libel and Slander", 9th ed, points out (par 7.8) that a plaintiff is more likely to succeed in a case of this kind where he is a member of a small group at whom the words are aimed. However that is because it is more likely, in such a case, that every member of that small group is likely to have been referred to. That, in the end, seems to me to be the test, namely, whether the imputation is capable of being understood as being one directed at each one of the members of the group.

17 Gatley, above, par 7.9, gives as examples the cases of Foxcroft v Lacey (1614) Hobart 89 and McKay v Southam Co Ltd (1956) 1 DLR (2d 1). In the first of those cases a suit was pending against the plaintiff and 16 other persons and it was said of them that, "These defendants helped to murder H. F.". It was held that this was "sufficient to entitle every one of the defendants to a several action as if they were specially named". In the second of those cases a newspaper columnist had attacked capital punishment by means of a theoretical arraignment of society for the "murder" of an accused sentenced at a trial. In the course of so doing he referred to the jury as having "planned the murder". This was held to be defamatory of each juror.

18 Gatley also refers (ibid) to the case of McPhail v MacLeod (1895) 3 SLT 91 in which a newspaper report insinuated that the members of a presbytery were themselves so given to excess that it was unbecoming in them to take proceedings deposing a minister for intemperance. It was held that each member of the presbytery was entitled to sue for defamation.

19 A more extreme example is also given by Gatley (ibid) in the form of Ortenburg v Plamondon (1914) 24 Quebec KB 69. That case was decided under the civil law of Quebec but referred to common law cases. The defendant had, in a lecture, attacked and abused the Jewish race and its religious doctrines and social practices. Its object was to put the people of Quebec on guard against the Jews of Quebec. There were then only 75 Jewish families in a total population of 80,000 people. It was held that the plaintiff, being one of the "restricted collectivity" of the Jews of Quebec, was entitled to maintain his action for defamation against the defendant.

20 Finally I should mention in this respect the case of Bjelke-Peterson v Warburton [1987] 2 Qd R 465. There the second defendant published as part of its news programmes words allegedly spoken by the first defendant, the Deputy Leader of the opposition, as follows:

"I'll keep coming back. I'll be talking about this Government's corruption and its mismanagement.

And for the five days I'm going to start talking to the public servants about government corruption. I'm going to ask the public servants that are out there that know what these blokes have been doing and know which ministers have their hands in the till to come and talk to me."

21 The whole of the Ministry for the State of Queensland sued for defamation. Each of the Ministers alleged imputations that he or she was corrupt and that he or she had had his or her hands in the till. The court held that the class was sufficiently narrow for each member of it to complain that the words complained of might reasonably be taken to refer to him or her (see Kneipp J at 467; Connolly J at 469 and 471 - 472; and Vasta J at 476).

22 That brings me to the imputation pleaded in par 5.1.

23 It seems to me firstly, as regards that plea, that the publication is arguably capable of giving rise to an imputation that the whole council was dismissed for good cause. That, in my opinion, is because of the comment, by the reporter, that the "former City" (which would, I think, plainly be taken to be a reference to its council) was dogged by scandal and controversy culminating in a Royal Commission before it was sacked and by the reference to the fact that changes to the Local Government Act provided assurances that history would not repeat itself.

24 Next, notwithstanding that the reporter's comments related to the whole council, and not to any particular individual or individuals, it seems to me to be arguable that the imputation is capable of arising that every member of the council (and it may be significant that the plaintiff was its Deputy Mayor) had been dismissed from his or her position as a councillor for good cause, the whole of the council (and there were, as I have said, only 15 members of it) having been sacked. This is arguably (and that is enough for present purposes) one of those cases referred to by Viscount Simon LC in Knupfer, above at 119, "in which the language used in reference to a limited class may be reasonably understood to refer to every member of the class ... ".

25 If that imputation is arguably open then, it seems to me, so too is one to the effect that the plaintiff was dismissed from his position as a councillor of the City for misconduct. The inference of misconduct on the part of the former members of the council of the City, being, arguably, a reference to each of them (and, once again, it may be significant that the plaintiff was its Deputy Mayor), arises from the reference to the fact that it was "sacked" after being dogged by scandal and controversy culminating in a Royal Commission. It might also be supported by the reference to the fact that "[c]odes of conduct and conflict of interest measures" have been put in place.

26 Senior counsel for the defendant next complained that an imputation that someone was dismissed for good cause is imprecise and, depending upon the "cause", not necessarily defamatory. However it seems to me that any lack of precision is brought about by a corresponding lack of precision in the published words. Moreover, as was said by Lord Pearson in Drummond-Jackson v British Medical Association [1970] 1 WLR 688 at 698 - 699:

"In any case, words may be defamatory of a trader or business man or professional man, though they do not impute any moral fault or defect of personal character. They can be defamatory of him if they impute lack of qualification, knowledge, skill, capacity, judgment or efficiency in the conduct of his trade or business or professional activity."

27 It seems to me that an imputation that the plaintiff was dismissed for "good cause" is defamatory of him as the very notion of a justified dismissal (and that is what is conveyed by "good cause") carries with it the further notion of misconduct (being the subject of imputation 7.2) or lack of qualification, knowledge, skill, capacity, judgment, efficiency or the like (cf, in this respect, Morris v Sanders Universal Products [1954] 1 WLR 67).

28 I am consequently not prepared to strike out par 5 or par 7.

29 The defendant next complains of par 9 of the statement of claim. It is said to be irrelevant. While the plea there made adds little in circumstances of a mass media publication I am not prepared to strike it out as it seems to me to be arguably relevant to the issue of damages.

30 That leaves the attack on par 10 to par 13 inclusive of the statement of claim.

31 I have many times drawn attention to the distinction between exemplary and aggravated damages and to the requirements for an award of each. It is convenient for me simply to repeat what I said in that respect in Gardiner v Ray [1999] WASC 140 at par 23 to par 26 inclusive:

"There is a functional distinction between aggravated and exemplary damages. This appears from what was said by Windeyer J in Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118 at 149 to the effect that aggravated damages 'are given to compensate the plaintiff when the harm done to him by a wrongful act was aggravated by the manner in which the act was done' whereas exemplary damages 'are intended to punish the defendant, and presumably to serve one or more of the objects of punishment - moral retribution or deterrence'.

Consequently aggravated damages might, in a proper case, be awarded in respect of the emotional effect on a plaintiff of a tort committed against that plaintiff whereas exemplary damages are designed to punish the wrongdoer regardless of any effect of the wrong on that plaintiff. In Pollack v Volpato [1973] 1 NSWLR 653 at 657 Hutley JA said:

'Whereas compensatory damages have to be approached by looking at the situation of the plaintiff in consequence of the wrongful act to which he has been subjected, punitive damages have to be looked at from the side of the defendant. If he is to be punished, it is his proper punishment which provides the basis for the assessment of damages.'

I have previously remarked (Ronci v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960340; 21 June 1996) that the distinction is easier to state than to apply and that it might well be the case that the very circumstances which increase a plaintiff's hurt and outrage might make it desirable for the court to punish the wrongdoer (see also Johnstone v Stewart [1968] SASR 142 and Kercher and Noone: Remedies, 2nd ed at 360 - 362).

There is a range of circumstances which might warrant an award of aggravated damages encompassing not only conduct in the publication of the defamatory material (as to which see, for example, Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 and cf Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474 at 487) but also conduct of the defence (see Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497 at 514; Cassell v Broome [1972] UKHL 3; [1972] AC 1027 at 1071 and Coyne v Citizen Finance [1991] HCA 10; (1991) 172 CLR 211). In every case the conduct must be unjustifiable, improper or lacking in bona fides (see Fleming: The Law of Torts, 9th ed at 660; Bickel v Fairfax, supra, at 497; David Syme v Mather [1977] VicRp 58; [1977] VR 516 at 530, 535; Coyne v Citizen Finance, supra, at 237)."

32 Exemplary damages will only be awarded in cases of conscious wrong doing in contumelious disregard of another's rights (see Whitfield v De Lauret & Co [1920] HCA 75; (1920) 29 CLR 71 at 77 and Uren v John Fairfax & Sons Pty Ltd [1966] HCA 40; (1966) 117 CLR 118). Moreover damages of that kind can only be awarded where the defendant's conduct merits punishment as, for example, where it discloses fraud, malice, violence, cruelty, insolence or the like, or where the defendant otherwise acts in contumelious disregard of the plaintiff's rights (see Sanders v Cell (1997) 73 FCR 569 at 597 and Coloca v BP Australia Ltd [1992] VicRp 74; [1992] 2 VR 441 at 448).

33 The defendant contends that nothing in par 10 or par 11 of the statement of claim gives rise to, or supports, an inference that the publication was unjustified, improper, lacking in bona fides or that there was any conscious wrong doing.

34 It contends, in this respect, that falsity of any part of the publication, or the intention of the defendant, is irrelevant to the issue of aggravated or exemplary damages. It relies upon what was said by Hunt J in Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 75 - 76 as follows:

"Falsity is a matter which goes to aggravated compensatory damages, rather than ordinary compensatory damages: Aldridge v John Fairfax & Sons Ltd [1984] 2 NSWLR 544 at 549. As I pointed out in the earlier part of this judgment, the falsity of the matter complained of is relevant only so far as it affects the imputations upon which the plaintiff relies; the falsity of any other part of the report is irrelevant to the issue of aggravated damages. It would be sufficient, therefore, to allege only that the imputations were false in the same way as a defendant asserts, in mitigation of damages, that the imputations were true ...

As originally supplied, each of these particulars added the words 'to the knowledge of the defendant', but this allegation was deleted by the plaintiff during the course of the argument. It is unnecessary for the plaintiff to establish such knowledge on the part of the defendant in order to recover aggravated damages. Indeed, the defendant's knowledge of that falsity is irrelevant to the issue of damages unless that state of mind affected the harm done to the plaintiff: s 46(3)(b); effectively, as I said earlier, this means that the plaintiff is unable to recover aggravated damages upon that basis unless he was aware of that knowledge on the part of the relevant servant or agent of the defendant."

35 Some care must be taken in applying decisions given in New South Wales in this context. That is because the Defamation Act 1974 (NSW) abolished punitive damages and, by s 46(3), restricted an award which includes aggravated damages based upon the malice or other state of mind on the part of the defendant to the situation where the plaintiff is aware of that state of mind (see Waterhouse, above, at 75). That said, the plea in par 10(a) is, in any event, that the defendant knew, prior to the broadcast, of the falsity of the report and it is at least implicit in what has been pleaded that the plaintiff was aware of that state of mind. Paragraph 10 of the statement of claim alleges that the defendant knew that the plaintiff would regard the television broadcast as having been made with knowledge of the falsity of the imputation conveyed thereby or with reckless disregard as to its truth or falsity. That is a matter which might go in support of a plea of aggravated damages. Moreover it seems to me that the publication of a defamatory imputation with knowledge of its falsity or with reckless disregard as to its truth or falsity is a matter which might support a claim for exemplary damages. (See, in this respect, Gatley, above, par 9.16.) I am consequently not prepared to strike out particular (a).

36 The defendant complains, as regards par 10(b), that a mere failure to contact or forewarn in the absence of some obligation to do so prior to publication is not reasonably capable of supporting a claim for aggravated or exemplary damages. However what is pleaded is really a failure to make enquiries of the plaintiff or any other councillor. So much becomes plain when particular (b) is read with particulars (c) and (d).

37 In Waterhouse, above, ibid, Hunt J has pointed out that the issue of damages, and thus of aggravated damages, might arise either because a report was unfair or because it was not published in good faith for public information or for the advancement of education. His Honour also there said that if a report is found to be substantially inaccurate, the only inquiries which could be considered as relevant to the issue of aggravated damages are those which would have demonstrated that inaccuracy. That, as I read par 10(b) is what the plaintiff pleads when read together with par 10(c).

38 I should add that in Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 the defendant's failure to make proper inquiries prior to the publication was held to be relevant as probative of recklessness on its part, and thus a basis for an award of aggravated damages where, at least, that failure was unjustifiable, improper or lacking in bona fides.

39 It consequently seems to me to be arguable that the matters pleaded in par 10(b), taken together with the other matters pleaded, are sufficient to give rise to a claim for aggravated damages. The same conduct might arguably be regarded as in contumelious disregard of the plaintiff's rights and thus sufficient for an award of exemplary damages.

40 Counsel for the defendant next contended that the mere fact of publication in a sensational manner, as alleged in par 10(d) is not relevant to, and not reasonably capable of supporting, a claim for aggravated or exemplary damages. He relied, in that respect, on Waterhouse, supra, at 79. However Hunt J said of a particular which relied upon an unfair, extravagant and over-sensational manner of publication that such matters are "capable of aggravating the injury to the plaintiff, in the sense of making the injury worse, and so are relevant to aggravated compensatory damages rather than limited to merely ordinary compensatory damages." While his Honour also said (and it is presumably this which is relied upon by counsel for the defendant) that these matters, in order to qualify as material upon which an award of aggravated compensatory damages might be made, must be capable of being regarded as unjustifiable, improper or lacking in bona fides, that, as it seems to me, is a matter for trial. So, too, in my opinion, is the question whether conduct of that kind, taken together with the other matters pleaded, is such as to amount to conscious wrongdoing in contumelious disregard of the plaintiff's rights and consequently a sufficient basis for an award of exemplary damages.

41 I am consequently not prepared to strike out par 10.

42 As to par 11, the plaintiff relies upon what he says was a "contemptuous" refusal to apologise. A failure to apologise can, in some circumstances, support a claim for aggravated damages. Thus in Sutcliffe v Pressdram Ltd [1991] 1 QB 153 Nourse LJ said (at 184) that the conduct of a defendant which may often be regarded as aggravating the injury to the plaintiff's feelings, so as to support a claim for "aggravated" damages, includes a failure to make any or any sufficient apology and withdrawal. (See also Rantzen v Mirror Group Newspapers (1986) Ltd [1984] QB 670 at 683 and Andrews v John Fairfax & Sons Ltd, above, at 243, per Hutley JA, and 249 - 250, per Glass JA.) While the majority of the High Court in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44 at 66 commented that it was difficult to see how the "mere absence of an apology" can aggravate damages, it remains arguable that the absence of an apology might, when coupled with other circumstances, do so. (See the discussion of that case, and the circumstances in which the majority of the High Court made that comment, in Clark v Ainsworth (1996) 40 NSWLR 463 at 468 - 469). Here the refusal to apologise is pleaded to have been made in circumstances in which the defendant knew that the plaintiff intended to run for election as a councillor in the City of Joondalup elections to be held in December 1999, being the elections referred to in the television broadcast, and that the defamation had affected him in respect of his "local political aspirations". That, in my opinion, is arguably enough to support a claim for aggravated damages. Similarly, a failure to apologise in circumstances of this kind might, at least arguably, support a claim for exemplary damages. (See Oracle International Pty Ltd v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970696; 11 December 1997.)

43 As matters developed at the hearing, the principal attack on par 11 of the statement of claim related to the particular pleaded in subpar (b) thereof. That paragraph was said to be irrelevant to any issue. It seems to me that if the plaintiff is to rely upon that particular he must plead that he was told by the defendant that the position taken up by the defendant as there pleaded would apply to him also or at least that the circumstances of Mr Mayger's complaint were so similar to his own that this was necessarily implicit in what was said by the defendant. It is difficult to see how there could otherwise have been any aggravation of the harm caused to him by the alleged defamation or why any award of exemplary damages should be made at his behest. I would consequently not allow that paragraph to stand in its present form.

44 Finally, I should say that I am not persuaded by the submission, advanced on behalf of the defendant, that the plaintiff has not adequately distinguished between the claim for aggravated damages and that for exemplary damages. It seems to me to be plain from par 12 and par 13 that each of the matters pleaded in par 10 and par 11 is relied upon for each claim. That, in my opinion, is sufficient for the purposes of O 20 r 9(3) of the Rules of the Supreme Court which requires that a claim for exemplary damages or one for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies.

45 It follows that I propose to strike out par 11(b) of the statement of claim, with liberty to amend, but otherwise to dismiss the defendant's application.