WEEKS -v- NATIONWIDE NEWS PTY LTD [2018] WASC 113 (13 April 2018)

The former head of Western Australia's strifetorn Aboriginal affairs department, who left behind an agency riven with allegations of bullying and a toxic culture, has been appointed to a key Red Centre post in the Northern Territory under controversial, racebased hiring rules.

Cliff Weeks [the plaintiff] was given the job of Executive Director Central Australia in the Department of the Chief Minister on an annual salary of $246,537 under Special Measures diversity provisions.

That paragraph identifies the plaintiff as the person referred to in the headline and the lead paragraph.

1. The article goes on to refer to the Special Measures diversity provisions in accordance with which the plaintiff was appointed to the position. Those provisions require the government to appoint the best indigenous candidate who meets the selection criteria for a positon. The article says that the rules were designed to increase indigenous public sector employment but:

[I]nsiders say they are instead causing lesssuitable, often interstate candidates to be appointed to key local positions ...

The article then returns to the plaintiff stating that he:

[Q]uietly left his post as head of WA's Department of Aboriginal Affairs last year after more than five years in the job. At the time, the DAA was wracked by controversy over its poor handling of Aboriginal heritage issues in the town of Broome. A staff survey identified high levels of workplace bullying and low confidence in management. The problems were so severe that the then WA Aboriginal affairs minister, Peter Collier, criticised his own department for poor communication and a lack of procedural fairness. Yawuru Aboriginal Corporation CEO Peter Yu called the DAA at that time 'highly incompetent'.

1. The article goes on to describe the process by which the plaintiff was appointed to the Northern Territory job. A letter sent to unsuccessful candidates is said to have stated that the plaintiff demonstrated his experience across all criteria and at interview the plaintiff demonstrated this experience through examples of government responses he led in the communities of Roebourne and Oombulgurri. The article then says:

Roebourne has since become notorious for paedophilia. Oombulgurri closed in 2011.

The remaining paragraphs of the article report statements on behalf of the Northern Territory Chief Minister and the Department of the Chief Minister about the process by which the plaintiff was appointed to the Northern Territory position.

1. The plaintiff pleads that the article was defamatory in its natural and ordinary meaning and was understood to mean that the plaintiff was incompetent in his profession as the head of a government department.

1. In [10] of their defence the defendants plead that if the article was defamatory of the plaintiff in the meaning alleged in the statement of claim then any such defamatory matter was an expression of opinion or comment of Nationwide News, Mr Aikman or alternatively of a commentator, the opinion or comment related to a matter of public interest, the opinion or comment was based on proper material and the defendants have a defence of fair comment at common law or honest opinion pursuant to s 31(1) and (2) of the Defamation Act 2005 (WA) and the corresponding provisions in the Defamation Acts of each other Australian State and Territory. The defendants subjoin to [10] of their defence particulars of the opinion or comment, particulars of the public interest and particulars of proper material.
2. The plaintiff submits that the article is not capable of constituting comment or opinion and hence the common law defence of fair comment and the defence of honest opinion under Defamation Act s 31(1) and (2) disclose no reasonable defence and should be struck out. The plaintiff further says that the pleading is inadequate in that it fails to identify the 'commentator' and does not give adequate particulars of the proper material on which the opinion or comment is based and for those reasons the pleading is embarrassing and should be struck out. Counsel for the plaintiff, Mr Bennett, submitted that the plaintiff's challenge to the defences of fair comment and honest opinion raise matters of substance and is the principal ground of challenge to the defence. Accordingly, I will consider the challenge to the defences of fair comment and honest opinion first.

1. Both at common law and under Defamation Act s 31(1) and (2) it is for the jury to decide whether what has been published is a statement of fact or a comment or opinion. It is only if the matter is not reasonably capable of being regarded as comment or opinion that the judge may strike out the pleading of comment or opinion.
2. Counsel for the defendants, Mr MacLaurin, submitted that the question of whether the matter was an expression of opinion (or comment) rather than fact is not a matter for summary determination, but is one for trial and it cannot be said that the defendants' pleading is so untenable that it could not succeed at trial.
3. In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 79 ALJR 1716 (Favell) the High Court approved the following statement of MacPherson JA as a correct approach where application is made to strike out defamation pleadings as disclosing no cause of action:

Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken [6].

In Channel Seven Adelaide Pty Ltd v Manock [2007] HCA 60; (2007) 232 CLR 245 (Manock) Gummow, Hayne and Heydon JJ approved of that statement in Favell and said that the same applies to the striking out of defences and added:

Thus the fact, for example, that reasonable minds might possibly differ about whether the pleaded material is fact or comment is a strong reason for not striking out the allegations, but once the conclusion is firmly reached that it is fact, there is no justification for not giving effect to that conclusion [33].

1. Mr MacLaurin submitted that the plaintiff's strike out application is contrary to the principles set out in Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281. Technical pleading points have been discouraged by the court since the advent of active case management. However, striking out a defence that cannot succeed is consistent with case management principles. The court is charged with a duty to manage cases actively, in particular to identify the issues at an early stage and dispose summarily of claims or defences that cannot succeed. Time and resources will be wasted unnecessarily in interlocutory processes and at trial if the defendants' defences of fair comment and honest opinion are allowed to proceed to trial when they cannot succeed.

1. In Manock the High Court considered the distinction between fact and comment in the common law defence of fair comment. The plurality (Gummow, Hayne and Heydon JJ) explained:

A 'discussion or comment' is to be distinguished from 'a statement of a fact'. 'It is not the mere form of words used that determines whether it is comment or not; a most explicit allegation of fact may be treated as comment if it would be understood by the readers or hearers, not as an independent imputation, but as an inference from other facts stated' [35]. (footnote omitted)

1. At [35] the plurality adopted the following words of Field J in O'Brien v Marquis of Salisbury (1889) 6 TLR 133, 137:

[C] omment may sometimes consist in the statement of a fact, and may be held to be comment if the fact so stated appears to be a deduction or conclusion come to by the speaker from other facts stated or referred to by him, or in the common knowledge of the person speaking and those to whom the words are addressed and from which his conclusion may be reasonably inferred. If a statement in words of a fact stands by itself naked, without reference, either expressed or understood, to other antecedent or surrounding circumstances notorious to the speaker and to those to whom the words are addressed, there would be little, if any, room for the inference that it was understood otherwise than as a bare statement of fact. (emphasis added by the plurality)

Their Honours formulated the test whether a statement is fact or comment this way:

The question of construction or characterisation turns on whether the ordinary reasonable 'recipient of a communication would understand that a statement of fact was being made, or that an opinion was being offered' not 'an exceptionally subtle' recipient, or one bringing to the task of 'interpretation a subtlety and perspicacity well beyond that reasonably to be expected of the ordinary reader whom the defendant was obviously aiming at' [36]. (footnotes omitted)

The ultimate determinant of whether the words are comment or fact is how they would strike the ordinary, reasonable reader: Gatley on Libel and Slander (12th ed, 2013) [12.8].

Matter is statement of fact not comment or opinion

1. The matter complained of is not reasonably capable of being understood by an ordinary and reasonable reader as an opinion or comment being offered by the author or publisher. The statements giving rise to the pleaded defamatory meaning are in form factual, not opinion or comment. There is nothing in the circumstances of the publication to indicate that they are expressions of opinion or comment rather than statements of fact.
2. The defamatory meaning arises from the author identifying the plaintiff with the wrongdoings, unwelcome or harmful situations and problems of the DAA, which he left behind after five years as its head. The first of those wrongdoings, situations and problems is that the DAA was riven with allegations of bullying and a staff survey had identified high levels of workplace bullying and low confidence in management. Those statements do not contain or follow words of opinion or comment such as opinion, belief, seems, view, think or consider. They are bald statements that stand by themselves naked without reference to any antecedent facts or circumstances on which the author was commenting or which formed the basis for the expression of an opinion or comment.
3. The second situation or problem identified is that the DAA was an agency with a toxic culture. This too is a statement of fact. It is not expressed in words indicating that it is an opinion or comment. It is a bald statement of fact. There are no antecedent facts from which it might be understood to be an inference or conclusion.
4. The third statement is that the DAA is racked with controversy over its poor handling of Aboriginal heritage issues in Broome, problems so severe that the Minister criticised his own department for poor communication and a lack of procedural fairness. There is no suggestion in the words that it is merely an opinion or comment that the DAA poorly handled Aboriginal heritage issues in Broome or that the department is racked with controversy over it or that it is merely an opinion that the department communicated poorly and did not afford procedural fairness. They are bald statements of fact. Again, there are no antecedent facts or circumstances stated from which the reader could understand the statements referred to, to be inferences or conclusions. The statement that Yawuru Aboriginal Corporation CEO Peter Yu called the DAA at that time [ie the time the plaintiff left his post as head of the DAA] 'highly incompetent' is again a statement of fact. It is either a standalone bald statement of fact or it is a characterisation of the DAA's handling of the Aboriginal heritage issues in Broome, which is stated, as a matter of fact, to be so poor that the Minister criticised his own department.
5. The article further says that the plaintiff put forward his experiences leading government responses in the communities of Roebourne and Oombulgurri to demonstrate his experience across all criteria. That is immediately followed by the statements that Roebourne has since become notorious for paedophilia and Oombulgurri closed in 2011. Those are statements of fact. There are no antecedent facts or circumstances from which the reader could form an opinion whether Roebourne is notorious for paedophilia or Oombulgurri closed in 2011 or whether those circumstances reflect on the plaintiff's competence.
6. Each of the statements giving rise to the pleaded defamatory meaning taken alone is a statement of fact. The same conclusion follows if they are taken together. I accept, with one qualification, that the imputation of which the plaintiff complains arises not from the express words of the statements referred to but as a conclusion, judgment or inference from some or all of them. The qualification is the statement attributed to Mr Yu which expressly uses the word 'incompetent'. Mr Yu said that the DAA, not the plaintiff, was incompetent but an ordinary reasonable reader would understand from the context that the statement is directed at the plaintiff. The article is about the appropriateness of the Special Measures diversity provisions which led to the plaintiff being appointed to the 'Northern Territory top job'. Mr Yu's statement follows sentences referring to the plaintiff leaving his post at the time it was racked by controversy over its poor handling of Aboriginal heritage issues in Broome, that a staff survey had identified high levels of workplace bullying and low confidence in management, which problems were so severe that the Minister had criticised his own department for poor communication and a lack of procedural fairness.
7. Subject to the qualification I have mentioned, the article does not say that the plaintiff was incompetent in his profession as the head of a government department in so many words. It may be said that the imputation of incompetence arises as an inference, conclusion or comment from the statements I have referred to. However, any comment is so closely and inseparably intermingled with the facts that it cannot be characterised as comment.
8. In the course of oral submissions Mr MacLaurin referred to the controversy whether the defence of fair comment is directed to the matter complained of itself or to the pleaded imputations. In Manock at [76] [87] the plurality considered the question: Is the meaning pleaded by the plaintiff relevant to the defence of fair comment pleaded by the defendant to which their Honours answered, 'yes'. The plurality said that the argument to the contrary was wrong in principle because:

[B]y the time the trial judge comes to consider the fair comment defence the question of meaning will have been decided adversely to the defendant. The meaning found is the comment to be scrutinised for its fairness. An initial question will be whether the ordinary reasonable viewer would have understood that the meaning found to have been conveyed was conveyed as comment. Another question would be whether that meaning was objectively fair. Another would be whether it was based on true facts. Each of the questions must be answered by treating the comment as being the twenty-eight words and the meaning which the court found. If the defendant's contention was not wrong, it would be open to the defendant to contend that the promotion bore some meaning other than the defamatory meaning which the trial judge had already found, which is impossible [83].

1. I do not consider that this principle is undermined by the distinction between the 'raw material of the actual words employed' and their meaning. The decision in Fraser v Holmes [2009] NSWCA 36; (2009) 253 ALR 538 does not require me to apply any different principle to the resolution of this strike out application.
2. The defence of fair comment and honest opinion should be struck out. Leave to replead will not be granted.

Other objections to fair comment/honest opinion defence pleading

1. It is unnecessary to consider the plaintiff's further objections to the defences of fair comment and honest opinion pleaded in [10] of the defendants' minute. However, I will set out my findings in relation to those further objections.
2. The basic requirements of pleading fair comment (and justification) were considered by Eady J in Foley v Lord Ashcroft [2012] EWCA Civ 423. His Honour said at [55] [60] that a defendant who pleads fair comment must give particulars with the degree of fullness and precision to enable a plaintiff to know not merely the general case he has to meet but also the acts which it is alleged that he has committed and upon which the defendant relies to warrant the comment. His Honour said in relation to a plea of justification:

Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it [49].

His Honour's observations concerning the sufficiency and particularity of particulars of justification applies equally to particulars of fair comment.

1. The plaintiff says that the pleading of the fair comment/honest opinion defence is inadequate. First, the plea in [10(a)] fails to identify the 'commentator'. Defamation Act s 31(3) provides that it is a defence to the publication of defamatory matter if the defendant proves that, amongst other things, the matter was an expression of opinion of a person (the commentator), other than the defendant or an employee or agent of the defendant, rather than a statement of fact. The defence as presently formulated does not refer to Defamation Act s 31(3). However, if they put forward a defence under s 31(3) the defendants should identify the 'commentator'. It is a material part of the defence and the plaintiff is entitled to know who the defendants assert to be 'the commentator' so that he knows the case he has to meet.
2. The plaintiff says that the particulars of proper material subjoined to [10] of the defence are inadequate. The comment must explicitly or implicitly indicate, at least in general terms, the facts on which it is based: Joseph v Spiller [2010] UKSC 53; [2011] 1 AC 852 (Joseph). The honest opinion must be based on proper material: Defamation Act s 31(1)(c), (2)(c), (3)(c). The defendants must clearly set out the facts on which they rely to warrant the comment or opinion. Those facts must clearly indicate the acts or omissions of the plaintiff or other things which warrant the comment that the plaintiff was incompetent in his profession as the head of a government department. The defence must do so with sufficient clarity that the plaintiff knows the case he has to meet.
3. The particulars of proper material are inadequate. Particular (e) is 'the fact of the report of Mr Alastair Bryant'. The particular is not clearly expressed or easily understood. The defendants do not base their comment on the contents of Mr Bryant's report; they do not say that the contents of the report are the proper material on which the honest opinion is based. Mr MacLaurin informed the Court that the defendants do not have the report. The references to Mr Bryant's report in the particulars of justification subjoined to [8] of the defence do not make the matter any clearer. Those particulars say that the issues with the DAA disclosed by the survey conducted by the Western Australia Public Sector Commission between 16 May 2016 and 8 June 2016 (Survey) were such that Mr Bryant was engaged by the Public Services Commission to further investigate the issues raised in the Survey, that Mr Bryant's investigation involved interviewing DAA staff and embedding himself in the DAA's offices for a period to observe the environment, that upon completion of his investigation Mr Bryant compiled a report detailing his findings and following the delivery of Mr Bryant's report the plaintiff ceased employment with the department. The defendants do not say that the plaintiff ceased his employment with the DAA because of the contents of Mr Bryant's report. They say nothing about the contents of Mr Bryant's report they do not know what the contents are. The particular appears to be nothing more than a hook on which the defendants might hang some evidence if and when they obtain the report and find something in it to support their case. That is not a permissible approach to pleading.
4. Particular (f) is 'the circumstances of the plaintiff's departure from the DAA'. The only thing said in the article about the plaintiff's departure from the DAA is that he 'quietly left his post ... after more than five years in the job'. The defendants do not say whether they allege that the plaintiff was summarily dismissed or resigned or whether his term of employment merely expired. The 'circumstances of the plaintiff's departure from the DAA' are not identified. The plaintiff does not know the case he has to meet. The particular is inadequate.
5. Particular (g) is the matters described in [8(O)] [8(T)], which are particulars of justification, and the statements of Minister Peter Collier and Yuwuru Aboriginal CEO Peter Yu referred to in the article. The particulars (O) to (T) subjoined to [8] refer to the decision of this court in Robinson v Fielding [2015] WASC 108 (Robinson) (in which the court found that the department, through the Aboriginal Cultural Materials Committee had wrongly removed 36 sites from the Aboriginal Heritage site register due, amongst other things, to applying the wrong test under the Aboriginal Heritage Act 1972 (WA)) and the actions or inactions of the DAA subsequent to the decision. Those matters cannot be particulars of the matters relied on to warrant the comment for the purposes of the common law defence of fair comment. For the common law defence to apply, the comment must identify, at least in general terms, what it is that has led the commentator to make the comment, so that the reader can understand what the comment is about: Joseph [104] (Lord Phillips). The article does not indicate, expressly or implicitly, the decision of this court in Robinson and the actions, inactions or neglect of the plaintiff in responding to the decision or its effect.
6. If the defendants wished to maintain those matters as proper material for the purpose of the statutory defence of honest opinion but not the common law defence of fair comment then [10] would have to be reformulated to make that clear.

Defence of fair comment/honest opinion conclusion

1. Paragraph 10 of the defence will be struck out. The defendants will not have leave to replead.

1. In [8] of their defence the defendants plead that the defamatory meaning pleaded by the plaintiff, that the plaintiff was incompetent in his profession as the head of a government department, is true and the defendants rely upon the defence of justification at common law and under s 25 of the Defamation Act.
2. Mr Bennett submits that the particulars of justification do not adequately disclose a reasonable basis for this defence and that many of the particulars are drafted in a manner that conceals the true ambit of the plea.
3. Particulars of justification must satisfy at least three requirements. First, they must be relevant to proving the defamatory meaning pleaded by the plaintiff. Secondly, they must be pleaded with such particularity that the plaintiff knows not merely the general case he has to meet but also the acts, omissions or things attributed to him which it is alleged justify the imputation so that he knows the case against him. Thirdly, the particulars must be sufficient, that is capable of proving the truth of the defamatory meaning sought to be justified.
4. Particular (a) is that the plaintiff's managerial and other duties as Director General and thereby effectively the head of the DAA were those set out in the six subparagraphs which follow. Each subparagraph sets out a duty and then says that the duty 'also arises' from s 9 and s 30 of the Public Sector Management Act 1994 (WA) (the PSM Act). The first, [8(a)(i)] is:

ensuring that codes of ethics and codes of conduct were followed, and to take effective measures to prevent and detect any systematic unethical or unprofessional behaviour within the Department (such duty also arising from sections 9 and 30 of the [PSM Act]).

1. That particular is embarrassing. PSM Act s 9 and s 30 do not impose such a duty on the DirectorGeneral. Section 9 says that all employees are to comply with the provisions of, amongst other things, codes of ethics and any applicable code of conduct. It does not say that the DirectorGeneral is to ensure that others are to comply with those codes. Section 30 says that in performing his functions the Chief Executive Officer shall, amongst other things, comply with codes of ethics and any relevant code of conduct. It does not say that the Chief Executive Officer is to ensure that others are to comply with those codes. I do not say that the pleaded duties were not duties of the Director General. The vice of the pleading is that it says that the pleaded duty arises from the specified statutory provision. The statutory provision says that all employees are to comply with the provisions of, amongst other things, codes of ethics and codes of conduct. It may be that the Director General has a statutory duty, or it is part of his function, to ensure that employees of the department comply with their statutory obligations but neither s 9 nor s 30 of the PSM Act imposes such a duty on the Director General.
2. I will not go through each of the subparagraphs of [8(a)]. It is sufficient to say that the sections of the PSM Act do not impose on the DirectorGeneral the duties asserted in the pleading.
3. Particular (b) is dependent upon particular (a) and therefore should be struck out.
4. Particular (c) is that a competent head of a government department is also expected to provide leadership, strategic direction and focus on results for that organisation (which also arises from s 29(1)(a) of the Act) being matters that, as with the duties described at (a) above should result in reasonable levels of confidence of employees in such leadership and job satisfaction. I do not agree with the plaintiff's objection to the use of the word 'expected'. Further, the matter set out in the first part of the particular might reasonably be seen to arise from s 29(1)(a) of the PSM Act. However, the last part of the particular (being matters that ... should result in reasonable levels of confidence of employees in such leadership and job satisfaction) lacks sufficient clarity and precision.
5. Particulars (d) to (h) concern the staff survey undertaken by the Western Australian Public Sector Commission. Those particulars are relevant and pleaded with sufficient particularity.
6. Particulars (i) to (k) refer to an investigation and report by Mr Bryant and that the plaintiff ceased employment with the DAA following the delivery of Mr Bryant's report. The particulars do not disclose the contents of Mr Bryant's report and do not assert any causal connection between Mr Bryant's report and the plaintiff ceasing employment with the Department. The particulars are not relevant to the defamatory meaning sought to be justified. They should be struck out.
7. Particular (l) is that during his term as Director General of the DAA the plaintiff engaged in a number of practices and interactions with other DAA staff that were inappropriate and constituted incompetent management, the best particulars the defendants can presently provide being those set out in the 14 subparagraphs which follow. The subparagraphs are relevant to proving the pleaded defamatory meaning and are pleaded with sufficient particularity.
8. Particulars (m) and (n) relate to the plaintiff's actions in relation to the Department of Premier and Cabinet. Those particulars are relevant and sufficiently particularised.
9. Particular (o) refers to the decision of this court in Robinson. Particulars (p) to (t) then refer to the DAA's inadequate response to matters requiring reassessment subsequent to the decision. Those particulars are relevant and adequately particularised.
10. Particular (u) is that further particulars will be provided after discovery and subpoena. It is not necessary to deal with that particular at this time beyond observing that the ambit of discovery is confined to the matters in issue on the pleadings.

1. Particulars (a), (b), (c) and (i) to (k) subjoined to [8] of the defence will be struck out. The remaining particulars are sufficient in the sense that they are arguably capable of proving the pleaded defamatory meaning.

1. At [9] of their defence the defendants plead that if the article is defamatory of the plaintiff in the meanings alleged in the statement of claim then the publications were made on an occasion of qualified privilege pursuant to s 30 of the Defamation Act and the equivalent sections in the Defamation Acts in all States and Territories or alternatively at common law. It is pleaded that the publication was made in the course of providing to the recipient, being readers who elected to view a news story concerning the subject matter disclosed in the title to the articles, information upon a subject in which the recipient had an interest or apparent interest or alternatively the publication was made pursuant to a duty or interest in publishing such matter to a recipient with a corresponding interest in receiving it, being readers who elected to view a news story about the subject matter disclosed in the title to the articles. It is further pleaded that the publication related to government and political matters. Particulars are subjoined to [9].
2. The plaintiff objects to this pleading on a number of grounds. First, the subject of the article pleaded in particular (a) is not a proper delineation of the subject of the article. Secondly, the particulars in particular (g) that the defendants' conduct in publishing the article was reasonable sets out matters presented as facts which amount to no more than submissions but are not distinguished as such. Thirdly, the plea in particular (g)(vi) that the defendants were reasonably satisfied about the integrity of the sources of the information in the article and the authenticity of the information provided by those sources is devoid of necessary detail.
3. The form of the defendants' plea of qualified privilege is confusing. In [9] of their defence the defendants put forward three defences of qualified privilege:

(1) the classical common law reciprocal duty and interest privilege;

(2) the extended common law communication on a government or political matter privilege; and

(3) statutory privilege under Defamation Act s 30.

1. The elements of each defence are different. However, the pleading does not differentiate between the elements of each defence and one set of particulars is given of all three defences.
2. The plaintiff does not ask the court to determine in this application whether the readers of the article had a relevant interest and the defendants had a corresponding duty or interest in publishing the article. The plaintiff says that is a matter to be determined at trial.
3. The plaintiff's first challenge is to the defendants pleading of the 'subject of the article'. The identification of the 'subject' is important to the statutory defence, which provides a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

The statutory defence distinguishes between the subject on which the recipient has an interest (or apparent interest) in receiving information; the information on that subject given to the recipient; and the defamatory matter which is published to the recipient in the course of giving that information to the recipient.

1. The subject on which information was given to the recipient in the course of which the defamatory matter was published appears to be pleaded at particular (b) subjoined to [9] of the defence. The subject is pleaded to be:

[T]he Special Measures diversity provisions, and their operation and effect in response to the appointment of persons to high ranking positions in taxpayer funded government departments ('Subject').

The formulation of that 'subject' does not make sense. I assume the words 'in response' are an error and the drafter intended to say 'in relation' or something to that effect.

1. The plaintiff says that the defendants' pleading of the subject is not a proper delineation of the subject of the article. The plaintiff says that the actual (and only) subject of the article was the appointment of an incompetent candidate (the plaintiff) to the position of Executive Director, Central Australia.
2. The question is not whether the subject identified by the defendants is the subject of the article. The question is whether the material defamatory of the plaintiff was published in the course of giving to the recipients information on the subject.
3. I do not have the requisite degree of assurance that a jury could not reasonably find that the material defamatory of the plaintiff was published to the readers of the article in the course of giving to those readers information on the 'subject' identified by the defendants. I will allow the defendants to amend [9] of their defence in accordance with the defendants' minute provided that the words 'in response' are deleted from the description of the 'subject' by words which give the description a sensible meaning.
4. The plaintiff's second objection to the qualified defence pleading is that some of the particulars in particular (g) are presented as facts but are no more than submissions and are not distinguished as such.
5. Particular (g)(i) is that the defendants repeat particulars (a) to (f). That is embarrassing. Particular (a) is that the article was 'related to' the governmental or political matters which are then set out. 'Related to' means being connected either logically or causally or by shared characteristics. It appears the defendants mean something else, but what that is is not clear. Particular (c) is that the readers of the article had an interest or apparent interest in having information on the subject. That is embarrassing. The defendants must plead whether the defendants rely upon the recipients of the publication having an interest, or only an 'apparent' interest, in receiving information on the subject. Further, where an 'apparent' interest in the recipients of the publication is relied upon, the reasonable grounds for the defendants' belief that those recipients had such an interest should be pleaded. Where a ground for the defendants' belief is stated to be their belief that the recipients bore a particular character which would have made the publication to them privileged, the reasonable grounds for that belief should be set out. In establishing that the conduct in publishing the defamatory matter is reasonable, all relevant circumstances have to be considered, so that the context in which the defamatory matter is published, namely, that it is in the course of giving information which falls within s 30(1)(a) must be considered. Thus, the matters generally referred to in particulars (a) to (d) are relevant to whether the conduct of the defendants in publishing the defamatory material was reasonable in the circumstances. However, for the reasons I have given particulars (a), (c) and (d) are embarrassing. Particular (g)(i) should be struck out.
6. Particular (g)(ii) is: 'the defendants took care to distinguish between allegations, suspicions and proven facts'. That appears to be related to Defamation Act s 30(3)(d) which is 'the extent to which the matter published distinguishes between suspicions, allegations and proven facts'. The statutory consideration is the extent to which the matter published distinguishes between those things whereas the particular refers to the extent to which the defendants took care to distinguish between those things. However, the matters listed in Defamation Act s 30(3) that a court may take into account in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances is not an exhaustive list. That the defendants took care to distinguish between allegations, suspicions and proven facts is arguably a matter the court may take into account. However, particular (g)(ii) is devoid of any particularity. It is no more than a reformulation or variant of the statutory criterion without identifying what, if any, parts of the article the defendants are satisfied state allegations or suspicions as distinct from facts. It is not a particular but merely an argument at a high level of generalisation.
7. Particular (g)(vi) is the subject of a separate objection by the plaintiff. I will return to that shortly. Particular (g)(vii) is that the defendants were reasonably satisfied as to the fairness of the language and the manner in which the article was composed. That appears to be little more than rhetoric. Particular (g)(ix) is that Mr Aikman attempted to obtain the personal or business contact details of the plaintiff but because the plaintiff had apparently left the DAA but had not yet formally taken up his position with the Department of the Chief Minister, internet searches failed to disclose any personal or business contact details for the plaintiff. Particular (g)(viii) is that prior to the publication of the article, the second defendant contacted and had communications with the PSC, the Minister for Aboriginal Affairs, DAA and the Department of the Chief Minister in order to provide an opportunity for a response to be provided to the substance of the allegations and the opinions which were published in the article. The Defamation Act s 30(3) provides that in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances a court may take into account the matters set out in s 30(3)(a) (j). Particulars (g)(viii) and (ix) are directed to Defamation Act s 30(3)(h) which is 'whether the matter published contained the substance of the person's side of the story and, if not, whether a reasonable attempt was made by the defendant to obtain and publish a response from the person'. Particulars (g)(viii) and (ix) address the attempts made by the defendants to obtain and publish a response from the plaintiff. The adequacy of that attempt is a matter for trial.
8. The plaintiff's third objection is to particular (g)(vi) which is:

The defendants were reasonably satisfied about the integrity of the sources of the information in the article and the authenticity of the information provided by those sources.

1. Defamation Act s 30(3) provides that in determining whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances the court may take into account, amongst other things, the sources of the information in the matter published and the integrity of those sources. The statutory consideration is 'the sources of the information' and 'the integrity of those sources', not the defendants' satisfaction about the integrity of the sources or the authenticity of the information provided by those sources. The plea does not address the statutory criterion. The particular does not identify the sources of the information nor the facts, matters and things relied upon by the defendants to establish the integrity of those sources. It is not a particular but merely an argument at too high a level of generalisation. The particular will be struck out.
2. Particular (g) subjoined to [9] of the defence is embarrassing. It will be struck out.

1. Particular (g) subjoined to [9] will be struck out.

Paragraph 17 - justification of tweet publication

1. The defendants' particulars of justification repeat the particulars of justification given under [8] of their defence. I have determined that particulars (a), (b), (c) and (i) to (k) subjoined to [8] will be struck out and hence those particulars will, in effect, be struck out of the particulars of justification under [17].

1. The pleading essentially reproduces the qualified privilege defence in [9] and repeats the particulars to [9]. I have determined that particular (g) subjoined to [9] will be struck out and hence those particulars will, in effect, be struck out of the particulars to [18].

Paragraph 19 - honest opinion/fair comment (tweet)

1. This paragraph will be struck out for the same reasons that the defence of honest opinion/fair comment in [10] is struck out.

Paragraph 27 - qualified privilege (Facebook post)

1. This defence repeats the defence of qualified privilege pleaded at [9] of the defence. I have determined that particular (g) subjoined to [9] should be struck out and hence those particulars will, in effect, be struck out of the particulars to [27].

Paragraph 28 - honest opinion/fair comment (Facebook post)

1. This defence repeats the honest opinion/fair comment defence pleaded at [10] and will be struck out for the same reasons.

1. At [40] the defendants plead that if the plaintiff suffered any damage as a result of the publications complained of then the defendants intend to rely upon the following facts and matters in mitigation of such damage:

(a) the substantial truth of the imputation alleged in the statement of claim; and

(b) the facts, matters and circumstances proven in evidence in support of the defences pleaded above.

1. The plaintiff says that plea is so devoid of detail that the plaintiff does not know the case he has to meet. The plaintiff referred to the criticism of the plurality in Forrest v Australian Securities and Investments Commission [2012] HCA 39; (2012) 247 CLR 486:

The task of the pleader is to allege the facts said to constitute a cause of action or causes of action supporting the claims for relief. Sometimes that task may require facts or characterisation of facts to be pleaded in the alternative. It does not extend to planting a forest of forensic contingencies and awaiting until final address or perhaps even an appeal hearing to map a path through it [27].

1. The plaintiff says that the defendant has effectively planted a forest of forensic contingencies by relying on matters that may eventually be proven in evidence rather than stating the facts they seek to prove. The plaintiff says that if [40(b)] is allowed to stand, the plaintiff would not be able to frame an argument in respect of the mitigation plea until after evidentiary findings are made at trial. I do not agree. The plaintiff knows that the matters which will be relied upon by the defendants in mitigation of damages are the facts pleaded in support of its defences of justification, qualified privilege and triviality.

1. The defendants have not formally amended their defence in accordance with the defendants' minute. Nevertheless, the application was argued on the basis that the defence put forward by the defendants is that in the defendants' minute. The most convenient course is to strike out those paragraphs of the defendants' defence of 2 February 2018 that I have determined should be struck out and give leave to replead except that the defendants will not have leave to replead the defences of fair comment and honest opinion.
2. The following paragraphs of the defence will be struck out: particulars (a), (b), (c) and (i) to (k) subjoined to [8]; particular (g) subjoined to [9]; [10], [19] and [28]. The effect of striking out particulars to [8] and [9] will have the effect that to the extent that those particulars are repeated as particulars to [17], [18] and [27] those particulars will be struck out. The defendants will have leave to replead except that they may not replead the defences of fair comment and honest opinion.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.