Cock & Anor v Hughes & Ors [2001] WASC 24

Emerson v Walker [1999] WASC 265

1 MASTER NEWNES: This is an application by the defendant to strike out various parts of the statement of claim as disclosing no reasonable cause of action or as likely to prejudice, embarrass or delay the fair trial of the action. The defendant's principal attack was on the two defamatory imputations that the plaintiff says were conveyed by the words complained of. The defendant submitted that neither of the imputations is capable of arising.

2 In the statement of claim the plaintiff pleads that, on 17 October 2003, the defendant published in The West Australian newspaper the following article:

"ALP links pivotal in Attorney-Generals power plays

WHY MCGINTY OWED ONE TO NEW FOI CHIEF

Attorney-General Jim McGinty is being a bit cheeky when he says he has no political reasons to appoint 44 year-old lawyer Darryl Wookey to the position of Freedom of Information commissioner.

After all, it was Ms Wookey and her failed run at Labor pre-selection for the State seat of Ballajura in 1999 which ultimately saw Mr McGinty rise to his current position as the party's pre-eminent powerbroker.

Back in 1999 many believe that position belonged to former Labor premier Brian Burke, who despite his fall from grace and a stint in jail in the mid-1990s was the major influence on the party's dominant right-wing faction.

Mr Burke was determined that his old seat of Balga, which by then had gone through several boundary and name changes to emerge as Ballajura, would not go to Bayswater mayor John D'Orazio at the 2001 State elections.

But Mr Burke's successor in the seat, the retiring Ted Cunningham was solidly behind Mr D'Orazio and resented the fact that Mr Burke, once his closest political ally, was using his influence to get the untried Ms Wookey up as the nominated candidate.

Mr Burke's reasons for backing Ms Wookey were not clear at the time. He told party insiders that she was 'more competent' than Mr D'Orazio and certainly he had first-hand experience of her abilities. Mr Burke met Ms Wookey when she was part of the legal team from Kott Gunning which represented the former ambassador to Ireland and the Holy See at the 1991 WA Inc royal commission.

Leading that team was current Innaloo Labor MLA John Quigley, who later had a three-year relationship with Ms Wookey.

After the royal commission, Ms Wookey left Kott Gunning to become the principal policy officer for another of Mr Burke's close friends, the then Lawrence government police minister Graham Edwards, now the MHR for Cowan.

Yesterday, Mr McGinty let slip to reporters that Ms Wookey had worked for the National Party police minister Bob Wiese, but this time he really was being too cute by half.

When the Lawrence government was defeated in February 1993, Ms Wookey remained briefly as Mr Wiese's principal policy officer, but soon left to become the Freedom of Information commissioner's principal legal officer.

Ms Wookey's connections were in the Labor Party, not the National Party, and she joined the ALP in order to contest the Ballajura preselection in 1999. It was a bruising contest, literally and figuratively.

Mr Burke and Mr Cunningham had been extremely close. Mr Cunningham, now gravely ill, is godfather to Mr Burke's lawyer daughter Sara, herself an aspiring politician.

But Mr Burke made a rare miscalculation in thinking that Mr Cunningham would simply move aside for his candidate. If he had to go, it would be for someone of his own choosing.

At that time, the right, bolstered by the powerful Shops Distributive and Allied Employees Union, and with support from the party's centre faction, could outvote the left.

But the preselection battle for Ballajura split the dominant right faction down the middle, with Mr Cunningham and other leading lights, notably current Police Minister and party president Michelle Roberts, forming the new right.

The new right faction then struck an alliance with the left, led by Mr McGinty, to outvote the old right and the centre, and ensure that Mr D'Orazio and not Ms Wookey got the nod for Ballajura.

After the preselection meeting at the party's then Beaufort Street headquarters, tempers were running high. Out in the street, Mr Cunningham was flattened by TWU secretary Jim McGiveron, a leading member of the centre faction.

The Wookey-D'Orazio preselection battle resulted in a seismic shift in the WA ALP's power bases. The new right-left alliance survives to this day and dominates the old right-centre in key party forums.

In that sense, Mr McGinty owes Ms Wookey a great deal."

3 It is pleaded in par 4 of the statement of claim that in their natural and ordinary meaning the words conveyed the following imputations:

"4.1 the Plaintiff's appointment as Acting Information Commissioner pursuant to the Freedom of Information Act 1992 had been achieved by political favour rather than merit.

4.2 the Plaintiff's qualifications and experience were insufficient to merit her appointment as Information Commissioner."

4 The principles to be applied on an application of this sort are relatively well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342, at 346; Taylor v Jecks (1993) 10 WAR 309, at 319.

5 The principles to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of were discussed in the well-known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371:

"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:

'The test, according to the authorities, 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 of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."

6 The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234, Lord Reid said at 258:

"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."

In that case, Lord Devlin said:

"When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury ... it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire ..."

7 Moreover, as Holroyd Pearce LJ said in the Court of Appeal in the same case, reported at [1963] 1 QB 340 at 374:

"When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean"

8 There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices. In that respect, Mason J said in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293, at 301:

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on their own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition."

9 In the case of a newspaper article, the ordinary reasonable reader is taken to have read the whole article, not just the headlines or the portions complained of: Charleston v News Group Newspapers [1995] UKHL 6; [1995] 2 AC 65; Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440.

10 The plaintiff must plead each separate meaning it is contended a reasonable reader would infer from the words complained of. Distinct meanings must be pleaded and it is embarrassing to plead the same substantive meaning in different terms. The test of distinctness is whether the evidence required to justify each meaning would be substantially different: Taylor v Jecks (supra) at 319 - 320.

11 The defendant submitted that any imputation that the plaintiff was appointed as a result of a political favour rather than merit was not open on a fair reading of the article. Senior Counsel for the defendant submitted that the article does not refer to any connection between the plaintiff and Mr McGinty which might have led Mr McGinty to do the plaintiff any political favours. On the contrary, according to the article it was a faction led by Mr McGinty that ensured that Mr D'Orazio, not the plaintiff, gained preselection for the seat of Ballajura. Counsel pointed to the penultimate paragraph of the article in which it is stated that the preselection battle resulted in a "seismic shift" in the power bases in the ALP in Western Australia and that as a result the alliance with which Mr McGinty was associated had since become dominant in key party forums.

12 Senior Counsel argued that it was clear from the final paragraph that the article simply meant it was ironic that the person who appointed the plaintiff as Commissioner had come to a position of political pre-eminence as a result of defeating the plaintiff's candidature for the seat of Ballajura in a factional battle. A reasonable reader would understand the article as being "tongue in cheek". There was no suggestion that the appointment was motivated by political favour.

13 It was submitted by Senior Counsel for the defendant that the imputation in par 4.2 was not different in substance to that in par 4.1 in that both referred to appointment on a basis other than merit. It was also submitted that it was apparent from the reference in the article to the plaintiff's legal qualifications and her previous appointment as principal legal officer to the Freedom of Information Commissioner that the plaintiff was qualified for the position. No reasonable reader could conclude otherwise on a fair reading of the article.

14 Counsel for the plaintiff, whilst accepting that the headlines could not be read in isolation, submitted that the article had to be read in the context of the headlines, which gave a flavour to the article as a whole. He referred to Charleston v News Group Newspapers (supra), at 72, where Lord Bridge said:

"Whether the text of a newspaper article will, in any particular case, be sufficient to neutralise the defamatory implications of a prominent headline will sometimes be a nicely balanced question for the jury to decide and will depend not only on the nature of the libel which the headline conveys and the language of the text relied on to neutralise it but also on the manner in which the whole of the relevant matter is set out and presented."

15 Similar views have been expressed by the High Court in John Fairfax Publications Pty Ltd v Rivkin [2003] HCA 50; (2003) 201 ALR 77. In that case, McHugh J observed [at 83] that the reasonable reader considers the context as well as the words alleged to be defamatory, and the bane and the antidote in a publication must be taken together. "But this does not mean that the reasonable reader does or must give equal weight to every part of the publication. The emphasis that the publisher supplies by inserting conspicuous headlines, headings and captions is a legitimate matter that readers do and are entitled to take into account. Contrary statements in an article do not automatically negate the effect of other defamatory statements in the article." Callinan J (with whom Gleeson CJ agreed) said [at 130]:

"It is true that an article has to be read as a whole. But that does not mean that matters that have been emphasised should be treated as if they have only the same impact or significance as matters which are treated differently. A headlines, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter."

16 Counsel submitted that the defamatory meanings pleaded were clearly open. He argued that the headlines plainly asserted cronyism. The opening paragraph of the article suggested that Mr McGinty was being disingenuous in saying that he did not have political reasons to appoint the plaintiff. The article referred to Mr McGinty's comment that the plaintiff had worked for a National Party minister as "too cute by half" and went on to stress that the plaintiff's connections were in the Labor Party. The whole thrust of the article was to emphasise the plaintiff's connection with the Labor Party and prominent members in it. It was clearly capable of being understood to mean that the plaintiff owed her appointment to her association with the Labor Party and not simply to her own professional merits.

17 It is important to bear in mind that on an application of this sort the question is not what the words mean, but whether it is arguable that a reasonable reader would understand the words complained of to bear the meaning pleaded by the plaintiff. As the authorities make plain, such a reader does not read the words in an analytical way and there may be room for variations of reasonable opinion on what the words mean. The meaning a reader gives to a newspaper article may be affected by matters such as the order in which things are dealt with, the language employed, the emphasis which is given to different aspects of it and the headlines which are used: John Fairfax Publications Pty Ltd v Rivkin (supra) per Callinan J at 130. It is therefore necessary to approach the exercise of determining whether the imputations are arguably capable of being conveyed with appropriate circumspection. There is, with respect, much to be said for the view that it is "an exercise in generosity, not parsimony": Berezovsky v Forbes Inc [2001] EWCA Civ 1211 at [16].

18 In my view, taken as a whole, including the headlines, the article is arguably capable of conveying the imputation pleaded in par 4.1. The article specifically asserts, and a reader may consider gives some emphasis to the assertion, that the plaintiff's political connections are in the Labor Party. Any suggestions to the contrary are expressly dismissed. Although a reasonable reader would understand that at the time the plaintiff sought endorsement for the seat of Ballajura she was associated with a different faction of the Labor Party to that of Mr McGinty, it is, I think, rather an overstatement to suggest that a reasonable reader would view the plaintiff, as the defendant's counsel submitted, as a political opponent of Mr McGinty.

19 The headlines and the first paragraph of the article are capable of being understood as suggesting that Mr McGinty had political reasons to appoint the plaintiff and, as with the last paragraph, that he owed the plaintiff a favour. I do not accept, as was argued on behalf of the defendant, that the effect of the final paragraph of the article, in particular, is to make it plain beyond doubt to a reader that the article is simply tongue in cheek and that there can be no suggestion the plaintiff's appointment had anything to do with her links with the Labor Party. The assertion that the plaintiff's bid for preselection was defeated as a result of a factional battle that saw Mr McGinty's faction achieve ascendancy in the Labor Party is not necessarily and obviously inconsistent with a suggestion that Mr McGinty owed the plaintiff a favour, but is arguably capable of being understood as the reason it is suggested that Mr McGinty owed the plaintiff a favour.

20 I do not therefore consider that the imputation pleaded in par 4.1 is unarguable and accordingly would not strike it out.

21 The plaintiff's counsel submitted that the imputation in par 4.2 is distinct from the imputation in par 4.1. The imputation in par 4.1 is that the decision was made on the basis of political favour regardless of merit, whereas the imputation in par 4.2 is that the plaintiff did not have the qualifications and experience to merit her appointment. The latter was conveyed by the article and was defamatory of the plaintiff.

22 In my view, it is not unarguable that a reasonable reader would understand the article to mean that the plaintiff's qualifications and experience were insufficient to merit her appointment. Such an imputation is in my view sufficiently distinct from the imputation in par 4.1. To say that a person was appointed as a result of political favour is not necessarily to say that their qualifications and experience were insufficient to warrant appointment.

23 The defendant also sought to have par 6.2.3 struck out. That plea is part of the plaintiff's plea that the publication was unreasonable, unjustified and lacking in bona fides in a manner which entitled the plaintiff to aggravated damages. The relevant part is as follows:

"6. The Defendant's publication of the Article was made in circumstances where:

...

6.2 the Article was prepared carelessly and without regard for its factual accuracy in that:

...

6.2.3 the Article erroneously suggested that the Plaintiff was appointed to the position of Principal Policy Officer for Mr Graham Edwards at the behest of the former premier Mr Brian Burke;"

24 The defendant argued that the inference that the plaintiff was appointed to her position at the behest of Mr Burke is not open on a reasonable reading of the article.

25 I would not be prepared to strike out the plea at this stage. In my view, it is arguable, given the references to Mr Burke using his influence to get the plaintiff selected as a candidate for Ballajura, the references to his previous dealings with her as one of his legal representatives at the 1991 Royal Commission and the reference to the plaintiff's subsequent appointment as Principal Policy Officer "for another of Mr Burke's close friends", Mr Graham Edwards.