Archer v Channel Seven Perth Pty Ltd - [2002] WASC 160

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ARCHER -v- CHANNEL SEVEN PERTH PTY LTD [2002] WASC 160

CORAM: HASLUCK J

HEARD: 13 JUNE 2002

DELIVERED : 21 JUNE 2002

FILE NO/S: CIV 1271 of 2001

BETWEEN: STEPHEN JOHN ARCHER
Plaintiff
AND
CHANNEL SEVEN PERTH PTY LTD (ACN 008 679 294)
Defendant

Catchwords:

Defamation - Application to strike out defence - Adequacy of justification plea - Fair comment and qualified privilege - Turns on own facts

Legislation:

Rules of the Supreme Court, O 20 r 19, O 20 r 13A

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff: Mr P A Tottle
Defendant: Mr R L Le Miere QC

Solicitors:

Plaintiff: Tottle Christensen
Defendant: Freehills

Case(s) referred to in judgment(s):

Adam v Ward [1917] AC 309
Anderson v Nationwide News Pty Ltd [2001] VSC 335
Archer v Channel Seven Perth Pty Ltd [2001] WASC 195
Bristile Ltd v The Buddhist Society of Western Australia Inc (2000) A Tort Rep 81‑548
Cock v Hughes [2002] WASC 108
Gaston v United Newspapers Ltd (1915) 32 TLR 143
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Godman v Times Publishing Company Ltd [1926] 2 KB 273
Guise v Kouvelis (1947) 74 CLR 102
Kemsley v Foot [1952] AC 345
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lionetti v Romeo, unreported; SCt of WA; (Anderson J); Library No 960737; 19 December 1996
Millington v Loring (1880) 6 QBD 190
Moir v Flint [2002] WASC 48
O'Shaughnessy v Mirror Newspapers Ltd (1970) 125 CLR 166
Pervan v North Queensland Newspaper Co Ltd (1993) 178 CLR 309
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279
Speidel v Plato Films Ltd [1961] AC 1090 at 1104
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632

Case(s) also cited:

Inkhorn Pty Ltd v Herbert [2000] WASCA 333
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASC 95

HASLUCK J: This is an application by the plaintiff in a defamation case to strike out certain paragraphs of the statement of defence on the grounds that no reasonable defence is disclosed or, alternatively, that the paragraphs in question will prejudice, embarrass or delay the fair trial of the action.

The Pleadings

The plaintiff, Stephen John Archer, is a legal practitioner. I understand from the pleadings that he was admitted as a solicitor in New South Wales in June 1971 and has practised exclusively as a barrister in that State from September 1980. He was admitted as a barrister and solicitor in Western Australia in June 1985 and thereafter practised exclusively as a barrister in Western Australia.
The plaintiff says that the defendant, Channel Seven Perth Pty Ltd, is the licensee of the Perth television station known…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] WASC 160
Decision Date

CaseChat Overview and Summary

In Archer v Channel Seven Perth Pty Ltd, the plaintiff, a barrister, sought to recover damages for defamation arising from a television broadcast by the defendant. The broadcast implicated the plaintiff in a sensational scheme to avoid paying income tax. The Federal Court was tasked with determining whether the defendant's broadcast was protected under the doctrine of qualified privilege, specifically as it pertains to discussions on government or political matters, as established in Lange v Australian Broadcasting Corporation.

The central legal issue before the court was whether the defendant's broadcast was protected by qualified privilege under the Lange decision, and if so, whether the defence criteria were met. The plaintiff argued that the broadcast did not concern a genuine political or government matter and that its primary purpose was to shame the plaintiff into paying taxes. The court needed to assess whether the broadcast fell within the ambit of matters concerning public functions and powers, specifically in relation to income tax administration, and if the defendant had reasonable grounds to believe the information was true.

The court found that the broadcast could arguably be seen as relevant to the public's interest in matters concerning the administration of income tax laws, which are a public function. This reasoning aligns with the broader interpretation of public interest matters as articulated in Lange and Bristile Ltd v The Buddhist Society of Western Australia Inc. The court held that the defence of qualified privilege was potentially applicable, as the broadcast concerned the exercise of public functions and powers, which the public has a legitimate interest in receiving information about. The court concluded that the broadcast could be protected under the Lange defence if the defendant could establish the necessary conditions, such as having reasonable grounds to believe the information was true.

The court did not dismiss the plaintiff's claim outright but indicated that the defence of qualified privilege might apply, contingent upon the defendant proving the requisite elements. The decision underscores the importance of the public's interest in government and political matters, as well as the necessity for broadcasters to substantiate their claims with reasonable grounds for truth.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

It is well-known that the decision of the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 marked out an extension to the defence of qualified privilege in regard to political discussion. The categories of qualified privilege must now be recognized as protecting a communication made to the public on a government or political matter. A publisher relying on that category of qualified privilege must establish that its conduct in making the publication was reasonable in all the circumstances. As a general rule, a defendant's conduct in publishing defamatory material will not be regarded as reasonable under the Lange defence unless the defendant had reasonable grounds for believing the defamatory imputation was true, took proper steps so far as they were reasonably open to verify the accuracy of the material, and did not believe the imputation to be untrue. Consistently with the general rules concerning qualified privilege, the Lange defence will be defeated if the plaintiff proves that the publication was actuated by ill-will or other improper motive. The plaintiff submits that it is essential that there be a statement of the government or political matter in relation to which it is contended the matter complained of was published. Counsel for the plaintiff acknowledged that such a statement purports to be made in par 6(b) of the defence in which it is said, inter alia, that the discussion related to matters concerning the administration of Australia's income tax laws. However, the plaintiff submits that the matter complained of is an attack in sensational terms upon the plaintiff and other barristers and is not of and concerning a genuine political or government matter. The plaintiff submits further that the last portion of the matter complained of sets out the purpose of the publication, namely, to shame the persons named into paying taxes by being named. Such a purpose is plainly not the communication of government or political information or ideas and the paragraphs ought to be struck out on this discrete ground. The nature of the Lange defence was addressed in Bristile Ltd v The Buddhist Society of Western Australia Inc (2000) A Tort Rep 81‑548. In that case it was held that an arguable defence had been raised because the letter in question was arguably relevant to the exercise by the Minister for the Environment of her public functions and powers, being a matter in which the general public has a legitimate interest in receiving information about. I am of the view, in the present case, that reasoning of a similar kind applies to the circumstances of the present case. This is a case in which it can arguably be said that the general public has a legitimate interest in receiving information concerning matters relevant to the exercise of public functions and powers vested in officials charged with the responsibility of administering income tax. The article includes reference to the laws being "toughened". The High Court made it clear in Lange that a narrow view should not be taken of the matters about which the general public has an interest in receiving information about.