Armstrong v McIntosh
[2018] WASC 364
•27 NOVEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ARMSTRONG -v- MCINTOSH [2018] WASC 364
CORAM: LE MIERE J
HEARD: 29 OCTOBER 2018
DELIVERED : 27 NOVEMBER 2018
FILE NO/S: CIV 1120 of 2018
BETWEEN: PAUL ANDREW ARMSTRONG
First Plaintiff
REBECCA LAURIE MCINTOSH
Second Plaintiff
AND
GREGORY MCINTOSH
Defendant
Catchwords:
Procedure - Pleadings - Application to strike out paragraphs of defence - Whether reasonable defence is disclosed - Whether likely to prejudice, embarrass or delay fair trial - Waiver of O 59 r 9(1)
Defamation - Defences - Triviality - Qualified privilege - Justification - Whether particulars pleaded are adequate to support defence
Legislation:
Defamation Act 2005 (WA), s 30
Rules of the Supreme Court (WA), O 4A r 5A, O 59 r 9, O 67A r 3
Result:
Requirement under O 59 r 9(1) is waived
Defence struck out in part
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr M C Goldblatt |
| Second Plaintiff | : | No appearance |
| Defendant | : | Mr N D C Dillon |
Solicitors:
| First Plaintiff | : | Carmel Galati |
| Second Plaintiff | : | No appearance |
| Defendant | : | Hager Grubb & Partners Lawyers |
Case(s) referred to in decision(s):
Adam v Ward [1917] AC 309
Aktas v Westpac Banking Corporation (2010) 241 CLR 79
Andrews v Wilson [1845] 5 Kerr NBR 86
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366
Craib v Craib [2018] WASC 112
Guise v Kouvelis (1947) 74 CLR 102
Hebditch v MacIlwaine [1894] 2 QB 54
Henwood v Harrison (1872) LR7CP 606
Holmes a Court v Papaconstuntinos [2011] NSWCA 59
Moit v Bristow [2005] NSWCA 322
Smith v Lucht [2017] 2 Qd R 489
Smith v Marshall [No 2] [2015] WASC 62
Toogood v Spyring (1834) 149 ER 1044
Turner (otherwise Robertson) v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449
LE MIERE J:
Summary
The second plaintiff was at all material times the estranged wife of the defendant. The first plaintiff is the brother of the second plaintiff. The first plaintiff was supporting his sister, the second plaintiff, in negotiations between the second plaintiff and the defendant regarding their marriage separation.
The plaintiffs have filed a statement of claim in which the first plaintiff complains of allegedly defamatory publications by the defendant. The defendant has filed a defence in which he admits all but one of the publications, denies they give rise to the imputations pleaded by the first plaintiff and pleads affirmative defences of common law and statutory qualified privilege, justification and triviality.
The first plaintiff has applied to strike out paragraphs of the defence on the grounds that they disclose no reasonable defence or they may prejudice, embarrass or delay the fair trial of the action. The defendant submits that the first plaintiff's application should be summarily dismissed for non‑compliance with O 59 r 9 of the Rules of the Supreme Court 1971 (WA) (RSC), which requires the parties to confer before making an application in chambers. If the first plaintiff's application is not summarily dismissed, the defendant resists the first defendant's strike out application on its merits.
The second plaintiff makes no claim in the statement of claim. She has taken no part in this application. Counsel for the first plaintiff said that the second plaintiff intends to discontinue her action against the defendant. For convenience, I will refer to the first plaintiff as the plaintiff and the second plaintiff as Ms McIntosh.
For the reasons which follow the following paragraphs of the defence should be struck out: [3.2], [4.2.1], [4.2.2], particulars (b) and (d) to [4.2.3], [5.2.1], [5.2.2], particulars (b) and (d) to [5.2.3], [6.2], [7.2], [7.3.1], [7.3.2], the particulars to [7.3.3], [9.2], [9.3.1], [9.3.2], the particulars to [9.3.3], [10.2], [10.3.1], [10.3.2], the particulars to [10.3.3], [12.2.1], [12.3.1], [12.3.2], the particulars to [12.3.3].
Order 59 r 9 applies to this application
The first issue is whether RSC O 59 r 9 applies to this application in a matter in the CMC list. Order 59 r 9 provides:
(1)No order shall be made on an application in chambers unless the application was filed with a memorandum stating ‑
(a)that the parties have conferred to try to resolve the matters giving rise to the application; and
(b)the matters that remain in issue between the parties.
(2)The Court may waive the operation of subrule (1) in a case of urgency or for other good reason.
RSC O 4A r 5A provides that party requests to make case management directions and interlocutory orders are to be by way of letter addressed to the case manager, unless the request is made orally during a case management conference or hearing or the request is made by way of summons or motion, because although not otherwise required, formal process is justified by the circumstances of the particular case or the nature of the request or the application is required to be made under a prescribed form. An application to strike out a pleading is an application for an interlocutory order and should be made by letter. It is the practice in the CMC list that such an application may be made by minute of proposed orders filed and served on the other party. Such an application is nevertheless 'an application in chambers' to which RSC O 59 r 9 applies.
Counsel for the plaintiff referred me to Smith v Marshall [No 2] [2015] WASC 62 where Kenneth Martin J rejected a submission that an application by a defendant to strike out defamatory imputations pleaded in a statement of claim must be commenced by chamber summons. His Honour said nothing about whether RSC O 59 r 9 applies to a strike out application in a matter in the CMC list.
The plaintiff's solicitor was not able to file an RSC O 59 r 9(2) memorandum electronically using the court's electronic document system (EDS) because the EDS did not permit the document to be presented. In that circumstance RSC O 67A r 3(2) provides that the party may present the memorandum to the court by emailing it.
Operation of RSC O 59 r 9(1) is waived
The plaintiff has applied for an order under RSC O 59 r 9(2) that the court waive the operation of RSC O 59 r 9(1). It is necessary to briefly refer to the history of matters leading up to this application. The defence in this matter was served on 21 March 2018. The solicitor for the plaintiff, Ms Galati, wrote to the defendant's solicitors by way of conferral pursuant to RSC O 59 r 9 regarding deficiencies in the defence. That was followed by further correspondence. An amended defence was served on 28 May 2018. On 19 June 2018 Ms Galati sent a conferral letter which outlined alleged deficiencies in the pleading of the defences of triviality and justification in the amended defence. On 27 June 2018 the defendant's solicitor wrote to Ms Galati setting out the defendant's response to the plaintiffs' objections to the pleaded defences and stated:
Please contact us should there be a need for any further conferral.
On 3 July 2018 the parties filed a memorandum of consent orders providing, amongst other things:
The time for the first plaintiff to comply with O 1 of the orders made by the Honourable Justice Le Miere on 21 March 2018 (any application to strike out the defence be filed within 14 days of these orders) be extended until 10 July 2018.
On 8 July 2018 the plaintiff filed his application to strike out paragraphs of the amended defence. On 27 July 2018 the parties filed a memorandum of consent orders consenting, amongst other things, to a time table for the filing of affidavits and submissions in relation to the plaintiffs' application to strike out the defence and that the strike out application be listed for hearing on a date to be fixed.
Having regard to the correspondence between the parties, the consent orders for the plaintiff to apply to strike out the defence and the directions made for the hearing of the strike out application, it is surprising that the defendant has applied for the summary dismissal of the plaintiffs' strike out application on the ground that the plaintiffs have not complied with RSC O 59 r 9.
There is good reason to waive the operation of RSC O 59 r 9(1) and I will do so. It is only necessary to set out my reasons for doing so in a summary manner. First, there has been written conferral between the parties. Secondly, I am satisfied that the parties will not resolve the issues raised by the strike out application between themselves, the matters raised by the application are really in dispute and the parties appreciate what the issues in dispute are. In short, no purpose would be served by further conferral. Thirdly, there is substance to the plaintiffs' objections. Fourthly, the defendant's conduct in consenting to the orders to which I have referred is inconsistent with applying for summary dismissal of the plaintiffs' application on the grounds of non‑compliance with RSC O 59 r 9(1). Fifthly, the efficient and expeditious resolution of this action will be facilitated by resolving the pleading issues before discovery and the preparation of witness statements. Even more so, the efficient conduct of the trial will be facilitated by the resolution of the pleading disputes before trial.
The pleadings
The plaintiff complains of five publications between 30 January 2017 and 3 July 2017. The second matter complained of is that the defendant spoke the words alleged to Father Smith, the parish priest at the parish of Our Lady of Grace, North Beach. The plaintiff regularly attends Our Lady of Grace church. The other four matters complained of are text messages from the defendant to Simon Quayle. The defendant says that Mr Quayle was his personal friend, confidant and advisor in relation to his separation from Ms McIntosh and is also a friend of Ms McIntosh.
The defendant admits each of the publications complained of except that he denies speaking the alleged words to Father Smith which constitutes the second matter complained of.
In relation to each of the matters complained of, the defendant denies the imputations said to arise from them and pleads that each of the matters complained of (including the second matter if it is proved) were published on an occasion of qualified privilege at common law, or alternatively on an occasion of qualified privilege under s 30 of the Defamation Act 2005 (WA). The defendant also pleads that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm as a result (the defence of triviality). In relation to the third, fourth and fifth matters complained of the defendant also pleads justification.
It is convenient to consider the plaintiffs challenge to the pleaded defences in the order in which the matters complained of are pleaded.
First matter complained of
The first matter complained of is a text from the plaintiff to Mr Quayle:
Really wish you could have witnessed some conversations over the past couple of weeks so you could see the real picture on a few things.
There's so much I'd love to be able to share with you so you'd see that I'm actually a nice person.
I've had some options that would have really been to my benefit which I've elected not to take so that Bec doesn't suffer.
I'd so love for you to see that.
I don't expect any thanks or any acknowledgement from her or her family. They'll probably still paint me as a villain. Frankly, I don't care what they think or say anymore. But I can hold my head high with dignity, and that's something they certainly can't do after the way they've dealt with all of this. Even the father of their church is extremely disappointed in them. I've been talking with him regularly since they turned on me, and he's helped to understand the reasons why seemingly nice people can turn evil and think they are justified in doing so.
It'll all be over soon. Thank god this chapter is closing I don't wish them any harm but the whole Armstrong family means nothing to me anymore. I hope to never ever have anything more to do with any of them.
I'm a good person. I'll stay a good person and I'll always do the right thing.
The plaintiff says that in its natural and ordinary meaning the first matter complained means that the first plaintiff is an evil person. Further, the plaintiff says, by way of innuendo, the words mean that the plaintiff has acted in such an unchristian manner that his parish priest thinks ill of him.
Defence [4.2.1]: first matter complained of - defence of qualified privilege at common law
The defendant pleads in [4.2.1] that the words were published on an occasion of qualified privilege at common law. The defendant gives particulars. The particulars are complex and difficult to follow. The particulars are set out in nine paragraphs, two of which include subparagraphs:
(a)The matters pleaded and the particulars to subparagraph 3.2 above are repeated.
(b)In addition to being a friend of the Defendant, Mr Quayle is a friend of the Second Plaintiff and was in contact with her at around 30 January 2017.
(c)Mr Quayle had prior to 30 January conferred with the Second Plaintiff in relation to the separation and or was made aware of the Second Plaintiff's position on the separation and the negotiations to reach a settlement through Mr Quayle conferring with his wife, Mrs Norelle Quayle, who was a confidant of the Second Plaintiff.
(d)At a date prior to 30 January the Defendant had made an offer to the Second Plaintiff to reach and conclude a financial settlement as part of their agreement to separate.
(e)At a date prior to 30 January the Defendant had been told by his father that he had been contacted by the First and Second Plaintiff's father, Mr Peter Armstrong, who advised the Defendant's father that the Armstrong family considered the amount the Defendant, as part of the terMs of a settlement, was offering to the Second Defendant was inadequate and in explaining why the Armstrong family took that position understated (and by doing so misrepresented) the amount then being offered by the Defendant.
(f)The purpose of Mr Peter Armstrong contacting the Defendant's father was to have the Defendant's father contact the Defendant to pressure the Defendant to increase the amount of financial settlement being offered.
(g)The Defendant:
A.from his conferrals with Mr Peter Armstrong during his marriage to the Second Plaintiff knew Mr Peter Armstrong attended the Church where Father Richard Smith presided;
B.sought guidance from Father Smith regarding how he may approach negotiations with the Armstrong family (the First Plaintiff, Second Plaintiff and Mr Peter Armstrong) in order to reach, in the best interests of all parties, a fair and peaceful settlement of the separation with the Second Plaintiff.
(h)Further in the premises, it was in the Defendant's interests:
i.to keep Mr Quayle informed of matters such as the understatement (and misrepresentation thereof) of the settlement proposal and other relevant parties' views as communicated to the Defendant relevant to the separation;
ii.to defend himself from the publication of words to the effect that he had only made a low or inadequate offer of settlement.
(i)Further, in the premises of the matters pleaded in subparagraph 3.2 herein Mr Quayle had a reciprocal interest in being informed as particularised in the preceding subparagraph.
Paragraph 3.2 and the particulars subjoined to that subparagraph are:
3.2.1Mr Quayle was a personal friend of the Defendant of 30 years standing;
3.2.2.Mr Quayle was a confidant and advisor in relation to circumstances relating to the Defendant's separation from his wife, the Second Plaintiff;
3.2.3.in the premises pleaded in the preceding two subparagraphs the Defendant had an interest in ensuring Mr Quayle was informed of or accurately informed of circumstances related to the said separation.
PARTICULARS
(a)The following particulars are provided in relation to the relationship between Mr Quayle and the Defendant.
i.Mr Quayle and the Defendant first met in January 1988 when they were 18 and 17 years of age respectively.
ii.Mr Quayle was asked by the Defendant, agreed and acted as a groomsman at the wedding of the Second Plaintiff and the Defendant on 31 August 2014.
iii.Mr Quayle and the Defendant have remained friends from 1988 to date (30 years).
(b)The following particulars are provided in relation to Mr Quayle acting as a confidant.
i.Over their 30 years friendship Mr Quayle and the Defendant have confided in and provided advice to each other on a broad range of topics including relationships.
ii.From at least October 2016 Mr Quayle provided advice to the Defendant in relation to his potential for and or separation from the Second Plaintiff.
The plaintiff applies to strike out [3.2] and [4.2.1] on the ground that they disclose no reasonable defence or they may prejudice, embarrass or delay the fair trial of the action.
The plaintiff says that the pleaded circumstances in [3.2] do not establish any duty on the part of the defendant to publish the text message to Mr Quayle and they do not establish a social, moral or economic interest sufficiently tangible for the public interest to acquire its protection: see Moit v Bristow [2005] NSWCA 322 [76]. Additionally, the plaintiff says, the pleaded circumstances do not disclose a reciprocity of interest on the part of Mr Quayle as allegedly a 'confidant and advisor'; there is no interest, supported by law, in a recipient, who is acting gratuitously as a confidant and advisor to a person, in receiving the publication of defamatory material from that person.
Common law qualified privilege - legal principles
Statements published on an occasion of qualified privilege are protected for the common convenience and welfare of society: Toogood v Spyring (1834) 149 ER 1044, 1055 Parke B. Qualified privilege is founded on the principle that the public convenience is to be preferred to private interest and that communications, which the interest of society require to be unfettered, may freely be made by persons acting honestly without actual malice notwithstanding that they involve relevant comments condemnatory of individuals: Willes J in Henwood v Harrison (1872) LR7CP 606 [622] approved by Lord Shaw in Adam v Ward [1917] AC 309 [349]. The occasions of qualified privilege depend upon all of the circumstances of the publication but the courts regard most privileged occasions as falling under certain broad categories.
One broad category of occasions of qualified privilege is where the maker of the statement is acting in pursuance of an interest of his and the recipient has such a corresponding interest or duty in relation to the statement. Where the statement is made in protection of an interest, the reciprocity of interest is essential to found the privilege. The interest does not have to be financial.
In Bashford v Information Australia (Newsletters) Pty Ltd (2004) 218 CLR 366 [9] ‑ [10] Gleeson CJ, Hayne and Heydon JJ said that the principles to be applied in determining whether the occasion of publication of matter about which complaint is made was an occasion of qualified privilege are well known. Reciprocity of duty or interest is essential. Their Honours said that these principles are stated at a very high level of abstraction and generality and the difficulty lies in applying the law to the circumstances of the particular case under consideration. A court must make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.
In Aktas v Westpac Banking Corporation (2010) 241 CLR 79 [22] French CJ, Gummow and Hayne JJ said that the categories of occasions of qualified privilege are not closed and cannot be rendered exact. Their Honours referred to the remarks of Dixon J in Guise v Kouvelis (1947) 74 CLR 102, 116 where his Honour said that the very width of the principles governing qualified privilege makes it more necessary, in deciding how they apply, to make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication.
Some relationship between the maker of the statement and the recipient is normally the foundation of the privilege and the reason for the requirement of reciprocity, for example, a communication made by a person in confidence to another person in the course of a relationship in which the confidant was acting in a professional capacity and the maker of the statement is acting in pursuance of his interest.
The authors of the 12th edition of Gatley on Libel and Slander write at [14.43]:
Varying views of the significance of friendship between the maker and recipient of the statement may be found but nowadays the best view is probably that the existence of a close friendship may be taken into account by the court in considering whether A has a duty to communicate to B information relevant to B's interests: friendship is not so important as to excuse any communication, or so irrelevant that communications between friends should stand on the same footing as communications between strangers. In Watt v Longsdon [1930] 1 KB 130 CA the fact that there was a friendship between the defendant and the claimant's wife, she having nursed him during an illness, did not prevent the communication of the unverified charges to her being unprivileged. However, in a modern case where D, an orthodox Jewish religious adviser, had been consulted about unwelcome sexual advances alleged to have been made by C to X and had been told that C was also thought to pose a risk to another woman, Y, D was privileged in raising the matter with Y's father rather than going directly to her in view of the long friendship between him and the father.
Gatley at [14.44] makes the point that a communication is not privileged merely because it is confidential. The authors refer to Andrews v Wilson [1845] 5 Kerr NBR 86 at 91 where Chipman CJ said:
It is material to distinguish between communications which are privileged in the eye of the law, and may, therefore, be made with impunity unless there be express malice, and communications which are merely confidential. To hold that a communication which the writer may intend to be confidential may, for the reason that it is confidential, be made a vehicle for injurying the reputation of a third person, would be most mischievous. It would afford malicious persons the opportunity of conveying slander to the quarter where it would inflict greatest injury upon the object of it, and at the same time shut him out from the power of vindicating himself.
Family relationships may give rise to an occasion of qualified privilege. Writing in 1935 Joseph Stiller said that as a general proposition a communication, untrue and otherwise defamatory, made by a close relative of a person wooed concerning the character of his or her suitor, whether in response to a request or not, if made in the belief of its truth, will be held to be conditionally privileged and the right of a parent to investigate the character and reputation of his daughter's fiancé and to devolve to her the results of such investigation had been repeatedly upheld: Stiller J, 'Conditional Privilege and the Law of Slander and Libel (1935) 13 Chicago-Kent Law Review 219. Those cases reflect the social values of their time. Stiller went onto say that mere friendship, no matter how close, will not excuse a voluntary communication of this character.
It will often be important whether the communication is volunteered. A statement in answer to an enquiry by the recipient of the statement is more likely to be privileged than a volunteered statement. However, the fact that a defamatory statement was voluntary is not decisive on the question whether the statement is made on an occasion of qualified privilege: Holmes a Court v Papaconstuntinos [2011] NSWCA 59 [5] ‑ [6], [12], [15] ‑ [18], [140]. In Holmes a Court the New South Wales Court of Appeal again stated that the issue of qualified privilege turns on a close examination of all the circumstances of the publication.
The authors of the 12th edition of Gatley say that where there is a relationship of trust and reliance, there is privilege for information imparted by a person to his advisor in seeking assistance or advice. The authors say in a footnote:
The well‑established privilege for communications between solicitor and client (which may however, be absolute …) is therefore it is submitted, a special example of a wider principle.
An accepted category of occasions of qualified privilege is a reply to an attack. A person whose character or conduct has been attacked is entitled to answer the attack, and any defamatory statements he may make about the person who attacked him will be privileged, provided they are published in good faith and are fairly relevant to the accusations made. The defendant is not required to be diffident in protecting himself and is allowed a considerable degree of latitude; the law does not concern itself with niceties in such matters: Gatley [14.51] citing Turner (otherwise Robertson) v Metro Goldwyn Mayer Pictures Ltd [1950] 1 All ER 449 at 470 ‑ 471 Lord Oaksey.
The authors of the 12th edition of Gatley say that whether the reply to attack basis of qualified privilege extends to a statement in rebuttal of an anticipated attack is not clear. However, the authors say, even if it does, the principle must be confined to cases where the defamatory statement was both:
(1)in reasonable anticipation of an imminent attack on the conduct of the maker of the statement; and
(2)limited to a proportionate rebuttal of that anticipated attack.
First matter not made on occasion of qualified privilege
The defendant pleads that Mr Quayle was his personal friend and a confidant and advisor in relation to circumstances relating to the defendant's separation from his wife. The defendant says that from at least October 2016, Mr Quayle provided advice to the defendant in relation to his potential for and/or separation from Ms McIntosh. The defendant says that in those circumstances he had an interest in ensuring Mr Quayle was informed of circumstances related to the separation.
The defendant also relies on other matters in the particulars subjoined to [4.2.1] of his defence set out earlier in these reasons.
The plaintiff submitted that the plea of qualified privilege at common law is unarguable. First, he submitted that the first matter complained of was not published on an occasion of qualified privilege. Secondly, he submitted that in any event that part of the matter which defamed the plaintiff was not sufficiently connected to any privileged occasion to attract the defence.
As to the first point, I am satisfied that, in the circumstances pleaded by the defendant, it is not arguable that the first matter complained of was published on an occasion of qualified privilege.
The defendant's case is that Mr Quayle was his confidant and advisor in relation to his separation from his wife and the first matter complained of was a communication informing Mr Quayle of information in relation to the plaintiffs' separation from his wife.
The relationship between the defendant and Mr Quayle is one of friends. Although the defendant attaches the labels 'advisor' and 'confidant' to Mr Quayle there was no professional or other pre-existing relationship between them other than that of friendship. The communication was not made for the purpose of, or in the course of, obtaining advice. The defendant did not expressly or impliedly ask for advice. The defendant conveyed no information on which Mr Quayle could give advice.
The pleaded facts are not capable of establishing that the text was a reply to an attack upon the plaintiff. Particulars (e), (f) and (h) subjoined to [4.2.1] refer to matters which arguably involve an attack upon the defendant's character. However, the particulars do not say that Mr Quayle had been informed of, or knew of, the attack upon the defendant's character alluded to in paragraphs (e), (f) and (h) of the particulars.
The particulars do not assert that the first matter complained of was made in an anticipation of an imminent attack on the conduct of the plaintiff or give any facts from which that might be inferred.
In any event, if the communication was made on an occasion of qualified privilege, that part of the text which defamed the plaintiff was not sufficiently connected to the occasion of qualified privilege to attract the defence. The relevant part of the text says that Ms McIntosh's family, which for present purposes is accepted to be a reference to or include a reference to the plaintiff, cannot hold their heads high after the way they have dealt with 'all of this', the father of their church is extremely disappointed in them and they are seemingly nice people who have turned evil and think they are justified in doing what they have done. The plaintiff says correctly that none of that confides in Mr Quayle the content of any negotiations between the defendant and Ms McIntosh, or any part the plaintiff or any of Ms McIntosh's family have played in those negotiations and the text does not seek Mr Quayle's advice.
The respective functions of judge and jury where privilege is claimed were explained by Lord Esher MR in Hebditch v MacIlwaine [1894] 2 QB 54 58:
The question whether the occasion is privileged, if the facts are not in dispute, is a question of law only, for the judge, not for the jury. If there are questions of fact in dispute upon which this question depends, they must be left to the jury, but when the jury have found the facts, it is for the judge to say whether they constitute a privileged occasion.
The facts as pleaded by the defendant, as a matter of law, are not capable of constituting the defence of qualified privilege. There is no pre‑existing relationship between the defendant and Mr Quayle other than that of friends. The defendant did not convey to Mr Quayle any information on which Mr Quayle could advise him. The defendant did not ask for advice. The communication was a voluntary statement which portrayed the plaintiff and his family as having done things of which they could not be proud and could be characterised as evil and the defendant as being a nice person who has behaved properly and with dignity. The defendant was not replying to an attack upon his character of which Mr Quayle was aware nor is it pleaded that there were facts which gave rise to a reasonable anticipation of an imminent attack on the conduct or character of the defendant being made to or made known to Mr Quayle.
Paragraph 4.2.1 of the defence should be struck out.
Defence [3.2]
Paragraph 3.2 of the defence sets out facts which are subsequently relied upon in the pleaded defences of qualified privilege. Those defences will be struck out. Paragraph 3.2 should be struck out.
Defence [4.2.2]: first matter complained of - defence of statutory qualified privilege
In [4.2.2] of the defence the defendant pleads that the words in the first matter complained of were published on an occasion of qualified privilege under s 30 of the Defamation Act 2005 (WA) in that:
4.2.2.1 Mr Quayle, in the circumstances pleaded in subpar 3.2 herein, had an interest or apparent interest in having the information conveyed by the words published;
4.2.2.2 the words were published in the course of giving to Mr Quayle the said information;
4.2.2.3 the defendant's conduct in publishing the said information was reasonable in the circumstances.
By way of particulars, the defendant repeats the particulars to subparagraph 4.2.1.
As I said in Craib v Craib [2018] WASC 112 a defendant relying upon the defence of qualified privilege under Defamation Act 2005 (WA) s 30 must give at least the following particulars:
(1)the subject on which information was given to the recipient in the course of which the defamatory matter was published and on which the recipient has an interest or apparent interest in having information;
(2)whether the defendant relies upon the recipient of the publication having an interest, or only an 'apparent' interest, in receiving information on the subject;
(3)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; and
(4)the conduct of the defendant in publishing the matter complained of which he contends was reasonable in the circumstances [28].
The defendant's particulars of statutory qualified privilege are likely to prejudice, embarrass or delay the fair trial of the action. First, the defendant does not properly plead whether he relies upon having an interest or only an apparent interest in receiving information on the pleaded subject. Paragraph 4.2.2.1 pleads that Mr Quayle had an interest or apparent interest in having the information conveyed by the words published. A defendant may plead facts or characterisations of facts in the alternative. But they should be separately pleaded. Where a defendant relies upon an 'apparent interest', the defendant must give particulars of the reasonable grounds for the defendant's belief that the recipient had such an interest. In so far as the defence relies upon Mr Quayle having an 'apparent interest', it does not clearly identify the reasonable grounds for the defendant's belief that Mr Quayle had such an interest. Particulars are given after [4.2.2.3]. It is not clear whether those particulars relate to only to [4.2.2.3] or to the whole of [4.2.2] and if the latter, whether all of the particulars relate to the plea that Mr Quayle had an apparent interest in receiving the communication or only some of them and if so which. It should not be left to the plaintiff or the court to try and work that out.
Secondly, the defendant must clearly state the subject on which information was given to Mr Quayle in the course of which the defamatory matter was published and on which Mr Quayle had an interest or apparent interest in having information. Section 30 of the Defamation Act 2005 (WA) distinguishes between 'the subject' and the 'information'. The defence does not identify 'the subject' on which information was given to Mr Quayle in the course of which the defamatory matter was published. Again, the plaintiff cannot put forward some composite pleading and leave it to the plaintiff and the court to trawl through the pleading and to try and work out, if they can, what is 'the subject' on which the defendant says information was given to Mr Quayle in the course of which the defamatory matter was published.
Thirdly, the defendant must identify the conduct of the defendant in publishing the matter complained of which he contends was reasonable in the circumstances. The defendant cannot leave it to the plaintiff and the court to trawl through the particulars and try to work out which of those particulars is said to be conduct of the defendant in publishing the matter complained of, which he contends was reasonable in the circumstances.
Paragraph 4.2.2 of the defence should be struck out.
Defence [4.2.3]: first matter complained of - defence of triviality
At [4.2.3] the defendant pleads that the circumstances of the publication of the first matter complained of was such that the plaintiff was unlikely to sustain any harm as a result.
Defence of triviality - legal principles
Section 30 of the Defamation Act is:
It is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
The defence was considered by the Queensland Court of Appeal in Smith v Lucht [2017] 2 Qd R 489. The applicant was a solicitor. His son was married to the applicant's former wife. The applicant was acting for her in family law matters against the respondent. The applicant sued the respondent claiming damages for defamation. The respondent made three statements - one by email, and two orally, that likened the applicant to Dennis Denuto, the character in the film The Castle who was represented in the film as unprepared, lacking in knowledge and judgment, incompetent and unprofessional. The primary judge dismissed the claim on the basis that, whilst the statements were defamatory, the respondent had proved that the circumstances of the publications were such that the applicant was unlikely to sustain any harm, so the defence of triviality under s 33 of the Defamation Act 2005 (Qd) was made out.
On the application for leave to appeal, the Queensland Court of Appeal made a number of relevant findings. First, the reference to 'any harm' in s 33 is confined to reputational harm and does not extend to harm to feelings: [14] ‑ [16] Philippides JA, [54] Flanagan J.
Secondly, the enquiry whether the applicant was unlikely to sustain any harm is directed to the time of publication. The court must make a prospective enquiry; the court must be satisfied that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm. The defence does not depend upon an enquiry as to what thereafter happens and in particular, whether or not harm in fact probably resulted from the publication. The defence depends entirely on the causative potency of the circumstances of the publication to produce immunity from harm: [33] ‑ [35] Flanagan J, with whom Philippides J agreed. Nevertheless, evidence of subsequent events may fortify a conclusion. In his reasons the primary judge found, amongst other things:
At the time they were made, the statements did not cause [the applicant's daughter-in-law and his son] to think less of the plaintiff and there was little chance of republication.
Flanagan J said in relation to that finding:
A reference made by his Honour to evidence that the statements did not cause the applicant's daughter-in-law and son to think less of him does not of itself reveal error. Whilst such evidence is of limited relevance it may fortify a conclusion [44].
Thirdly, the court held that defamatory statements, even of serious content, may be caught by the triviality defence: Flanagan J [50], Philippides JA agreeing.
Fourthly, the major circumstances the court should consider in deciding whether the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm include:
(a)the content of the publication;
(b)the extent of the publication;
(c)the nature of the recipients and their relationship with the plaintiff. This may include the recipients' knowledge of the plaintiff's reputation.
[37] Flanagan J, Philippides JA agreeing.
Defence of triviality pleaded at defence [4.2.3]
At [4.2.3] the defendant pleads that the circumstances of the publication of the first matter complained of were such that the plaintiff was unlikely to sustain any harm as a result.
Particulars are given. Particular (a) is that the publication was to one person, Mr Quayle. That is relevant to the defence of triviality.
Particular (b) repeats the particulars to [7.2.1]. The defendant says that he will amend that plea so that it refers only to the particulars to [7.2.1(a)]. That particular repeats the particulars to [4.2.1] which I have set out earlier in these reasons.
This structure of the defence makes it difficult to readily comprehend. The reader must go backwards and forwards through the document to ascertain the particulars being relied on. Furthermore, this approach results in the incorporation of particulars which cannot be relevant. Paragraph 3.2.3, which is part of the matters pleaded at [3.2], which is incorporated in [4.2.1] and in turn in [7.2.1(a)] pleads that the defendant had an interest in ensuring that Mr Quayle was informed or accurately informed of circumstances related to the defendant's separation from his wife. That is a conclusionary plea directed to the defence of qualified privilege and does not plead facts relevant to a defence of triviality.
Paragraphs 3.2.1 and 3.2.2 and the particulars to [3.2.3] refer to Mr Quayle's relationship with the defendant. Taken alone, that does not constitute a circumstance of publication such that the plaintiff was unlikely to sustain any harm. However, Mr Quayle's relationship with the defendant, his knowledge of the defendant's relationship with the plaintiff and that they were all involved in dispute over family matters, may be circumstances forming part of the circumstances of the publication such that the plaintiff was unlikely to sustain any harm.
Particulars (d), (e), (f), (g), (h) and (i) subjoined to [4.2.1] are not relevant to the s 30 defence because it is not pleaded that any of those matters were known to Mr Quayle. Furthermore, particulars (h) and (i) are conclusionary pleas relevant to the plea of qualified privilege but not to the section 30 defence. The result is that particular (b) to [4.2.3] should be struck out.
Particular (c) of the particulars subjoined to [4.2.3] is that:
At all relevant times Mr Quayle and the [plaintiff] knew each other socially and the publication to Mr Quayle did not cause Mr Quayle to change his attitude towards the [plaintiff] or result in any diminution of the regard with which Mr Quayle held the [plaintiff].
Section 33 of the Defamation Act 2005 (WA) provides that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. The question of whether a plaintiff was unlikely to sustain any harm is directed to the time of publication and is a prospective enquiry. The propensity for harm in the circumstances of the publication is relevant. Whether harm was actually suffered is irrelevant to the defence. However, the challenged particular is limited to the assertion that the publication did not cause Mr Quayle to change his attitude towards the plaintiff, or result in any diminution of the regard with which he held the plaintiff. Whilst such evidence is of limited relevance it may fortify a conclusion that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm: see Smith v Lucht [44] Flanagan J.
The defendant concedes that particular (d) should be struck out.
In summary, particular (b) and particular (d) of the particulars to [4.2.3] should be struck out.
Second matter complained of
The second matter complained of is that the defendant said to Father Smith:
[The plaintiff] is a liar.
The plaintiff pleads that in its natural and ordinary meaning the second matter complained of meant, and was understood to mean, the first plaintiff is a liar. Counsel for the plaintiff confirmed that that imputation is of a general charge of being a liar not a specific allegation of having told a lie.
Defence [5.2.1]: second matter complained of ‑ defence of qualified privilege at common law
At [5.2.1] the defendant pleads that the words in the second matter complained of were published on an occasion of qualified privilege at common law. The defendant gives the following particulars:
(a)the matters pleaded in and the particulars to subparagraph 3.2 above are repeated
(b)The particulars to subparagraph 4.2.1 above are repeated.
(c)Father Richard Smith agreed to meet the Defendant and, if possible, to provide the guidance particularised in subparagraph (g)B of subparagraph 4.2.1.
(d)Father Richard Smith and the Defendant expressed a common view that it would be in the best interests of all parties if matters pertaining to the finalisation of the marriage between the Second Plaintiff and the Defendant could be settled peacefully.
(e)In order to consider how he might approach discussions with the First and Second Plaintiffs and their father Peter Armstrong, Father Richard Smith asked the Defendant to provide the background to the events and discussions that had led to the Defendant seeking to confide in Father Richard Smith.
(f)In the premises:
i.it was in the Defendant's interests to inform Father Richard Smith of the understatement of the settlement proposal;
ii.Father Richard Smith had a reciprocal interest in being informed about the understatement.
The matters pleaded in and the particulars to [3.2] refer to the relationship between the defendant and Mr Quayle. They are not relevant to the plea of qualified privilege in [5.2.1]. Particular (a) must be struck out.
Whilst particular (b) repeats the particulars to [4.2.1], in his oral submissions counsel for the defendant said that the defendant relies only on particulars (d), (e), (f) and (g) of [4.2.1]. In those particulars the defendant says that he sought guidance from Father Smith regarding how he may approach negotiations with the Armstrong family, including the plaintiff and Ms McIntosh, in order to reach, in the best interests of all parties, a fair and peaceful settlement of the separation with Ms McIntosh. That assertion is repeated in particular (c).
There was no pre‑existing relationship between the defendant and Father Smith. Father Smith is the parish priest at the church attended by the plaintiff's father and the plaintiff. Those facts are not capable of rendering the communication during which the defendant said to Father Smith that the plaintiff is a liar an occasion of qualified privilege. The particulars do not disclose that the statement that the plaintiff is a liar was sufficiently connected to any privileged occasion to attract the defence. Paragraph 5.2.1 should be struck out.
Defence [5.2.2]: second matter complained of - defence of statutory qualified privilege
The plaintiff applies to strike out [5.2.2] of the defence in which the defendant pleads that the words were published on an occasion of qualified privilege under s 30 of the Defamation Act 2005 (WA) in that:
5.2.2.1 Father Richard Smith had, in the circumstances particularised in sub subparagraph 5.2.1 herein, an interest or apparent interest in having the information conveyed;
5.2.2.2 Was published in the course of giving to Father Richard Smith the said information;
5.2.2.3 The Defendant's conduct in publishing the said information was reasonable in the circumstances.
By way of particulars the plaintiff repeats the particulars to [5.2.1] which I have set out earlier in these reasons.
Paragraph 5.2.2 should be struck out for the same reasons as [4.2.2].
Defence [5.2.3]: second matter complained of - defence of triviality
At [5.2.3] the defendant pleads that the circumstances of the publication of the second matter complained of were such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives the following particulars:
(a)The publication was only to one person, Father Richard smith.
(b)The particulars to subparagraph 5.2.1 are repeated.
(c)Father Richard Smith knew the first Plaintiff as a practitioner of his Church and the publication to Father Richard Smith did not cause Father Richard Smith to change his attitude toward the First Plaintiff or result in any diminution of the regard with which Father Richard Smith held the First Plaintiff.
(d)the publication did not cause the First Plaintiff any grief or annoyance given the First Plaintiff:
i.held no regard for what the Defendant said about the First Plaintiff;
ii.commenced the within proceedings not to vindicate his reputation with Father Richard Smith or for compensation but, on his own statement or admission, to financially and 'legally' destroy the Defendant - the statement or admission was made to the Defendant's brother, Mr Ian McIntosh, on 17 May 2017.
Particular (b) repeats particulars to [5.2.1]. Particular (a) to [5.2.1] repeats the matters pleaded and the particulars to [3.2]. None of those matters are relevant to the publication to Father Smith.
Particular (b) to [5.2.1] repeats the particulars to [4.2.1]. Those particulars are not relevant to the plea that saying to Father Smith that the plaintiff was a liar was unlikely to cause the plaintiff to sustain any harm. The remaining particulars to [5.2.1] are not relevant to the plea that saying to Father Smith that the plaintiff was a liar is unlikely to cause any harm to the plaintiff.
The words in particular (c) to [5.2.3] after 'as a practitioner of his Church' should not be struck out for the same reason that the similar words in particular (c) to [4.2.3] should not be struck out. The remaining words of (c) are not challenged. However, I assume that the word 'practitioner' is an error and should be the word 'parishioner'.
The defendant does not press particular (d).
The result is that particulars (b) and (d) to [5.2.3] should be struck out.
Third matter complained of
The third matter complained of is that the defendant published the following words of and concerning the plaintiff to Mr Quayle:
It's great to see Bec looking so happy and healthy. I'm glad she's happy. It's just a shame I wasn't able to put a smile on her face a bit more over the past couple of years. I really wish she could have found a way to be happy with me. I'll never understand why she had to change her attitude towards me so much once we got married.
I wish I could say that I don't bear any resentment towards her, but it's hard to get over the way I've been treated by her, Paul and Peter. And I hate that she turned you against me too.
I'm not going to be around long after the finalisation of everything mate. Ironically, the only thing that has kept me going at all is the knowledge that if something had happened to me before its (sic) all finalised, then my boys would lose even more.
I probably won't get a chance to say goodbye to you in person.
I ask just one thing. When something happens to me, can you please ensure that Bec, Paul and Peter stay away from any gathering of my family and friends. Robin and Emily are ok, as are all her other relatives who were always nice to me. But it would be highly inappropriate for Bec, Paul or Peter to be anywhere near the people that really loved me after the way they've plotted, schemed and lied to engineer my downfall for Bec's benefit. Well played Armstrongs ‑ they got everything they wanted and more. I hope they're pleased with wrecking me completely.
I hope Bec finds someone who will keep her as happy as she is now and to love her as much as I did from the moment I met her.
The plaintiff says that in its natural and ordinary meaning the third matter complained of meant and was understood to mean the plaintiff:
(a)is a liar;
(b)has acted in such a reprehensible manner against the defendant that he is not deserving of associating with the defendant's family and friends.
At [6.2] the defendant repeats the matters pleaded in [3.2]. That subparagraph standing alone does not give rise to any defence and may prejudice, embarrass or delay the fair trial of the action. Paragraph 6.2 is not relied upon in any of the defences pleaded in [7]. Paragraph 6.2 should be struck out.
Defence [7.2.1]: third matter complained of - defence that imputation 9(a) is true
At [7.2.1] of his defence the defendant pleads that if the words in the third matter complained of bear the meaning that the plaintiff is a liar they were true in substance and in fact. The defendant gives the following particulars:
(a)the particulars of [4.2.1] are repeated;
(b)further, during the settlement negotiations [the plaintiff and Ms McIntosh] alleged to Mr Simon Quayle and Mrs Narelle Quayle that an agreement had been executed between [Ms McIntosh] and the defendant when no such agreement had been executed.
The matters set out in the particulars are not capable of proving the imputation that the plaintiff is a liar is true. First, the imputation pleaded is a general charge of lying not a specific allegation of having told a lie. As a general proposition, a charge which is one of general bad conduct cannot be justified by proof of a single act or instance.
The particulars refer to only two false statements. The first is that the plaintiff's father, Mr Peter Armstrong, in stating to the defendant's father that the defendant's settlement offer was inadequate 'understated (and by doing so misrepresented) the amount then being offered by the defendant). That does not attribute any false statement to the plaintiff.
The second false statement referred to in the particulars is that the plaintiff alleged to Mr Quayle and Mrs Quayle that an agreement had been executed between the plaintiff and the defendant when no such agreement had been executed. That is a single instance of a false statement and is not capable of justifying the general charge that the plaintiff is a liar.
Secondly, a lie is an intentionally false statement, a false statement made knowing it is false or with no belief in its truth. The particulars merely attribute to the plaintiff that he said an agreement had been executed between Ms McIntosh and the defendant when no such agreement had been executed. The particulars do not allege that the plaintiff knew that no such agreement had been executed or had no true belief that such an agreement had been executed.
Defence [7.2.2]: third matter complained of - defence that imputation 9(b) is true
Imputation 9(b) is that the plaintiff has acted in such a reprehensible manner against the defendant that he is not deserving of associating with the defendant's family and friends.
The defendant gives particulars of justification. The particulars are to repeat the particulars to [7.2.1] which are set out in [90] of these reasons. Particular (a) of those particulars repeats the particulars of [4.2.1] which are set out at [21] of these reasons. Those particulars do not plead any conduct of the plaintiff. Particular (e) sets out that the defendant's father told the defendant that he had been told by the plaintiff's father that the Armstrong family considered the defendant's settlement offer was inadequate and the plaintiff's father understated the amount of the offer. That is conduct by the plaintiff's father, not the plaintiff.
Particular (b) is that during the settlement negotiations the plaintiff alleged to Mr and Mrs Quayle that an agreement had been executed between Ms McIntosh and the defendant when no such agreement had been executed. That is an allegation that the plaintiff made a false statement. The particulars do not assert the plaintiff intentionally made the false statement. The allegation is not capable of proving that the plaintiff acted in such a reprehensible manner against the defendant that he is not deserving of associating with the defendant's family and friends.
Paragraph 7.2 should be struck out.
Defence [7.3.1]: third matter complained of ‑ defence of qualified privilege at common law
At [7.3.1] of his defence the defendant pleads that the words of the third matter complained of were published on occasion of qualified privilege at common law. The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1] and particular (d)(ii) of [4.2.3]. In the course of the hearing counsel for the defendant submitted that the defendant does not press particular (d)(ii) of [4.2.3]. The particulars to [7.2.1] are set out at [90] of these reasons.
The particulars are not capable of giving rise to an occasion of qualified privilege. In the third matter complained of the defendant does not ask for advice or give to Mr Quayle information in relation to which Mr Quayle might advise him. The defendant asks Mr Quayle to ensure that the plaintiff, Ms McIntosh, and the plaintiffs' father stay away from any gathering of the defendants' family and friends when something happens to him. There is no pleading that Mr Quayle was named in the defendant's will as his executor or otherwise has any authority to keep the plaintiff away from any gathering of the defendants' family and friends. Paragraph 7.3.1 should be struck out.
Defence [7.3.2]: third matter complained of - statutory qualified privilege
At [7.3.2] the defendant pleads that the words were published on an occasion of qualified privilege under s 30 of the Defamation Act 2005 (WA) in that:
7.3.2.1 Mr Quayle, in the circumstances pleaded in subparagraph 3.2 herein, had an interest or apparent interest in having the information conveyed by the words published;
7.3.2.2 the words were published in the course of giving to Mr Quayle the said information;
7.3.2.3 the Defendant's conduct in publishing the said information was reasonable in the circumstances.
The defendants gives particulars: the particulars repeat the particulars to [7.2.1].
Paragraph 7.3.2 should be struck out for the same reasons as [4.2.2].
Defence [7.3.3]: third matter complained of - defence of triviality
At [7.3.3] the defendant pleads the circumstances of publication of the third matter complained of was such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives particulars. The particulars are to repeat the particulars to [4.2.3].
I have found that particulars (b) and (d) to [4.2.3] should be struck out. Consequently, the particulars to [7.3.3] must be struck out and re‑pleaded so as to exclude particulars (b) and (d) to [4.2.3].
Fourth matter complained of
The fourth matter complained of is that the defendant published the following words of and concerning the plaintiff to Mr Quayle:
I think you know me pretty well Simon. I've never ever had a fight with anyone in my whole life (except for in grade 3 when Cameron Davies pissed on my new cricket set because I said he was out).
I don't fight with people. Even when Michelle and I split up, we worked it out cooperatively. I don't fight.
On the other hand, fighting is something Bec and Paul are ALWAYS doing. They don't do peace. They like conflict. There are articles on the internet about Paul picking fights everywhere and with everyone, regardless of who gets hurt.
It wouldn't matter what I did, they wouldn't be happy unless they got a fight.
They going to get one. I've got 47 years of peace behind me but I'm not going to let those people take advantage of my pacifist ways. I've never felt so much passion for truth and justice as I feel now.
Their priest Father Richard knows about their lies.
Spike knows about their history.
If it's a fight they want, then that's what they'll get.
The full truth, every single fact, is going to set us all free.
The plaintiff pleads at [11] of his statement of claim that in its natural and ordinary meaning the fourth matter complained of meant and was understood to mean that the plaintiff:
(a)is a liar;
(b)is a violent person, because he picks fights with people.
The plaintiff also pleads at [12] of his statement of claim that the fourth matter complained of meant by way of innuendo that the plaintiff has acted contrary to his Christian beliefs. The plaintiff gives the following particulars:
PARTICULARS OF IDENTIFICATION IN RESPECT OF PARAGRAPHS 11 AND 12 ABOVE
(a)the recipient of the fourth matter complained of, Simon Quayle, knows that the first plaintiff is the brother of the second plaintiff, referred to in the fourth matter complained of as 'Bec'.
(b)Simon Quayle was aware that the first plaintiff was supporting the second plaintiff in negotiations between the second plaintiff and the defendant regarding their marriage separation.
PARTICULARS OF INNUENDO PLEA IN RESPECT OF PARAGRAPH 12
The recipient of the fourth matter complained of, Simon Quayle, knew the first plaintiff is a catholic who regularly attends Our Lady of Grace church in North Beach.
Defence [9.2]: fourth matter complained of - defence imputation 11(a) is true
At [9.2] the defendant pleads that if the words of the fourth matter complained of in their natural and ordinary meaning mean that the plaintiff is a liar, they were true.
The particulars in support of the defendant's plea of justification is to repeat the particulars to [7.2.1]. The matters set out in those particulars are not capable of proving the truth of imputation 11(a) for the same reasons that the particulars are not capable of proving imputation 9(a).
Defence [9.3.1]: fourth matter complained of - defence of qualified privilege at common law
At [9.3.1] the defendant pleads that the words of the fourth matter complained of were published on an occasion of qualified privilege at common law. The defendant gives particulars. The particulars are to repeat the particulars to [7.3.2].
The matters set out in the particulars are not capable of giving rise to a defence of qualified privilege at common law. Paragraph 9.3.1 should be struck out.
Defence [9.3.2]: fourth matter complained of - statutory qualified privilege
At [9.3.2] the defendant pleads that the words of the fourth matter complained of were published on an occasion of qualified privilege under s 30 of the Act. In that:
9.3.2.1Mr Quayle had, in the circumstances pleaded in subparagraph 3.2 herein, an interest or apparent interest in having the information conveyed;
9.3.2.2Was published in the course of giving to Mr Quayle the said information;
9.3.2.3The Defendant's conduct in publishing the said information was reasonable in the circumstances.
The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1].
Paragraph 9.3.2 should be struck out for the same reasons as [4.2.2].
Defence [9.3.3]: fourth matter complained of - defence of triviality
At [9.3.3] the defendant pleads that the circumstances of the publication was such that the plaintiff was unlikely to sustain any harm as a result. The particulars given are to repeat the particulars to [4.2.3].
Particulars (b) and (d) to [4.2.3] should be struck out for the reasons stated at [68] and [105]. Consequently the particulars to [9.3.3] should be struck out.
Defence [10.2]: fourth matter complained of - defence of truth
At [10.2] the defendant pleads that if the words of the fourth matter complained of by way of innuendo mean that the plaintiff has acted contrary to his Christian beliefs as pleaded in paragraph 12 of the statement of claim, they were true. The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1]. Particular (a) to [7.2.1] repeats the particulars to [4.2.1]. Those particulars do not state any conduct by the plaintiff. They are irrelevant to, and not capable of establishing, the truth of the pleaded imputation.
Particular (b) to [7.2.1] is that during the settlement negotiations the plaintiff and Ms McIntosh alleged to Mr Quayle and Mrs Quayle that an agreement had been executed between the defendant and Ms McIntosh, when no such agreement had been executed. The defendant does not assert that the plaintiff intentionally made a false statement or did so with the intention of deceiving Mr and Mrs Quayle or any other circumstances which render the plaintiff's conduct contrary to his Christian beliefs. The eighth commandment - thou shalt not bear false witness against thy neighbour - condemns lying, intentionally deceiving another by speaking a falsehood, not merely making a false statement.
The particulars to [10.2] are not capable of proving the truth of the imputation that the plaintiff acted contrary to his Christian beliefs. Paragraph 10.2 should be struck out.
Defence [10.3.1]: fourth matter complained of - defence of qualified privilege at common law
At [10.3] the defendant pleads that in so far as the words of the fourth matter complained of bear the meanings by way of innuendo pleaded in [12] of the statement of claim the words were published on an occasion of qualified privilege at common law. The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1].
The matters set out in the particulars are not capable of giving rise to an occasion of qualified privilege. Paragraph 10.3.1 should be struck out.
Defence [10.3.2]: fourth matter complained of - statutory qualified privilege
At [10.3.2] the defendant pleads that in so far as the words of the fourth matter complained of bore the innuendo meanings pleaded in [12] of the statement of claim they were published on an occasion of qualified privilege under s 30 of the Act in that:
10.3.2.1Mr Quayle had, in the circumstances pleaded in subparagraph 3.2 herein, an interest or apparent interest in having the information conveyed;
10.3.2.2Was published in the course of giving to Mr Quayle the said information;
10.3.2.3The Defendant's conduct in publishing the said information was reasonable in the circumstances.
The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1].
Paragraph 10.3.2 should be struck out for the same reasons as [4.2.2].
Defence [10.3.3]: fourth matter complained of - defence of triviality
At [10.3.3] the defendant pleads that in so far as the words of the fourth matter complained bore the innuendo meaning pleaded in [12] of the statement of claim, the publication was such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives particulars. The particulars are to repeat [4.2.3].
This paragraph is a duplication of the defence pleaded at [9.3.3]. In any event, the particulars should be struck out for the same reasons as [9.3.3].
Fifth matter complained of
The fifth matter complained of is that the defendant published the following words of and concerning the plaintiff to Mr Simon Quayle:
There is no agreement.
We're going to court now. Pretty fucked to have to go that route, but with Bec's sense of entitlement and Paul's need to fuel his ego it was always a distinct possibility.
It's a shame that whenever there's an issue in Bec's life she's unable to ever find a peaceful path. Spike & Marilyn, Alana … the list of people that Bec falls out with after loving them continues to grow.
I'd love to enlighten you on more … but perhaps I'll save that for a time when you're not blinded by Armstrong lies.
I wish I'd accepted your invitation to be your assistance coach in 2002. If I had, then both Bec and I would be happier today. She was never ever happy with the life she got.
The lord knows the truth, and so will the court shortly.
The plaintiff pleads that in its natural and ordinary meaning the fifth matter complained of meant and was understood to mean that the plaintiff:
(a)is a liar;
(b)is involved in a dispute with the defendant for his own egotistical purposes.
The plaintiff gives particulars:
PARTICULARS OF IDENTIFICATION IN RESPECT OF PARAGRAPH 14 ABOVE
(a)the recipient of the fifth matter complained of, Simon Quayle, knows that the first plaintiff is the brother of the second plaintiff, referred to in the fifth matter complained of as 'Bec'.
Defence [12.2.1]: fifth matter complained of - imputation 14(a) is true
At [12.2.1] the defendant pleads that insofar as the words of the fifth matter complained of in their natural and ordinary meaning meant that the plaintiff is a liar they were true in substance and in fact.
The particulars of justification given by the defendant are to repeat the particulars to [7.2.1]. The matters set out in those particulars are not capable of proving that the plaintiff is a liar for the same reasons that the particulars to imputation 9(a) are not capable of proving the imputation. Paragraph 12.2.1 should be struck out.
Defence [12.3.1] fifth matter complained of - defence of qualified privilege at common law
At [12.3.1] of his defence the defendant pleads that the words of the fifth matter complained of were published on an occasion of qualified privilege at common law. The defendant gives particulars. The particulars are to repeat the particulars to [7.2.1].
The matters set out in the particulars are not capable of giving rise to a defence of qualified privilege at common law. Paragraph 12.3.1 should be struck out.
Defence [12.3.2] fifth matter complained of - defence of statutory qualified privilege
Paragraph 12.3.2 of the defence the defendant pleads that the words of the fifth matter complained of were published on the occasion of qualified privilege under s 30 of the Act in that:
12.3.2.1Mr Quayle, in the circumstances pleaded in subparagraph 3.2 herein, had an interest or apparent interest in having the information conveyed by the words published;
12.3.2.2the words were published in the course of giving to Mr Quayle the said information;
12.3.2.3the Defendant's conduct in publishing the said information was reasonable in the circumstances.
The defendant gives particulars. The particulars are to repeat the particulars of [7.2.1].
The defence should be struck out for the same reasons as [4.2.2].
Defence [12.3.3.]: fifth matter complained of - defence of triviality
At [12.3.3] the defendant pleads that the circumstances of the publication of the fifth matter complained of were such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives particulars. The particulars are to repeat the particulars to [4.2.3].
The particulars to [12.3.3] should be struck out for the same reasons as the particulars to [10.3.3].
Conclusion
For the reasons I have given. The following paragraphs of the defence should be struck out: [3.2], [4.2.1], [4.2.2], particulars (b) and (d) to [4.2.3], [5.2.1], [5.2.2], particulars (b) and (d) to [5.2.3], [6.2], [7.2], [7.3.1], [7.3.2], the particulars to [7.3.3], [9.2], [9.3.1], [9.3.2], the particulars to [9.3.3], [10.2], [10.3.1], [10.3.2], the particulars to [10.3.3], [12.2.1], [12.3.1], [12.3.2], the particulars to [12.3.3].
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO THE HONOURABLE JUSTICE LE MIERE27 NOVEMBER 2018
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