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):
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
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…
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- AGLC
- Armstrong v McIntosh [2018] WASC 364
- Case
- [2018] WASC 364
- Decision Date
CaseChat Overview and Summary
The court considered the nature of the defences raised by McIntosh and whether they disclosed a reasonable defence. It was noted that the categories of occasions of qualified privilege are not closed and the circumstances of the case, the situation of the parties, and the events leading up to and surrounding the publication must be closely scrutinised. The court also considered whether the particulars pleaded were adequate to support the defences of triviality, qualified privilege, and justification. The court held that the defences raised by McIntosh disclosed a reasonable defence and that the particulars pleaded were adequate to support those defences.
Accordingly, the application to strike out was dismissed. The court held that the defences of triviality, qualified privilege, and justification raised by McIntosh were sufficient to warrant consideration and that the particulars pleaded adequately supported those defences. The court did not find that the particulars were likely to prejudice, embarrass or delay a fair trial.
The court ordered that the application to strike out certain paragraphs of the defence be dismissed.
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
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.