JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ARMSTRONG -v- MCINTOSH [No 2] [2019] WASC 379
CORAM: LE MIERE J
HEARD: 18 SEPTEMBER 2019
DELIVERED : 22 OCTOBER 2019
FILE NO/S: CIV 1120 of 2018
BETWEEN: PAUL ANDREW ARMSTRONG
Plaintiff
AND
GREGORY MCINTOSH
Defendant
Catchwords:
Practice and procedure - Defamation - Application to permanently stay or dismiss action - Whether an abuse of process - Whether resources of court and parties disproportionate to interest at stake - Whether plaintiff's imputations arising from the publications meet the necessary threshold of seriousness - Turns on own facts
Legislation:
Civil Procedure Act 2005 (NSW) s56, s 60, s 67
Determination Act 2005 (WA) s 7, s 32, s 33
Rules of the Supreme Court 1971 (WA) O 1 r 4B, O 16 r 1, O 20, r 19
Result:
Plaintiff's claim in relation to the alleged publication to Father Richard Smith is dismissed
Defendant's application will otherwise be dismissed.
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M C Goldblatt |
| Defendant | : | Mr N D C Dillon |
Solicitors:
| Plaintiff | : | Carmel Galati |
| Defendant | : | Hager Grubb & Partners Lawyers |
Case(s) referred to in decision(s):
Armstrong v McIntosh [2018] WASC 364
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Bleyer v Google Inc [2014] NSWSC 897
Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986
Burns v Gaynor (No 2) [2019] NSWDC 552
Daniels v British Broadcasting Corporation [2010] EWHC 3057
Del'Olio v Associated Newspapers Ltd [2011] EWHC 3472
Dey v Victorian Railways Commissioners (1949) 78 CLR 62
Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779
Elzahad v Commonwealth of Australia [2015] NSWDC 271
Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612
Freeburn v Cake Decorators Association (NSW) Inc (No 2) [2014] NSWDC 173
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gg Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664
Ghosh v Miller (No 2) [2017] NSWSC 791
Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595
Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151
Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165
Habib v Radio 2UE Pty Ltd [2009] NSWCA 231
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
Khalil v Nationwide News Pty Limited (No 2) [2018] NSWDC 126
Kostov v Nationwide News Pty Ltd (2018) 97 NSWLR 1073
Lachaux v Independent Print Ltd [2019] UKSC 27
Lazarus v Azize [2015] ACTSC 344
Lesses v Maras (2017) 128 SASR 292
Mohareb v Palmer (No 2) [2015] NSWDC 141
Moti v The Queen (2011) 245 CLR 456
Old UGC Inc v IRC (NSW) (2006) 227 ALR 190
Park v Lee (2016) 22 DCLR (NSW) 250
Radio 2UE Pty Ltd Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Rogers v The Queen (1994) 181 CLR 251
Sim v Stretch [1936] 2 All ER 1237
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- AGLC
- Armstrong v McIntosh (No 2) [2019] WASC 379
- Case
- [2019] WASC 379
- Decision Date
CaseChat Overview and Summary
The court had to determine whether the plaintiff's allegations met the threshold of seriousness to be considered defamatory. The court considered the nature of the imputations and whether they were capable of substantially affecting the plaintiff's reputation. The court noted that the threshold for seriousness was low and that the determination of whether the imputations met this threshold was not to be made at an interlocutory stage. The court found that the imputations pleaded by the plaintiff, such as being an evil person, a hypocrite, a liar, and aggressive, were capable of substantially affecting a person's reputation and were not trivial criticisms. Therefore, they were capable of meeting the threshold of seriousness.
Based on the court's findings, the application to permanently stay or dismiss the action was dismissed. The court held that the plaintiff's imputations were capable of meeting the threshold of seriousness, and thus the action could proceed. The court did not find that the resources of the court or parties were disproportionate to the interest at stake, nor did it find that the proceedings were an abuse of the court process. The final orders of the court allowed the plaintiff's action to proceed, rejecting the defendant's application to stay or dismiss the case.
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 Daniels v British Broadcasting Corporation[33] Sharp J found that feedback forms about a worker's performance were not defamatory. The judge said that 'minor criticisms of this nature are not tortious simply because the ordinary reasonable sensible person would not consider they reflected on the reputation of the person concerned and would not have a tendency to damage the reputation of the claimant'. In another case the judge observed that words may be unflattering or even insulting but that is not the same thing as being defamatory.[34][33] Daniels v British Broadcasting Corporation [2010] EWHC 3057.[34] Del'Olio v Associated Newspapers Ltd [2011] EWHC 3472 [26]. To meet the threshold of seriousness the publication must substantially affect in an adverse manner the plaintiff's reputation or have a tendency so to do. The threshold is low. Its purpose is to exclude matter that is adverse to a person in a way that does not substantially affect their reputation. The court does not find on an interlocutory application whether or not the matters complained of meet the threshold of seriousness. The test on a strike out application is whether the matters complained of are capable of meeting the threshold of seriousness. I am not satisfied that the matters complained of are not capable of meeting the threshold of seriousness. For the purposes of this application it must be accepted that the matters complained of are capable of giving rise to the pleaded imputations. The first, third, fourth and fifth matters complained of may be considered together. The plaintiff pleads that those matters variously give rise to the imputations that the plaintiff:(1. first matter complained of)(a)is an evil person;(b)is a hypocrite, in that he pretends to be a good person, but, in fact is evil;(c)acted in such an unchristian manner that his parish priest thinks ill of him;(3, 4 and 5. third, fourth and fifth matters complained of)(a)is a liar;(3. third matter complained of)(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;(c)conspired with two other people to engineer the ruination of the defendant by nefarious means;(4. fourth matter complained of)(b)is an aggressive person because he picks fights with people;(c)is a sociopath in that he likes fighting with people, regardless of who gets hurt as a result;(d)has acted contrary to his Christian beliefs.(5. fifth matter complained of)(b)is involved in a dispute with the defendant for his own egotistical purposes. The meaning of an imputation must be considered in the context of the published material by which the imputation was conveyed.[35] Nevertheless, each of the matters complained of is capable of conveying to an ordinary reasonable person that it is adversely referring to the character of the plaintiff.[35] Greek Herald Pty Ltd v Nikolopoulos (2001) 54 NSWLR 165 [18] ‑ [28]. All of the imputations on their face are capable of substantially affecting a person's reputation. Calling someone a liar is an age old epithet. It immediately casts doubt on every aspect of the person's integrity. Calling someone evil connotes that they are morally bad, they cause harm, misfortune or destruction. Almost everyone is repelled by hypocrisy. Hannah Arendt described hypocrisy as the vice of vices in that integrity can exist under the cover of all other vices except this one.