Armstrong v McIntosh (No 2)
[2019] WASC 379
•22 OCTOBER 2019
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
Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985
Trkulja v Google LLC (2018) 263 CLR 149
Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118
Watney v Kencian [2017] QCA 116
Webster v Lampard (1993) 177 CLR 598
Williams v Spautz (1992) 174 CLR 509
XZ v Amazon (No 7) [2016] NSWSC 637
Zameen Investments Inc Mohammed Rafiuddin v DF Brazier Builders Nicholas O'Hara-Smith [1990] EWCA Civ JO320‑7
LE MIERE J:
Summary
The plaintiff is the brother of the defendant's former wife. The plaintiff complains of four text messages sent by the defendant to a friend of the defendant, Simon Quayle, which the plaintiff says are defamatory of him. The plaintiff also alleges that the defendant defamed him in an oral statement to Father Richard Smith, the plaintiff's parish priest. The plaintiff claims damages for defamation and an injunction restraining the defendant from repeating or republishing the allegedly defamatory imputations arising from each of the publications complained of.
The defendant and his former wife, Ms Armstrong,[1] separated in October 2016. They were in dispute about the division of their property until November 2017 when they reached an agreement to settle their dispute at a mediation conference in the Family Court. The plaintiff actively supported his sister, Ms Armstrong, in her dispute with the defendant. Ms Armstrong and the plaintiff asserted, and the defendant denied, that in about March 2017 Ms Armstrong and the defendant had reached an agreement in relation to their property dispute. The publications complained of by the plaintiff relate to the dispute between the plaintiff and Ms Armstrong on the one hand, and the defendant on the other hand, and the conflict arising from that dispute.
[1] Ms Armstrong was formerly known as Ms McIntosh and commenced this proceeding (as second plaintiff) in that name. She has reverted to her former name of Armstrong; she swore an affidavit using that name. I will refer to her throughout these reasons as Ms Armstrong.
The defendant has applied for the action to be permanently stayed or dismissed on two grounds. The first ground is that action is an abuse of process because the resources of the court and the parties that will have to be expended to determine the action are disproportionate to the interest at stake. The second ground is that the plaintiff's imputations arising from the publications complained of do not surmount the necessary threshold of seriousness.
For the following reasons the plaintiff's claim in relation to the alleged publication to Father Richard Smith will be dismissed. The defendant's application will otherwise be dismissed.
Factual background
The defendant and Ms Armstrong were married on 31 August 2014. They separated on 11 November 2016. The defendant moved out and Ms Armstrong remained in the matrimonial home. In early 2017 Ms Armstrong and the defendant commenced discussing dividing their property. On 29 January 2017, the defendant moved back into the matrimonial home and made a verbal offer to Ms Armstrong for division of their property. Ms Armstrong rejected that offer.
Ms Armstrong says that after weeks of unsuccessful negotiation between her and the defendant they reached an agreement in March 2017, the central terms of which were that the defendant would pay Ms Armstrong $285,000 and Ms Armstrong would transfer the matrimonial home to the defendant. The defendant says that Ms Armstrong said to him that, for any settlement to be binding upon them, an agreement would need to be comprehensively drafted and reviewed to the satisfaction of her solicitor and her brother, the plaintiff. The defendant says that he said to Ms Armstrong that any agreement would need to be reviewed to the satisfaction of his solicitor and himself before he would be bound to any obligations. The defendant says that on 26 March 2017 Ms Armstrong instructed him to correspond only with the plaintiff.
Ms Armstrong and her brother, the plaintiff, maintained and maintain that in March 2017 Ms Armstrong and the defendant had made an agreement. The defendant denied and denies he and Ms Armstrong executed any agreement. That conflict contributed to ill will between the plaintiff and the defendant and is referred to in the pleadings in this action.
In November 2017, the defendant and Ms Armstrong reached an agreement to resolve their property settlement dispute at a mediation conference in the Family Court.
The defendant and Ms Armstrong are now divorced.
The text messages which give rise to this action were sent by the defendant to Mr Quayle between 4 May 2017 and 3 July 2017. The plaintiff says that the defendant made the statement defamatory of him to Father Smith on 30 January 2017. The context suggests that the defendant's conversation(s) with Father Smith were later, but it does not matter for present purposes. The conversation(s) was, or were at least, some months before the property settlement agreement reached in November 2017.
Ms Armstrong says she became aware of the publications defamatory of her in July 2017. She instructed her solicitor to write to the defendant. On 21 July 2017 the defendant received a concerns notice sent on behalf of Ms Armstrong by her solicitor.
On 17 May 2017, Mr Quayle's wife forwarded to the plaintiff screenshots of text messages from the defendant to Mr Quayle which included the first and third matters complained of in the plaintiff's statement of claim. The defendant received a concerns notice sent on behalf of the plaintiff by his solicitor on 15 August 2017.
The plaintiff says that after the defendant and Ms Armstrong had reached a property settlement agreement in the Family Court in November 2017, he tried to resolve the defamation matter with the defendant but was unable to resolve the matter to his satisfaction.
History of the proceeding
The plaintiff and Ms Armstrong caused the court to issue the writ in this matter on 29 January 2018.
Ms Armstrong has taken no part in the proceeding subsequent to the issue of the writ. On 29 January 2019 Ms Armstrong filed a notice discontinuing the action against the defendant.
The plaintiff filed his original indorsement of claim on 29 January 2018. On 21 March 2018, the defendant filed a defence in which he admitted the publications to Mr Quayle but denied they gave rise to the imputations pleaded by the plaintiff. The defendant pleaded that each of the publications was on an occasion of qualified privilege and the circumstances of the publication were such that the plaintiff did not, or was unlikely to, sustain any harm as a result (the defence of triviality under s 33 of the Defamation Act 2005 (WA)). The defendant also pleaded that the imputations alleged to arise from the third, fourth and fifth matters complained of were true (the defence of justification). The defendant denied the publication to Father Smith and, in the alternative, pleaded that the publication was on an occasion of qualified privilege and pleaded the defence of triviality.
On 28 May 2018 the defendant amended his defence. The amended defence maintained the defences pleaded in the original defence and added further particulars of those defences.
The plaintiff 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. On 27 November 2018, I struck out paragraphs of the defendant's defence and, in particular, paragraphs pleading qualified privilege and justification.[2]
[2] Armstrong v McIntosh [2018] WASC 364.
The pleas of justification that I struck out were pleas justifying the imputations that 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; and
(c)has acted contrary to his Christian beliefs.
The only relevant conduct of the plaintiff alleged in the defendant's particulars of justification was that the plaintiff stated that an agreement had been executed between the defendant and Ms Armstrong when no such agreement had been executed. The defendant did not allege that the plaintiff made an intentionally false statement or made the statement intending to deceive anyone. I struck out the particulars of justification on the ground that they were not capable of establishing the pleaded imputations.
The defendant did not appeal that decision. The defendant did not re‑plead a defence of justification.
On 29 January 2019 the plaintiff filed an amended statement of claim. The amendments added further imputations alleged to arise from the pleaded publications.
On 12 March 2019 the defendant filed an amended defence. That defence did not plead defences of justification or qualified privilege.
On 7 May 2019, the defendant applied for an order that the action be stayed and/or dismissed on the grounds that the action is an abuse of process and/or fails to reach a threshold of seriousness.
Following a strategic conference on 2 July 2019, the defendant amended his defence on 19 July 2019 to plead two new defences. The first is that the plaintiff's claims should be dismissed or stayed on the basis that these proceedings have been commenced and maintained in abuse of process. The second new defence is that the plaintiff's claims should be dismissed or stayed on the basis the plaintiff's allegations do not surmount the necessary threshold of seriousness.
The pleadings
The plaintiff complains of five publications. The first, third, fourth and fifth matters complained of are text messages from the defendant to Mr Quayle, who the defendant says was his personal friend, confidante and advisor in relation to his separation from Ms Armstrong and is also a friend of Ms Armstrong. The plaintiff says that the defendant sent the four text messages to Mr Quayle on 30 January, 8 May and two on 3 July 2017 respectively. The defendant admits that he sent the text messages and that he sent them on the dates alleged by the plaintiff, except for the first text message which the defendant says he sent on 4 May 2017.
The first matter complained of is:
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 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 him. 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 the first matter complained of gives rise to the imputations that the plaintiff:
(a)is an evil person; and
(b)is a hypocrite in that he pretends to be a good person but, in fact, is evil.
The plaintiff also pleads an innuendo meaning that the plaintiff has acted in such an unchristian manner that his parish priest thinks ill of him. The extrinsic material, which is said to have been known to Mr Quayle and to give rise to the innuendo meaning, is that the plaintiff is a Catholic who regularly attends Our Lady of Grace Church in North Beach.
The third matter complained of is:
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 the third matter complained of gives rise to the imputations that 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; and
(c)conspired with two other people to engineer the ruination of the defendant by nefarious means.
The fourth matter complained of is:
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 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 that the fourth matter complained of gives rise to the imputations that the plaintiff:
(a)is a liar;
(b)is an aggressive person, because he picks fights with people; and
(c)is a sociopath in that he likes fighting with people, regardless of who gets hurt as a result.
The plaintiff pleads that the fourth matter complained of gives rise to the innuendo meaning that the plaintiff has acted contrary to his Christian beliefs. As with the first matter complained of, the extrinsic material said to give rise to the innuendo meaning is that Mr Quayle knew that the plaintiff is a Catholic who regularly attends Our Lady of Grace Church in North Beach.
The fifth matter complained of is:
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 assistant 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 says that the fifth matter complained of gives rise to the imputations that the plaintiff:
(a)is a liar; and
(b)is involved in a dispute with the defendant for his own egotistical purposes.
The defendant denies that the publications to Mr Quayle give rise to the imputations alleged by the plaintiff.
Further, in relation to each of the publications complained of the defendant pleads that the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives the following particulars in relation to that plea in respect of the publications to Mr Quayle. Mr Quayle and the plaintiff had no social, professional or other contact and Mr Quayle knew of the plaintiff's reputation and Mr Quayle was aligned with the plaintiff, Mr Quayle's wife and Ms Armstrong with the common objective of seeking to encourage a payment from the defendant to Ms Armstrong and, in the circumstances, the publication to Mr Quayle did not result in any diminution of the regard with which Mr Quayle held the plaintiff nor cause Mr Quayle to treat the plaintiff with hatred, contempt or ridicule or otherwise lowered the plaintiff in Mr Quayle's estimation or cause any loss or damage to the plaintiff's social or professional life.
The second matter complained of is that, on or around 30 January 2017, the defendant said to Father Smith: 'Paul Armstrong is a liar'. The plaintiff says that publication gives rise to the imputation that the plaintiff is a liar.
The defendant denies that he said to Father Smith: 'Paul Armstrong is a liar'.
Alternatively, the defendant says that the circumstances at the time of the alleged publication were such that the plaintiff was unlikely to sustain any harm as a result. The defendant gives two particulars. First, the alleged publication was only to Father Smith. Secondly, Father Smith knew the plaintiff closely as a regular parishioner of his church and through Father Smith's association with the plaintiff by acting on the church's finance committee together and Father Smith knew of the plaintiff's reputation and, in the circumstances, any publication to Father Smith from the defendant of the nature alleged would have been unlikely to, and did not, result in any diminution of the regard with which Father Smith held the plaintiff nor cause Father Smith to treat the plaintiff with hatred, contempt or ridicule or otherwise lower the plaintiff in Father Smith's estimation nor cause any loss or damage to the plaintiff's social or professional life.
The plaintiff claims aggravated damages. The plaintiff pleads that the conduct of the defendant, in publishing the matters complained of, and thereafter, has been in contumelious disregard of the plaintiff's rights. The plaintiff gives eight particulars of his claim for aggravated damages. First, the defendant published the matters complained of maliciously and spitefully with the intention of injuring the plaintiff's reputation and causing him distress and embarrassment. Secondly, the defendant employed language which was calculated to maximise the hurt, damage and distress that would be suffered by the plaintiff. Thirdly, the defendant knew, or ought to have known, that the imputations conveyed were false. Fourthly, the defendant intended that harm and damage would be caused to the plaintiff. Fifthly, by letter dated 15 August 2017 the plaintiff requested the defendant provide an appropriate apology. Sixthly, the defendant's solicitor's response was insulting in tone, failed to acknowledge the plaintiff had suffered any damage or hurt and asserted the imputations conveyed by the text messages were true. Seventhly, the defendant has failed to apologise.
The eighth particular of aggravated damages is the defendant's conduct of the litigation. The plaintiff says that the defendant filed and maintained a defence of justification to the third, fourth and fifth matters complained of in his defences of March 2018 and May 2018, and subsequently withdrew the defence of justification to the third and fourth matters complained of and to the imputation that the plaintiff is a liar in the fifth matter complained of, in circumstances where the defendant knew from the outset that such defences were bound to fail. Further, the plaintiff says that the defendant pleaded and then withdrew the plea of justification, that the plaintiff was a liar, in circumstances in which he had orally agreed with Ms Armstrong in or about March 2018 to pay her a financial settlement in the sum of $285,000. In effect, the plaintiff says the defendant knew that the defendant had spoken the truth about the oral agreement, made by the defendant and Ms Armstrong, and therefore knew the plaintiff was not a liar. Further, the plaintiff gave particulars in support of his plea of justification that the plaintiff is involved in a dispute with the defendant for his own egotistical purposes and that the plaintiff had instituted these proceedings not for the purpose of vindicating his reputation, but only for the purpose of the financial or legal destruction of the defendant. Further, the defendant gave particulars in support of his plea of justification that the plaintiff did not care that the children of the defendant might be hurt by the plaintiff commencing and prosecuting these proceedings to achieve his purpose of the financial or legal destruction of the defendant. Further, the defendant maintained in his application dated 7 May 2019 that the plaintiff has brought this action for the collateral purpose of the financial or legal destruction of the defendant and not for the purpose of vindicating the plaintiff's reputation. Finally, the defendant has maintained in his application for the action to be stayed or dismissed that the proceedings do not surmount the necessary threshold of seriousness thereby trivialising the damage to the plaintiff's reputation and the harm and distress caused to him by the defamatory matter published by the defendant.
The plaintiff pleads that the conduct of the defendant, in publishing the second matter complained of, has been in contumelious disregard of the plaintiff's rights, because the defendant published the second matter complained of for the sole purpose of causing damage to the plaintiff's standing in the parish of Our Lady of Grace, North Beach.
The defendant denies the matters pleaded by the plaintiff in support of his claim for aggravated damages.
In answer to the plaintiff's claim the defendant pleads two further defences. First, the defendant says that the plaintiff's claims should be dismissed or stayed on the basis these proceedings have been commenced and maintained in abuse of process. The defendant gives particulars that the plaintiff commenced and has maintained these proceedings for the predominant purpose of attacking or punishing the defendant and not to restore the plaintiff's reputation or for damages allegedly suffered by the plaintiff nor to restrain any further publication. Secondly, the defendant says the plaintiff's claims should be dismissed or stayed on the basis the plaintiff's allegations do not surmount the necessary threshold of seriousness.
The present application
The defendant's application of 7 May 2019 to stay or dismiss the action was brought on two grounds. First, the action is an abuse of process. Secondly, the action fails to reach a threshold of seriousness. The defendant swore an affidavit on 16 April 2019 in support of his application. The defendant swore that he believed the plaintiff commenced this action for the ulterior purpose of harming the defendant by causing him financial and emotional distress as retribution for his refusal to concede to the plaintiffs' demands in relation to the financial settlement with Ms Armstrong.
The defendant maintained that claim until he filed submissions on 12 September 2019. In those submissions, the defendant said that he presses the application that the action should be dismissed on the ground that the action fails to surmount the necessary threshold of seriousness and presses the application to stay or dismiss the action on the limited ground that it is an abuse of process because 'the resources of the Court and the parties that will have to be expended to determine the action are out of all proportion to the interest at stake'. The quotation is from the reasons for judgment of McCallum J in Bleyer v Google Inc.[3] The defendant does not press this application on the ground that the proceedings should be dismissed as an abuse of process because it has been commenced and/or maintained for an impermissible, ulterior or collateral purpose. The defendant says he will press that ground as a substantive issue at trial if the present interlocutory application is unsuccessful.
[3] Bleyer v Google Inc [2014] NSWSC 897 [62].
The law of defamation in Western Australia
The law of defamation is the common law except where modified by the Defamation Act. The common law distinguishes between defamation actionable without proof of special damage ('actionable per se') and defamation actionable on proof of special damage. The Defamation Act s 7 abolished the distinction between slander and libel and provides that the publication of defamatory matter of any kind is now actionable without proof of special damage.
The gist of the tort of defamation is injury to the plaintiffs' reputation and the associated injury to their feelings. The law presumes injury to the plaintiff's reputation and awards general damages in respect of it.
Meaning of 'defamatory'
The Defamation Act has retained the common law position that the defamatory matter, not the imputation arising from it, is the cause of action.[4] The common law test of defamatory meaning continues to apply. There is no one test for what is defamatory. The general test is whether a person's standing in the community, or the estimation in which people hold that person, has been lowered or whether the imputation is likely to cause people to think the less of that person.[5] The test is derived, at least in part, from the speech of Lord Atkin in Sim v Stretch[6] where his Lordship proposed the test: would the words tend to lower the plaintiff in the estimation of right thinking members of society generally?'
[4] See the inclusive, non‑exhaustive, definition of 'matter' in Defamation Act s 4.
[5] Radio 2UE Pty Ltd Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 [36] (French CJ, Gummow, Kiefel & Bell JJ); Trkulja v Google LLC (2018) 263 CLR 149, 178 fn 25.
[6] Sim v Stretch [1936] 2 All ER 1237, 1240.
In a joint judgment in the High Court in Trkulja v Google LLC[7] Kiefel CJ, Bell, Keane, Nettle and Gordon JJ stated the test for whether a published matter is capable of being defamatory:
The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of. In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, '[s]ome are unusually suspicious and some are unusually naïve'. So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.
As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking. He or she may be taken to 'read between the lines in the light of his general knowledge and experience of worldly affairs', but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions. Hence, as Kirby J observed in Chakravarti, '[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject'.[8]
[7] Trkulja v Google LLC (2018) 263 CLR 149.
[8] Trkulja v Google LLC [31] ‑ [32].
Damage to reputation
In Lachaux v Independent Print Ltd[9] Lord Sumption, with whom Lords Kerr, Wilson, Hodge and Briggs agreed, explained that Lord Atkin's definition of a defamatory statement, like other formulations in the authorities, turns on the supposed impact of the statement on those to whom it is communicated but that impact falls to be ascertained in accordance with a number of more or less artificial rules. Lord Sumption referred to three rules.[10] First, the meaning is not that which other people may actually have attached to it, but that which is derived from an objective assessment of the defamatory meaning that the notional ordinary reasonable reader would attach to it. Secondly, damage to the claimants' reputation is presumed rather than proved. It depends on the inherently injurious character (or 'tendency') of a statement bearing that meaning. Thirdly, the presumption is one of law, and irrebutable.
[9] Lachaux v Independent Print Ltd [2019] UKSC 27 [9].
[10] Lachaux [6].
At common law, harm which was less than serious gave rise to liability because damage to reputation was presumed from the words alone and might be different from any damage which could be established in fact. In Lachaux Lord Sumption hypothesised a circumstance where the words amount to a grave allegation against the claimant but they are published to a small number of people, or to people none of whom believe it, or possibly to people among whom the claimant had no reputation to be harmed.[11] Lord Sumption said that the law's traditional answer is that those matters may mitigate damages but do not affect the defamatory character of the words.
[11] Lachaux [16].
In Lachaux Lord Sumption explained that in two important cases the UK courts added a further requirement for a matter to be defamatory, namely that the damage to reputation must pass a minimum threshold of seriousness.[12]
[12] Lachaux [7].
The first was Jameel (Yousef) v Dow Jones & Co Inc.[13] The Saudi claimant issued defamation proceedings in England against the publisher of a US newspaper in respect of an article posted on an internet website in the USA, which was available to subscribers in England. The claimant alleged that the article, together with a list of names in an internet hyperlink referred to in the article, implied that he had been suspected of having been involved in funding a well-known terrorist organisation. The newspaper averred that only five subscribers within the jurisdiction had accessed the internet article, that the claimant had in fact suffered no or minimal damage to his reputation and that article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998 (UK), precluded him from relying on any legal presumption of damage to establish injury or harm. In interlocutory proceedings the judge refused the newspaper's application for summary dismissal of the claim, rejecting its contention that the claimant had no realistic prospect of success.
[13] Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946.
The Court of Appeal of England and Wales held that the presumption of damage formed part of the English law of libel and was not incompatible with article 10 of the Convention. Lord Phillips delivering the judgment of the court said that liability turned on the objective question whether the publication was one which tendered to injure the claimant's reputation. In the rare case where a claimant brought an action for defamation in circumstances where his reputation had suffered no or minimal actual damage that might constitute an interference with freedom of expression that was not necessary for the protection of the claimant's reputation. In such circumstances the defendants might seek to strike out the action as an abuse of process. The court struck out the claim as an abuse of process. If the claimant succeeded in his action and was awarded a small amount of damages, it could perhaps be said that he would have achieved vindication for the damage done to his reputation in England, but the damage and the vindication would be minimal. The cost of the exercise would have been out of all proportion to what had been achieved. It would be an abuse of process to continue to commit the resources of the court to an action where so little was now seen to be at stake.
In Lachaux Lord Sumption said that the effect of the decision in Jameel was to introduce a procedural threshold of seriousness to be applied to the damage to the claimant's reputation. Two things are clear from the language of Lord Phillip's judgment. One is that the threshold was low. The damage must be more than minimal. That is all. Secondly, the Court of Appeal must have thought that the operation of the threshold might depend, as it did in the case before them, on the evidence of actual damage and not just on the inherently injurious character of the statement in question.[14]
[14] Lachaux [8].
The second case was Thornton v Telegraph Media Group Ltd.[15] The defendant published in its newspaper and online a review of a book which had been written by the claimant, who was an author and academic. Part of the review asserted that in researching and writing her book the claimant had permitted interviewees to read what she had said about them and allow them to alter it. The claimant brought an action for libel contending, amongst other things, that that part of the review implied that she had engaged in a highly reprehensible practice known in the world of journalism as 'copy approval' and had thereby shown herself to be fatally lacking in integrity and credibility as a researcher and writer and this was a professional or business libel. Secondly, she contended that that part of the review went beyond objective criticism of her professional technique and amounted to a personal libel. The defendant applied for summary judgment in respect of that part of the review on the grounds that the claimant had no real prospect of succeeding in establishing that the relevant words were defamatory of her, submitting that the words complained of failed to surmount the minimum threshold of seriousness required to be satisfied in defamation claims.
[15] Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985.
Justice Tugendhat accepted that whatever definition of defamatory is adopted, it must include a qualification or threshold of seriousness, so as to exclude trivial claims. His Honour did so for two reasons. First, it is in accordance with the true interpretation of Lord Atkin's speech in Sim v Stretch and with the decision of Sharp J in Ecclestone v Telegraph Media Group Ltd.[16] Secondly, it is required by the development of the law recognised in Jameel as arising from the passing of the Human Rights Act: regard for article 10 and the principle of proportionality both require it. The judge said that the requirement of a threshold of seriousness explains why the law presumes that damage has been suffered by a claimant:
There is a further point to be noted if my conclusion in paras 90 and 92 is correct. If this is so, then it explains why in libel the law presumes that damage has been suffered by a claimant. If the likelihood of adverse consequences for a claimant is part of the definition of what is defamatory, then the presumption of damage is the logical corollary of what is already included in the definition. And conversely, the fact that in law damage is presumed is itself an argument why an imputation should not be held to be defamatory unless it has a tendency to have adverse effects upon the claimant. It is difficult to justify why there should be a presumption of damage if words can be defamatory while having no likely adverse consequence for the claimant. The Court of Appeal in Jameel (Yousef)'s case [2005] QB 946 declined to find that the presumption of damage was itself in conflict with article 10 (see para 37), but recognised that if in fact there was no or minimal actual damage an action for defamation could constitute an interference with freedom of expression which was not necessary for the protection of the claimant's reputation: … [94].
[16] Ecclestone v Telegraph Media Group Ltd [2009] EWHC 2779 (QB).
Justice Tugendhat's definition of 'defamatory' was:
The publication of which he complains may be defamatory of him because it (substantially) affects in an adverse manner the attitude of other people towards him, or has a tendency so to do.[17]
[17] Thornton v Telegraph Media Group Ltd [96] (emphasis in the original).
Justice Tugendhat held that the paragraph containing the copy approval allegation is not capable of being a personal libel; it is not capable of meaning that the claimant had done anything which in ordinary language could be highly reprehensible, or reprehensible at all, or of bearing any meaning defamatory of the claimant on a personal basis. Alternatively, if that conclusion is mistaken, the defamatory meaning falls below the threshold required for the words complained of to be capable of being defamatory of the claimant. Justice Tugendhat gave summary judgment for the defendant in relation to the words complained of relating to that part of the review.
In Lachaux Lord Sumption said that in allowing the application Tugendhat J had held that in addition to the procedural threshold recognised in Jameel there was a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of defamatory.[18]
[18] Lachaux [9].
Procedural basis of defendants' application
The first ground of the defendants' application is that the plaintiff's imputations arising from the publications complained of do not meet the necessary threshold of seriousness. At times counsel for the defendant made submissions, expressly or impliedly, to the effect that the matters complained of are not capable of giving rise to the pleaded imputations. However, the defendant has not applied to strike out the pleaded imputations on the ground that they are not capable of arising from the matters complained of. Therefore it is not open to the defendant in this application to contend that the matters complained of are not capable of giving rise to the imputations pleaded. The court will assume for the purpose of this application that the matters complained of are capable of giving rise to the pleaded imputations.
The basis of the defendants' 'threshold of seriousness' ground for dismissing the plaintiff's action is that the test of defamation carries a threshold of seriousness the same, or of a similar character, to the threshold found in the English common law test expounded in Thornton. The defendant's application is for summary dismissal of the plaintiff's action under Order 16 r 1 of the Rules of the Supreme Court 1971 (WA) (RSC), Order 20 r 19(1) or the inherent jurisdiction of the court.
In any event the test is the same. The court will only summarily dismiss the plaintiff's action if the defendant satisfies the General Steel[19] test that the plaintiff's case is so clearly untenable that it cannot succeed.
[19] General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 130.
In Trkulja v Google LLC Mr Trkulja commenced defamation proceedings against Google, a company domiciled in the United States, in Supreme Court of Victoria alleging that Google had defamed him by publishing images and text, including internet search engine results, which conveyed imputations, amongst others, that Mr Trkulja was a serious criminal and an associate of serious criminals. The originating process was served out of Australia on Google in the United States. Google applied to set aside the proceedings and their service out of the jurisdiction. The application was dismissed by the primary judge. The Court of Appeal allowed an appeal by Google on the ground that Mr Trkulja would have no prospect of success in establishing that the alleged matters conveyed any of the defamatory imputations pleaded. The High Court held that the Court of Appeal were wrong so to hold.
In a joint judgment Kiefel CJ, Bell, Keane, Nettle and Gordon JJ emphasised that it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation:
The question of whether words or images complained of are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer. It is, however, a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation. The potential for difference about the capacity of matters to convey different meanings is an equally strong reason for declining to set aside a proceeding on the basis that an impugned publication is incapable of bearing the defamatory imputation alleged. And it is to be remembered that on an application for summary dismissal such as this, the plaintiff's case as to the capacity of the publications to defame is to be taken at its highest.[20]
[20] Trkulja v Google LLC [30].
The High Court then held that the Court of Appeal had applied the wrong test in summarily dismissing the plaintiff's case:
Those conclusions [of the Court of Appeal] are unacceptable. As has been observed, the test of capacity of a published matter to defame is, in this case, whether any of the search results complained of are capable of conveying any of the defamatory imputations alleged. It is not, as the Court of Appeal stated, whether 'any of the defamatory imputations which are pleaded [are] arguably conveyed'. To express the test as the Court of Appeal did runs the risk (which appears to have eventuated) of judging the issue according to what the court may think the allegedly defamatory words or images say or depict rather than what a jury could reasonably think they convey.[21]
[21] Trkulja v Google LLC [52].
The same test must apply to an application to dismiss a claim on the ground that the words complained of fail to meet the threshold of seriousness. Therefore, the test of capacity to meet the threshold of seriousness is whether the matters complained of are capable of meeting the threshold of seriousness. It is not whether any of the matters complained of, surmount, or arguably surmount, the threshold of seriousness. To paraphrase the High Court, to express the test to be whether the matters complained of arguably reach the threshold of seriousness runs the risk of judging the issue according to what the court may think of the seriousness of the defamatory words rather than what a jury[22] could reasonably think. Whether or not the matters complained of meet the threshold of seriousness is a question for the jury.
[22] This matter has been listed for trial by judge alone. That does not alter the test of capacity to reach the threshold of seriousness.
I will first consider whether the test of defamation in Australia carries a seriousness threshold and then, assuming it does, apply the test to the plaintiff's claims in this case.
The basis of the defendants' abuse of process ground for dismissing the plaintiff's action is the Bleyer proportionality principle which has been described as the first application of the Jameel principle in Australia.[23] In Bleyer McCallum J held that in an appropriate case the Supreme Court of New South Wales has the power to stay or dismiss a proceeding on the basis that the resources of the parties and the court needed to determine the claim would be wholly disproportionate to the interests at stake. Her Honour found that the power was conferred by s 67 of the Civil Procedure Act 2005 (NSW) which provides that subject to the rules of court, the court may at any time and from time to time, by order, stay any proceedings before it, either permanently or until a specified day.
[23] Kim Gould 'Locating a Threshold of Seriousness' in the Australian Tests of Defamation (2017) 39 Sydney Law Review 333, 351.
The defendant submits that the source of the court's power to stay or dismiss the action on the ground of the 'proportionality principle' is the inherent power of the court to prevent its processes from being abused.
I will first consider whether in an appropriate case this court has the power to stay or dismiss a proceeding on the basis that the resources of the parties and the court needed to determine the claim would be disproportionate to the interest at stake. I will then consider, assuming it does, whether the court should exercise the power in this case.
Does the test of what is defamatory carry a seriousness threshold?
There are significant differences between the law of defamation in Australia and the law of defamation in England. Those difference include differences in the tests of defamation, (notwithstanding that the Radio 2UE Sydney general test is derived from Lord Atkin's 'low in the estimation of others' test), the absence of a Human Rights Act in Western Australia and the presence of the statutory triviality defence.[24] Nevertheless, a tenable argument may be made that the Australian common law tests of what is defamatory carry a Thornton type seriousness threshold inherent in their terms.[25]
[24] Gould, 347 ‑ 361.
[25] Gould, 361; Michael Douglas 'Reforming Defamation Law for the Digital Era: submission to the Defamation Working Party' [3.2].
Whether there exists a threshold of seriousness test in New South Wales was considered by McCallum J in Kostov v Nationwide News Pty Ltd[26] where her Honour said in obiter dicta, having considered the decision of Tugendhat J in Thornton, that a threshold of seriousness exists as an element of the cause of action in Australia. An application for leave to appeal was dismissed by the New South Wales Court of Appeal, although the court stated that if this was the primary ground upon which the proceeding had been dismissed it may have been sufficient to warrant a grant of leave.
[26] Kostov v Nationwide News Pty Ltd (2018) 97 NSWLR 1073 .
In Lesses v Maras[27] the Full Court of the Supreme Court of South Australia said:
The passage from the judgment of Tugendhat J relied on by Mr Lesses should be understood as merely an elucidation of the requirement that, to be defamatory, an imputation must tend to lower the estimation of the plaintiff by the community and an emphasis that an adverse opinion may be expressed about a person without its having such a tendency. The seriousness of the adverse opinion is obviously a factor to be taken into account in determining whether its expression does tend to lower the estimation of the plaintiff by the community. The passage should not be understood as creating an additional element of the cause of action for defamation.[28]
[27] Lesses v Maras (2017) 128 SASR 292.
[28] Lesses [125].
New South Wales academic Kim Gould argues that denying the threshold operates as 'an additional element of the cause of action for defamation' does not deny the possibility of the threshold being inherent in the defamation tests and further that a determination of the proper meaning and effect of Thornton regarding a 'seriousness threshold' does not necessarily determine the status of such a threshold for the Australian tests of defamation. Accordingly, Gould argues, the question of the existence of a threshold of seriousness in the defamation test in Australia is not answered in Lesses.[29]
[29] Gould, 334.
In Kostov McCallum J opined that Lesses does not derogate from the argument that a seriousness threshold test is part of Australian law. Her Honour said that whether the 'threshold of seriousness' is characterised as an additional element of the cause of action for defamation or simply an aspect of the defence of what is defamatory, the court in Lesses acknowledged that the 'seriousness' of an adverse opinion is 'obviously a factor to be taken into account' in determining whether an imputation meets the Sim v Stretch test. Further, her Honour said that the judgment in Lesses was after a trial and there is no reason not to extend that reasoning to a pre‑trial question as to whether an action can be maintained.[30]
[30] Kostov v Nationwide News Pty Ltd [40].
I will assume, without determining, that the threshold of seriousness is part of the test of what is defamatory or an element of the cause of action for defamation in Western Australia. Assuming the threshold of seriousness must be met, two relevant questions arise. First, must the statement complained of be inherently injurious, that is have a tendency to injure the plaintiff's reputation, or must it be shown to produce substantial harm in fact? It seems from the judgment in Thornton and its explication by Lord Sumption in Lachaux that the threshold is met if the statement complained of has a tendency to injure the plaintiff's reputation and it is not necessary for the plaintiff to establish that substantial harm in fact has resulted.
Secondly, what is the level at which the threshold is pitched? In Thornton Tugendhat J said that the threshold is that the publication must 'substantially' affect in an adverse manner the attitude of other people towards the plaintiff or has a tendency so to do.[31] Justice Tugendhat said that the definition of defamatory must include a threshold of seriousness so as to exclude 'trivial' claims. Justice Tugendhat also referred to a submission of counsel which in turn referred to the speech of Lord Atkin in Sim v Stretch where his Lordship said:
that juries should be free to award damages for injuries to reputation is one of the safeguards of liberty. But the protection is undermined when exhibitions of bad manners or discourtesy are placed on the same level as attacks on character, and are treated as actionable wrongs.[32]
[31] Thornton v Telegraph Media Group Ltd [96].
[32] Sim v Stretch (1242).
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 text messages are capable of meeting the threshold of seriousness
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.
Calling someone unchristian or saying that they have acted in an unchristian way or contrary to Christian beliefs almost always connotes that they are unkind, unfair or morally wrong and insensitive to others. To say that a person acted in a reprehensible manner itself is an adverse reflection on their character which is made worse by the assertion that the person acted so reprehensibly that he is not deserving of associating with others. The ordinary or popular meaning of conspiracy is a covert plan to do something unlawful or harmful. To say that a person conspired with others to engineer the ruination of a person is to attribute to that person bad and immoral actions and motives. To say that the person did it by nefarious means makes it all the worse.
To accuse someone of being a sociopath is to say that they have little or no conscience, they will lie, cheat and manipulate others for their own benefit; they know what they are doing, they just do not care because they do not think that way. In popular discourse egotistical has negative connotations ‑ it refers to people who think they are smarter and better than other people and never wrong. To say that someone engages in a dispute for that purpose is a slur on their character.
Perhaps the pleaded imputation least obviously defamatory on its face is that the plaintiff is an aggressive person because he picks fights with people. Nevertheless, aggressive behaviour has negative connotations, people avoid others who provoke or 'pick' fights ‑ it is regarded as a bad character trait.
What is defamatory revolves around the meaning of words which must be weighed against the context in which they are uttered. The defendant says that the context in which the matters complained of were published is that the impugned texts were sent to one person, were written in the difficult and charged environment of a matrimonial dispute in which the recipient and the plaintiff were actively involved participants, the texts specifically related to the discrete heated dispute in relation to whether a binding agreement had been concluded, which was an issue both sides took strong positions on including being indifferent to collateral damage caused to third parties, the recipient of the text making clear he did not believe the content but, rather, supported the position being taken by the opposing party who directly aligned with the plaintiff.
I am not satisfied that the matters complained of, in their context, are not capable of substantially affecting in an adverse manner the attitude of the person to whom they were sent to the plaintiff. The question is whether the publication has a tendency to injure the plaintiff's reputation not whether it has in fact caused substantial harm. Even though language and standards for defamation evolve and reflect the contemporary values, it is highly unlikely that calling someone a liar, evil, a hypocrite or a sociopath or saying that they acted in an unchristian way or reprehensibly or conspired to ruin the defendant or is involved in fights for egotistical purposes will not be harmful to the person's reputation.
The defendant emphasises that the publications were to one person who had little relationship with the plaintiff. Publication to one person may be trivial in one context but more serious than publication to many more in another. Much depends on the nature of the allegation and the identity of the person about whom and the person to whom it is made. To that extent the decision in each case is fact sensitive.
The defendant further emphasises that the publications were made in 'the difficult and charged environment of a matrimonial dispute in which the recipient and the plaintiff were active involved participants'. It does not necessarily follow that a recipient of derogatory words published to them of a third person takes them less seriously because the recipient knows that the publisher and the third person were involved in a dispute, even a heated dispute. In some circumstances a person is more likely to voice their true opinions when they are angry or involved in conflict than in other circumstances where social expectations and conformity cause them to stifle their true feelings. Again, it is fact sensitive.
The question in this application is the capacity for the matters complained of to meet the threshold of seriousness. It is not whether the plaintiff's reputation was in fact harmed.
It cannot be said that the matters complained of are incapable of substantially affecting the reputation of the plaintiff. The imputations are themselves serious. Whether or not the identity of the person about whom and the person to whom the imputations were made in the context in which they were made causes them not to meet the threshold of seriousness is a matter for the jury.
The second matter complained of is the statement that the plaintiff is a liar. On the face of it such a statement is defamatory and meets the threshold of seriousness. The defendant pleads that the circumstances at the time of the alleged publication were such that the plaintiff was unlikely to sustain any harm as a result. That is a matter for trial. The imputation that a person is a liar is sufficiently grave or serious to be capable of substantially affecting in an adverse manner the attitude of other people to the plaintiff. The statement does not lose that capacity when it is made to only one person where that person is the plaintiff's parish priest and the plaintiff is a regular member of the parish. It is capable of meeting the threshold of seriousness.
The plaintiff has not established that the matters complained of are not capable of meeting the threshold of seriousness. If the plaintiff's action is not otherwise dismissed, whether or not the matters complained of do meet the threshold of seriousness should be determined at trial.
Abuse of process
The defendant submits that the plaintiffs' claims in relation to each of the matters complained of should be stayed or dismissed on the ground that the resources of the court and the parties that would be expended to determine the claim are out of all proportion to the interests at stake, which the defendant describes as a species of abuse of process.
Both parties made extensive reference to the decision of the Court of Appeal of England and Wales in Jameel, in which the court stayed a defamation claim as an abuse of process on that basis. The conclusion of the court is succinctly stated by Lord Phillips who delivered the judgment of the court:
If the claimant succeeds in this action and is awarded a small amount of damages, it can perhaps be said that he will have achieved vindication for the damage done to his reputation in this country, but both the damage and the vindication will be minimal. The cost of the exercise will have been out of all proportion to what has been achieved. The game will not merely not have been worth the candle, it will not have been worth the wick.[36]
[36] Jameel [69].
The defendant relies on the decision of Justice McCallum in Bleyer. In his written submissions counsel for the defendant submitted that the decision in Bleyer substantially followed the decision in Jameel.
In Batistatos v Roads and Traffic Authority of New South Wales[37] Kirby J said that the common law has long been defensive of the right that all persons enjoy to have access to the courts and not to be denied such access save in the most exceptional circumstances.[38] Kirby J referred to Dey v Victorian Railway Commissioners[39] where Dixon J said:
A case must be very clear indeed to justify the summary intervention of the court … Once it appears that there is a real question to be determined whether of fact or law and that the rights of the parties depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process.[40]
[37] Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256.
[38] Batistatos v Roads and Traffic Authority of New South Wales [19], [159] citing Williams v Spautz (1992) 174 CLR 509, 519; Old UGC Inc v IRC (NSW) (2006) 227 ALR 190 [38].
[39] Dey v Victorian Railways Commissioners (1949) 78 CLR 62.
[40] Dey v Victorian Railways Commissioners (91); see also Webster v Lampard (1993) 177 CLR 598, 602.
In General Steel Barwick CJ affirmed that 'great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal'.[41] His Honour said this whilst acknowledging that there are cases where a defendant should be saved from the vexation of the continuance of useless and futile proceedings.
[41] General Steel (130).
The right of access to the courts is of course not an absolute right and it is established that it may be controlled by the courts amongst other things upon their inherent jurisdiction to strike out or stay proceedings which constitute an abuse of process. Nevertheless, that power should be exercised only in the clearest of cases.
As I have said, the defendant relies upon what might conveniently be described as the Bleyer proportionality principle. In Bleyer, Mr Bleyer commenced defamation proceedings against Google arising from seven search results generated by the search engine published to three people. Google submitted that the proceedings should be stayed or summarily dismissed on the ground that the claim did not disclose a real and substantial tort in New South Wales and was an abuse of process for four reasons:
(1)the Jameel proportionality principle is engaged ‑ there is a substantial disproportion between the cost of the exercise and conceivable vindication;
(2)Google is not a publisher of its search engine results webpage;
(3)the innocent dissemination defence under common law and s 32 of the Defamation Act applies; and
(4)a judgment in Mr Bleyer's favour will be unenforceable in the United States.
It was argued on behalf of Mr Bleyer that Jameel was to be distinguished because the court in Jameel was bound by the Human Rights Act to consider the need to protect the right to freedom of expression recognised in Article 10 of the Convention for the Protection of Human Rights and Fundamental Freedoms. Justice McCallum noted that the reasoning in Jameel focused primarily on proportionality and referred to the considerations raised by the Human Rights Act rather as a check or test of correctness of the conclusion it would otherwise have reached.
Justice McCallum said that the starting point in determining whether the New South Wales Supreme Court has power to stay or dismiss a defamation action as an abuse of process on the grounds that the legal costs and court resources that will be required to determine the claim are out of all proportion to the vindication of reputation sought is the relevant provisions of the Civil Procedure Act 2005 (NSW) and the Uniform Civil Procedure Rules 2005 (NSW) (UCPR). Her Honour found that s 67 of the Civil Procedure Act, which confers a general power, subject to the rules of court, to stay proceedings before the court, conferred on the court power to stay proceedings in which the resources required of the court and the parties to determine the claim are vastly disproportionate to the interests at stake. Her Honour referred to s 56 and s 60 of the Civil Procedure Act and then said there is ample authority in New South Wales for the proposition (for which no authority is needed in any event) that the just allocation of the finite resources of the court is a relevant consideration in the exercise of the court's authority, at least in civil matters. Her Honour said that once it was recognised that proportionality between the resources required to determine a claim and the interest at stake is relevant to the exercise of the court's procedural powers, it is a small and logical step to conclude that there will be cases in which the disproportion is so vast as to warrant the stay or dismissal of the proceedings. Her Honour referred to s 33 of the Defamation Act (the defence of triviality) and concluded that the existence of the statutory defence does not undermine and is not inconsistent with the exercise of a power to stay proceedings on that basis.
Justice McCallum concluded that the court has power, in an appropriate case, to stay or dismiss an action on the grounds that the resources of the court and the parties that will have to be expended to determine the claim are out of all proportion to the interest at stake. Her Honour said that such disproportionality can properly be regarded as a species of abuse of process. Her Honour added that cases in which a stay would be granted on the basis of disproportionality will be rare.
Justice McCallum concluded that Bleyer was an appropriate case to permanently stay the proceedings having regard to the following factors:
(1)three people had undertaken a search which produced the matches complained of and as to two of those it is clear that Google is not liable as a publisher;
(2)Google's conservative estimate of its likely costs of the proceedings is in the order of $370,000;
(3)the action raised complex issues ‑ there will at least be issues to be determined as to whether Google has a defence of innocent dissemination under s 32 of the Defamation Act and the availability of a defence under sch 5 cl 91 to the Broadcasting Services Act;
(4)if the plaintiff is successful he will be unable to enforce any award of damages, the interest at stake is the plaintiff's entitlement to vindicate his reputation in the eyes of one person.
Having regard to those matters Justice McCallum concluded that the resources of the court and the parties that will be expended to determine the claim are out of all proportion to that interest.
The Bleyer proportionality ground of abuse of process has been applied in New South Wales as a ground for staying or dismissing defamation proceedings by Justice McCallum in the Supreme Court.[42] The primary ground on which her Honour dismissed the proceeding was that the plaintiff sought to set up issues that had already been determined against her in earlier proceedings, but she sought to re‑ventilate those issues in a manner that would scandalise the courts in which those issues had been determined and therefore the court's procedures were being invoked for an improper purpose and had the tendency to bring the administration of justice into disrepute. Her Honour further applied the principles she had expounded in Bleyer and found that the plaintiff's interest at stake was so disproportionate to the resources that would have to be expended to determine the claim as to an amount to an abuse of process.
[42] XZ v Amazon (No 7) [2016] NSWSC 637.
The Bleyer proportionality ground of abuse of process has been applied by Gibson DCJ in the District Court of New South Wales in Ghosh v TCN Channel Nine Pty Ltd (No 4);[43] Freeburn v Cake Decorators Association (NSW) Inc (No 2);[44] Mohareb v Palmer (No 2);[45] Elzahed v Commonwealth of Australia;[46] Park v Lee[47] and Burns v Gaynor (No 2).[48]
[43] Ghosh v TCN Channel Nine Pty Ltd (No 4) [2014] NSWDC 151, but note that the Court of Appeal considered that the primary judge had not found disproportionality beyond 'want of due dispatch': Ghosh v Ninemsn Pty Ltd (2015) 90 NSWLR 595, 602 ‑ 603.
[44] Freeburn v Cake Decorators Association (NSW) Inc (No 2) [2014] NSWDC 173.
[45] Mohareb v Palmer (No 2) [2015] NSWDC 141.
[46] Elzahad v Commonwealth of Australia [2015] NSWDC 271.
[47] Park v Lee (2016) 22 DCLR (NSW) 250.
[48] Burns v Gaynor (No 2) [2019] NSWDC 552.
In Farrow v Nationwide News Pty Ltd[49] Basten JA expressed obiter support for the principle set out in Bleyer. In Khalil v Nationwide News Pty Limited (No 2),[50] Gibson DCJ said there is significant appellate authority which is not in accordance with the submission made in that case that 'the Jameel principle now forms part of the Australian common law'. Her Honour referred to decisions in New South Wales[51] and Queensland.[52] Her Honour continued:
That is not to say that, in rare cases … such an order cannot still be made. Bleyer v Google Inc is such a case, but this was not merely because only three persons read the matter complained of, but a series of compelling reasons, including enforcement issues in the foreign jurisdiction where the assets lay.[53]
[49] Farrow v Nationwide News Pty Ltd (2017) 95 NSWLR 612 [5].
[50] Khalil v Nationwide News Pty Limited (No 2) [2018] NSWDC 126 [40].
[51] Habib v Radio 2UE Pty Ltd [2009] NSWCA 231.
[52] Watney v Kencian [2017] QCA 116.
[53] Khalil v Nationwide News Pty Limited (No 2) [2018] NSWDC 126 [42].
It has been observed by McCallum J and others that it will only be in compelling circumstances that proceedings will amount to an abuse of process on the grounds of proportionality.[54]
[54] Brooks v Fairfax Media Publications Pty Ltd [2015] NSWSC 986 [21]; See for example, Gg Australia Pty Ltd v Sphere Projects Pty Ltd (No 2) [2017] FCA 664 [51] ‑ [52].
It has been observed that there are some aspects of the statutory context that were relevant to McCallum J's decision in Bleyer that are not present in other States or Territories, including Western Australia.[55] First, there is no statutory statement of overriding purpose equivalent to that in s 56 of the Civil Procedure Act. Second, there is no equivalent to s 60 of that Act relating to proportionality of costs. The absence of those features arguably makes it harder to reach the conclusion that the lack of proportionality between the costs and resources involved in the determination of the matter and significance of the subject matter of the dispute is such that the proceeding amounts to an abuse of process.
[55] See for example Lazarus v Azize [2015] ACTSC 344 [21] (Mossop AsJ).
The court has inherent jurisdiction or power to stay proceedings for abuse of process. The High Court has repeated that the categories of abuse of process are not closed.[56] In Ghosh v Miller (No 2),[57] Rothman J said that the concept of abuse of process includes pursuing proceedings for which there is no real prospect of those proceedings resulting in a remedy of substance which involve unjustifiable expense or use of judicial resources.
[56] Rogers v The Queen (1994) 181 CLR 251, 286; Batistatos [7] ‑ [15]; Moti v The Queen (2011) 245 CLR 456, 463 ‑ 464.
[57] Ghosh v Miller (No 2) [2017] NSWSC 791 [45].
Rules of court may be influenced by, and restate, the characteristics of the inherent power to stay for abuse of process.[58] RSC O 1 r 4B(1)(e) provides that the court will manage matters in the court in accordance with a system of positive case flow management with the object of ensuring the procedure applicable is proportionate to the value, importance and complexity of the subject matter in dispute. That rule is relevant to the exercise of the court's inherent power to stay for abuse of process.
[58] Batistatos [19].
Great care must be exercised in determining to strike out proceedings on the basis of abuse of process. Whether or not the continuation of the claims, or any of them, in this proceeding is an abuse of process must be considered by a close analysis of the evidence and the pleadings.
Second matter complained of - publication to Father Smith
The second matter complained of is that the defendant said to Father Smith:
'[The plaintiff] is a liar.'
The defendant says that he has a good defence on the merits; that he did not speak those words to Father Smith.
In his affidavit sworn on 16 April 2019 the defendant denies he spoke to Father Smith the words particularised at [6] of the amended statement of claim ‑ 'Paul Armstrong is a liar'.
Father Smith swore an affidavit on 5 June 2019 in which he verifies a statement he signed on 5 April 2019. In that statement Father Smith says that he met the defendant at the end of mass in or about early 2017. He recalls the conversation related to the separation of the defendant and Ms Armstrong and that the defendant was of the view the Armstrong family blamed him for the separation. Father Smith became aware that the defendant was married to the sister of the plaintiff who Father Smith has known since at least 2002 as a parishioner of the church. Father Smith says that:
During my conversation with [the defendant] I do not recall any derogatory comments or words against [the plaintiff]. I do recall during the conversation that [the defendant] was upset that, in his view, the Armstrong family had totally sided with [Ms Armstrong] as they were not aware of the full story between [Ms Armstrong], the defendant and their marital separation.
There is no direct evidence of the, or any, conversation between the defendant and Father Smith other than the evidence of the defendant and the evidence of Father Smith.
To prove the pleaded publication the plaintiff relies upon text messages from the defendant to Mr Quayle which are the first and fourth matters complained of. The first matter complained of includes:
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.
(the first statement)
The fourth matter complained of includes the sentence:
Their priest Father Richard knows about their lies.
(the second statement)
Where, as in this case, there is no admission by the defendant that he spoke the words complained of or words to like effect, in the defence or in his witness statement, the plaintiff must adduce evidence of what the defendant said and of who heard him.[59] Hearsay evidence, in the form of an admission by the defendant, is admissible as evidence of what the defendant said. But the actual words spoken must be proved.[60]
[59] Gatley, 12th ed, [32.13].
[60] Gatley, 12th ed, [32.13].
The requirement to prove the actual words spoken does not mean that there must be complete correspondence between the words pleaded and the words proved. As long as the words proved are substantially to the same effect as the words alleged, the plaintiff is entitled for the jury to decide whether the words alleged or words to the like effect have been proved.[61] If the words proved convey to the mind of a reasonable person practically the same meaning as the words set out, the variance will be immaterial.[62] However, if the words proved materially alter or qualify the sense of those set out in the statement of claim, the variance will be fatal to the plaintiff unless he can persuade the judge to grant him permission to amend the statement of claim. If the amendment would require the defendant to plead and prove new grounds of defence, it is unlikely that leave would be granted except perhaps on terms as to costs thrown away, as it would entail a lengthy adjournment of the trial.[63]
[61] Gatley, 12th ed, [32.14].
[62] Gatley, 12th ed, [32.14].
[63] Gatley, 12th ed, [32.15].
The facts and decision in Zameen Investments Inc Mohammed Rafiuddin v DF Brazier Builders Nicholas O'Hara‑Smith[64] illustrate the deficiencies in the plaintiffs' case. In his statement of claim in Zameen the plaintiff pleaded that the defendant spoke and published to a Detective Constable the following words:
Rafiuddin [the second plaintiff] is hiding behind his offshore company, Zameen Investments [the first plaintiff], so as to avoid paying our bills or being sued for them in England. They are committing fraud.[65]
[64] Zameen Investments Inc Mohammed Rafiuddin v DF Brazier Builders Nicholas O'Hara-Smith [1990] EWCA Civ JO320‑7.
[65] Zameen (78).
The only evidence of what was said was given by a Detective Sergeant who was present at the meeting. He said:
Q. What did Mr O'Hara‑Smith or Mr Brazier tell you about Zameen or Mr Raphudin? A. It was their belief that ‑ they were dealing with Mr Raphudin, but it was their belief that perhaps Mr Raphudin was in fact Mr Yussuf, who was a director of Zameen Investments but was not a resident of the UK (I believe he lived in the United Arab Emirates) and that in dealing with Mr Raphudin he in turn would pass on any correspondence to Mr Yussuf and then it would come back down the chain the other way and go back to Braziers.
Q. I appreciate it is now three years ago, but are you able to remember in any detail any particular words that the people there used to you in talking about Mr Raphudin or Zameen? A. Not really, no; just that there was a belief that perhaps Mr Raphydin was in fact Mr Yussuf and that the money was not being paid and perhaps he was evading his responsibility to pay the liability to them.
Q. What conclusion did they draw, from the information they were giving you? A. I am unable to say what they concluded. They gave the information to us and, as a result, we carried out some further enquiries.[66]
[66] Zameen (79).
The Detective Sergeant was referred to a formal letter of complaint to Scotland Yard. In relation to that letter the Master of the Rolls said:
… but one has to be very careful that you do not assume that the parties, in discussing the letter, and, in particular, the defendants, repeated the allegations made in the letter, because that would be to enable the plaintiffs to sue on the letter rather than on the allegation of slander which is alleged.[67]
[67] Zameen (80).
After the letter had been referred to, the Sergeant gave the following further evidence:
Q. Did they give any impression that they were making any other sort of allegation other than fraud? A. No.[68]
The Master of the Rolls said that by that answer the Detective Sergeant was saying that he received the impression that they were making an allegation of fraud.
[68] Zameen (80).
The Court of Appeal found that the evidence was not sufficient for the case to be left to the jury. The Master of the Rolls said that the Sergeant's evidence may well have been sufficient to establish that something was said about the plaintiff either being guilty of, or suspected of, fraud, but that is much too far removed from the allegation which was made. The pleading was an allegation of actual fraud, not a suspicion of fraud.
Lord Justice Woolf said that the evidence did not prove publication with a sufficient degree of certainty to justify the case being left to the jury. Woolf LJ said:
But at its highest what the Sergeant was doing was no more than to give evidence of what he considered was the impression made by what he was told rather than giving actual evidence of what was said.[69]
[69] Zameen (82).
Further, Woolf LJ said that the defamatory statement which was established was different from that which was alleged in the statement of claim. The nub of the fraud which was alleged in the statement of claim was that the plaintiffs were hiding behind an offshore company. The effect of the evidence of the Sergeant was that the second plaintiff was hiding by using a different identity. Woolf LJ said that on that basis as well he would regard the plaintiff as not having established a prima facie case.
Lord Justice Bingham said that it is necessary for the substance of the words spoken to be proved in evidence. The plaintiff's evidence had not established that the words pleaded had been published, nor did the evidence establish that words which were in substance the same as those pleaded had been published.[70]
[70] Zameen (83).
The statements relied upon by the plaintiff in this case are similarly insufficient to prove the alleged publication. The first statement clearly is not capable of establishing that the defendant spoke the words alleged. They make no reference to the plaintiff being a liar, or even that the plaintiff had told lies.
The second statement is not capable of proving the alleged publication with a sufficient degree of certainty to justify the case being left to the jury. First, the court must be very careful that it does not assume that in the defendant's text message to Mr Quayle he repeated what he said to Father Smith. The plaintiff separately is suing on the text message to Mr Quayle in the fourth matter complained of.
Secondly, the second statement does not expressly state, nor may it be inferred from the second statement, with a sufficient degree of certainty the substance of the words spoken by the defendant to Father Smith.
Thirdly, if the plaintiff is able to get over the difficulties with regard to establishing publication, on the evidence of the text message, the defamatory statement, which is established by the text message, is materially different from that which is alleged in the statement of claim. The words allegedly published are that the plaintiff 'is a liar'. The pleaded imputation is that the plaintiff 'is a liar'. The plaintiff has confirmed that the imputation is of a general charge of being a liar not a specific allegation of having told a lie.[71] I have previously struck out a pleading of the defendant on the grounds that particular, that during the settlement negotiations, the plaintiff and Ms Armstrong alleged to Mr Quayle that an agreement had been executed between Ms Armstrong and the defendant where no such agreement had been executed is not capable of proving the imputation that the plaintiff is a liar is true. The first ground on which I struck out those particulars is that the imputation pleaded is a general charge of lying, not a specific allegation of having told a lie. I found that a single instance of a false statement is not capable of justifying the general charge that the plaintiff is a liar.
[71] Armstrong v McIntosh [2018] WASC 364 [73].
The plaintiff says that there is sufficient evidence that the defendant said to Father Smith that the plaintiff is a liar, such that the court should not summarily dismiss the plaintiff's claim. The plaintiff says that there are inconsistencies between the evidence of Father Smith and of the defendant. Father Smith says in his affidavit that he only spoke with the defendant once and he does not recall the defendant uttering any defamatory comments or words against the plaintiff. That is inconsistent with the defendant's version. Father Smith says that his one conversation with the defendant did not affect his relationship with the Armstrong family or how he has always regarded them favourably. That is inconsistent with the defendant's version. The defendant is likely to have a better recollection of what took place between him and Father Smith than Father Smith. In earlier versions of the defence the defendant pleaded justification to the imputation that the plaintiff was a liar. The plaintiff says that triable issues are raised which should only be determined after the court has heard the evidence of the defendant and Father Smith, including their cross‑examination.
The evidence may not justify summary judgment under RSC O 16 in favour of the defendant, however, the defendant has a strong case. The plaintiff faces substantial obstacles to make out a case that his claim that the defendant published the second matter complained of should be left to the jury.
Even if the plaintiff proves publication, and his claim in relation to the second matter complained of is successful, at trial he would achieve minimal vindication. The defendant does not plead justification. The trial would proceed on the presumption that the defamatory allegation, if established, is untrue. The presumption of falsity does not leave the judge in a position to make a declaration that the allegation was false.
Importantly, the alleged publication was to one person ‑ Father Smith. Father Smith says that during his conversation with the defendant, he does not recall any derogatory comments or words against the plaintiff. Father Smith has not shared the contents of his conversation with the defendant with anyone. Father Smith has sworn that anything said by the defendant has not affected Father Smith's relationship with the plaintiff nor how Father Smith has always regarded the plaintiff favourably. There has been no damage to the plaintiff's reputation.
Aside from specific economic loss, general compensatory damages are awarded as a consolation for the personal distress and hurt caused to the plaintiff by the publication, as well as reparation for the harm done to the plaintiff's reputation and to vindicate the plaintiff's reputation.[72]
[72] Uren v John Fairfax & Sons Pty Ltd (1996) 117 CLR 118, 150; Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60.
In his affidavit sworn in June 2019, the plaintiff says that he suffered stress and hurt when he became aware that the defendant had spoken to Father Smith.[73] He does not say that he suffered hurt and distress as a result of being informed, or otherwise becoming aware, of the defendant saying to Father Smith on or about 31 January 2017: 'Paul Armstrong is a liar'. The plaintiff says that it has been very embarrassing and distressing for him to see Father Smith 'in the light of what the defendant said that Father Smith thinks of me, namely …'. The plaintiff then refers to the reference to the father of their church in the first matter complained of and the reference to Father Smith in the fourth matter complained of. The plaintiff says that it has been uncomfortable for him to sit on the finance committee with Father Smith in circumstances where the defendant maintains that Father Smith thinks that he (the plaintiff) has turned evil and is a liar, and the plaintiff does not know what the priest is thinking about him and his reputation.
[73] Affidavit of Paul Andrew Armstrong in opposition to defendant's application to dismiss action, sworn June 2019 [35] ‑ [38].
Two points must be made. First, the plaintiff is complaining about the first and fourth matters complained of and their impact on him ‑ not the second matter complained of. Secondly, the plaintiff now knows that nothing said by the defendant to Father Smith has affected Father Smith's relationship with the plaintiff or how Father Smith has always regarded the plaintiff favourably. The jury would not award other than nominal or modest damages to reflect the fact that the publication has not done any damage to the plaintiff's reputation. [74]
[74] Or the judge sitting without a jury.
Continuing the claim in relation to the second matter complained of does not serve the purpose of vindicating the plaintiff's reputation against the charge that he is a liar. There is no plea of justification. If the plaintiff's claim in relation to the second matter complained of continues to trial, the plaintiff will seek to establish that the defendant said to Father Smith that the plaintiff is a liar in circumstances where the defendant denies that he said those words and Father Smith has no recollection that the defendant said any derogatory comments or words against the plaintiff.
In the course of argument, counsel for the plaintiff said that in making the statement that he does not recall the defendant making any derogatory comments or words about the plaintiff, Father Smith may have been being diplomatic. That submission must be emphatically rejected. Father Smith has sworn on oath that during his conversation with the defendant, he (Father Smith) does not recall any derogatory comments or words against the plaintiff. However much Father Smith may wish to be diplomatic, he could not truthfully swear that he does not recall the defendant saying any derogatory comments or words about the plaintiff if he recalled that the defendant had said the plaintiff is a liar or words not materially different.
To succeed with his claim the plaintiff will have to establish that the defendant said to Father Smith words defamatory of the plaintiff, of which Father Smith has no recollection. Counsel for the plaintiff says that the plaintiff should have the opportunity to cross‑examine the defendant and Father Smith at trial. Cross-examining Father Smith to establish that words derogatory of the plaintiff were spoken to Father Smith, which words Father Smith does not presently recall, does not vindicate the plaintiff's reputation. Furthermore, for the plaintiff to recover anything more than nominal or very modest damages the plaintiff will have to seek to establish some damage to his reputation where the only person to whom the allegedly defamatory words were spoken presently holds the plaintiff in the same high regard he always has.
If the plaintiffs' claim in relation to the second matter complained of proceeds to trial it will add substantially to the costs of the trial. It is the only publication which is in issue. Substantial time would have to be expended by the parties at trial in seeking to establish that the alleged words were or were not spoken and, if the plaintiff maintains his reputation has been affected by the speaking of the alleged words, evidence to that effect. Further, substantial time will be taken in opening and closing submissions in relation to the factual and legal issues arising from the second matter complained of.
I conclude that the continuation of the plaintiff's claim to trial in relation to the second matter complained of is an abuse of the process of the court. That is not merely because any damages likely to be awarded to the plaintiff are disproportionate to the resources of the court and the parties likely to be expended at trial in determining the claim.
There are additional compelling reasons why the continuation of the claim is an abuse of the court process. First, the defendant has a strong case on the merits that the plaintiff will not prove with sufficient certainty that the defendant spoke to Father Smith words not materially different from those pleaded. Secondly, the continuation of the action will not vindicate the plaintiff's reputation. The truth of the imputation arising from the matter complained of is not an issue in the action. The plaintiff's reputation has not been damaged in the eyes of the only person to whom the alleged publication was made. Thirdly, ironically, the interest of the plaintiff in continuing the claim is to establish, contrary to the recollection of Father Smith whom the plaintiff holds in 'high regard', that the defendant defamed the plaintiff to Father Smith. Having regard to all of those matters the resources of the court and the parties that will be expended to determine the claim are out of all proportion to the interest at stake.
Claims in relation to publications to Mr Quayle
The defendant says that the plaintiff's claims in relation to the first and third to fifth matters complained of are an abuse of process for the following reasons.
First, the context of the publications was the notoriously difficult and charged environment of matrimonial separation and settling of financial arrangements following that separation.
Secondly, Mr Quayle was intimately involved with the interchange in his capacity as a friend and confidante of the defendant and as a friend of Ms Armstrong.
Thirdly, the context or environment was such that it was possible the parties involved could make statements 'in the heat of the moment'.
Fourthly, the texts were sent via private telephone text messaging.
Fifthly, the context must be taken into account in reviewing what Mr Quayle would have understood the words used in the texts to mean. In that context, and taking into account Mr Quayle knew at all times there was a heated dispute being engaged in on both sides in relation to whether any binding agreement had been concluded between the defendant and Ms Armstrong, it would have been understood there was some prospect that statements would have been made in the heat of the moment and would need to be viewed in that light.
Sixthly, in the texts the defendant said to Mr Quayle that it was going to be necessary for the Family Court to determine what was the truth. It is more likely than not that Mr Quayle understood the publications were not making a serious reputational attack on the plaintiff but were identifying the issue which would eventually have to be determined by the court.
Seventhly, the evidence establishes Mr Quayle did not believe the defendant's statements that no agreement had been entered into. Mr Quayle's text responses establish he did not believe the defendant's statements and preferred the statements of Ms Armstrong and, through her, the position of the plaintiff. It follows that the statements could not reasonably be contended as having affected the plaintiff's reputation or relationship with Mr Quayle.
Eighthly, the plaintiff has no professional or personal relationship with Mr Quayle. The plaintiff could suffer no genuine hurt or reputational damage because of anything said to Mr Quayle. Any award of damages would be nominal at best. Any assumption of damage is rebutted.
The defendant says that the resources of the court, and the parties to be expended in determining these claims by proceeding to trial, are out of all proportion to the interests at stake and, accordingly, the proceedings are an abuse of process.
I do not accept that submission. The first and third to fifth claims are relevantly different from the second claim. The matters complained of are contained in text messages which may be established with certainty. The plaintiff says that they give rise to serious imputations including that the plaintiff:
(a)is an evil person;
(b)is a liar;
(c)conspired with two other people to engineer the ruination of the defendant by nefarious means; and
(d)is a sociopath in that he likes fighting with people, regardless of who gets hurt as a result.
The defendant admits the publications. The defendant has not applied to strike out the imputations. The court must proceed, at this stage, on the basis that the pleaded imputations are capable of arising from the matters complained of.
The defendant's submissions make an assumption as to the value of the plaintiff's interest at stake which cannot be taken to be established at this stage of the proceeding. The plaintiff must be taken to have a prima facie case. The matters referred to by the defendant, if not the subject of further evidence, may lead to the inference that the first and third to fifth matters complained of have caused little, if any, damage to the plaintiff's reputation. However, evidence may be led at trial which gives rise to different inferences or findings. Without determining the case on the merits, it cannot be assumed, as the defendant asserts, that any award of damages would be nominal.
Conclusion
I am not persuaded that the proceedings in relation to the first and third to fifth matters complained of are an abuse of process.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MS
Associate to the Honourable Justice Le Miere22 OCTOBER 2019
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