Armstrong v McIntosh [No 4]
[2020] WASC 31
•7 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ARMSTRONG -v- MCINTOSH [No 4] [2020] WASC 31
CORAM: LE MIERE J
HEARD: 11 ‑ 15, 18 & 20 NOVEMBER 2019
DELIVERED : 7 FEBRUARY 2020
FILE NO/S: CIV 1120 of 2018
BETWEEN: PAUL ANDREW ARMSTRONG
Plaintiff
AND
GREGORY MCINTOSH
Defendant
Catchwords:
Defamation - Publication made by way of text messages - Identification - Meaning - Single Meaning Rule - Defamatory meaning - Threshold of seriousness - The Thornton principle
Defences - Triviality - Defamation Act 2005 (WA) s 33 - Turns on own facts
Abuse of process - Inherent common law power - Whether proceedings were commenced for an improper purpose - Turns on own facts
Damages - Damages where extent of publication narrow - Aggravated damages - Conduct which is improper, unjustifiable or lacks bona fides - Turns on own facts
Legislation:
Defamation Act 2005 (WA)
Result:
Judgment for the plaintiff
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):
Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225
Armstrong v McIntosh [2018] WASC 364
Armstrong v McIntosh [No 2] [2019] WASC 379
Barrow v Bolt [2015] VSCA 107
Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256
Broome v Cassell & Co Ltd [1972] AC 1027
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Chappell v Mirror Newspapers Ltd (1984) Aust Torts Reports 80‑691
Clark v Ainsworth (1996) 40 NSWLR 463
Crawford Adjusters Ltd v Sagicor Insurance Ltd [2014] AC 366
David Syme v Canavan (1918) 25 CLR 234
Dingle v Associated Newspapers Ltd [1961] 2 QB 162
Dowling v Colonial Mutual Assurance Society (1915) 20 CLR 509
Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675
Grainger v Hill (1838) 132 ER 769
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946
Jeynes v News Magazines Ltd [2008] All ER (D) 285
Jones v Sutton (2004) 61 NSWLR 614
King v Henderson [1898] AC 720
La Gleaner Co Ltd v Abrahams [2004] 1 AC 628
Lachaux v Independent Print Ltd [2019] 4 All ER 485
Lesses v Maras (2017) 128 SASR 292
Moti v The Queen (2011) 245 CLR 456
Nationwide News Pty Ltd v Warton [2002] NSWCA 377
Perkins v New South Wales Aboriginal Land Council (Unreported, NSWSC, BC 9708048, 15 August 1997)
PNJ v The Queen (2009) 252 ALR 612
Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460
Ratcliffe v Evans [1892] 2 QB 524
Reader's Digest Services Proprietary Limited v Lamb (1982) 150 CLR 500
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327
Rogers v The Queen (1994) 181 CLR 251
Rookes v Barnard [1964] AC 1129
Rufus v Elliott [2015] All ER (D) 244
Sim v Stretch [1936] 2 All ER 1237
Smith v Lucht [2017] 2 Qd R 489
Smith v Walker (1912) SC 224
Stocker v Stocker [2019] 3 All ER 647
Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 361 ALR 23
Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118
Wagner v Nine Network Australia [2019] QSC 284
Weatherup v Nationwide News Pty Ltd [2016] QSC 266
Williams v Spautz (1992) 174 CLR 509
Table of Contents
Summary
The plaintiff
The defendant
Ms Armstrong
Simon Quayle
Richard O'Loughlin
The matrimonial breakup and initial property division discussions
Mr O'Loughlin's intervention
Email exchange after Mr O'Loughlin's intervention
Defendant and Ms Armstrong attend counsellor
Was there an agreement?
The defendant emails Mr O'Loughlin
The first and third matters complained of
Ms Armstrong's lawyer prepares form 11 application for consent orders
Plaintiff's first phone call with Ian McIntosh
Defendant does not sign form 11 by deadline
Plaintiff's second phone call with Ian McIntosh
Plaintiff learns of the first and third matters complained of
Defendant puts forward new financial settlement proposal
The fifth and fourth matters complained of
Ms Armstrong sends concern notice
Ms Armstrong commences Family Court proceeding
Plaintiff sends concerns notice
Defendant and Ms Armstrong settle their property dispute
Plaintiff commences this action
Issues
Identification
Meaning
Defamatory meaning
Threshold of seriousness
The defence of triviality
The first matter complained of
The first matter complained of - identification
First matter complained of - meaning
First matter complained of - defamatory
First matter complained of - defence of triviality
Third matter complained of
The third matter complained of - identification
The third matter complained of - meaning
Third matter complained of - defamatory
Third matter complained of - defence of triviality
Fourth matter complained of
Fourth matter complained of - identification
Fourth matter complained of - meaning
Fourth matter complained of - defence of triviality
Fifth matter complained of
The fifth matter complained of - identification
Fifth matter complained of - meaning
Fifth matter complained of - imputation (b) is not justified
Fifth matter complained of - defence of triviality
Abuse of process
Abuse of process - principles
Defendant's case does not establish abuse of process
Abuse of process not made out on the facts
Damages - legal principles
Aggravated compensatory damages
Aggravating conduct relied on by plaintiff
Amount of damages
Injunction
LE MIERE J:
Summary
The plaintiff, Paul Armstrong, is the brother of Rebecca Armstrong who is the former wife of the defendant, Gregory McIntosh. The defendant and Ms Armstrong separated in November 2016.
In May and July 2017 the defendant sent four text messages to his friend, Simon Quayle. The plaintiff says that the text messages defame him and claims damages, including aggravated damages, and an injunction to restrain the defendant from making any further publications with the same defamatory meanings.
The defendant denies that the allegedly defamatory material refers to the plaintiff, denies that it carries the meanings alleged by the plaintiff, denies that it is defamatory of the plaintiff or meets the threshold of seriousness to be actionable and claims the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. In relation to one alleged meaning, the defendant says that if the text message carries the alleged defamatory meaning, then it is true.[1] The defendant says that in any event the plaintiff sustained no harm and if the plaintiff establishes any cause of action he should be awarded only nominal damages. Finally, the defendant argues that the plaintiff's action is an abuse of process and should be dismissed or permanently stayed.
[1] The defendant pleads that if the fifth matter complained of bears the meaning that the plaintiff is involved in a dispute with the defendant for his own egotistical purposes, which the defendant denies, it is true in substance and in fact.
I find:
1.the defendant published the matters complained of, of and concerning the plaintiff;
2.the words complained of give rise to the imputations pleaded by the plaintiff or imputations which are not substantially different, except for imputation 4(b);[2]
3.the imputations are defamatory of the plaintiff;
4.the imputations reach the necessary threshold of seriousness;
5.the defendant has not established that imputation 14(b), that the plaintiff is involved in a dispute with the defendant for his own egotistical purposes, is true;
6.the defendant has not established that the circumstances of publication are such that the plaintiff was unlikely to sustain any harm;
7.the defendant has not established that the plaintiff commenced or maintained this action in abuse of process;
8.the plaintiff is entitled to compensatory damages including aggravated compensatory damages;
9.the plaintiff will be awarded damages of $6,500, including aggravated compensatory damages of $1,500; and
10.the court will grant an injunction restraining the defendant from publishing the words complained of or any similar words defamatory of the plaintiff.
[2] The imputation pleaded at [4(b)] of the plaintiff's re-amended statement of claim is that the plaintiff is a hypocrite, in that he pretends to be a good person, but in fact, is evil.
The plaintiff
The plaintiff was 49 years old at the time of trial. He is, and has for some time, been a director of, and holds one third of the shares in, Read Corporate Pty Ltd, an investor relations and corporate communications firm. The company represents primarily small and mid‑cap resources companies in Western Australia. The plaintiff assists the company's clients with communications, preparing Australian Securities Exchange statements, managing media issues and dealing with shareholders, analyst institutions and other market participants.
The plaintiff started his career as a cadet journalist and then as a business journalist with The West Australian newspaper. The plaintiff worked for The Times of London as a senior business journalist and news editor and for The Evening Standard as a senior finance journalist before returning to Perth in 2003. The plaintiff was the business editor of The West Australian before being appointed editor of The West Australian, which was a position he held from 2003 to 2009.
The plaintiff has a reasonably close relationship with his sister, Ms Armstrong. He has assisted her financially on a couple of occasions in the past.
The plaintiff is an active, practising Catholic. This is important to him and relevant to issues in this action as I will explain later in these reasons. The plaintiff attended a Catholic school. He attends church at Our Lady of Grace in North Beach. The plaintiff's children are enrolled at the school affiliated with Our Lady of Grace parish. The plaintiff is, and has for some time been, a member of the Our Lady of Grace parish finance committee and is a member of the parish reading roster. The plaintiff has known the parish priest, Father Richard Smith, since 2007. The plaintiff regularly meets and talks to Father Smith particularly when he (the plaintiff) attends mass and meetings of the finance committee.
The plaintiff gave his evidence‑in‑chief in a straightforward manner. He made appropriate concessions in cross‑examination. He did not attempt to reconstruct evidence to advance his case. He frankly admitted to saying things to the defendant's brother, Ian McIntosh, which were intemperate and contrary to his interests. I find that the plaintiff was an honest witness and in general I accept his evidence.
The defendant
The defendant was 49 years old at the time of the trial. He is a qualified chartered accountant. He has worked for some years for the energy corporation Chevron as an LNG shipping commercial advisor. His work involves a lot of commercial agreements and negotiations. He represents Chevron on the North West Shelf Shipping Joint Venture.
The defendant met the plaintiff in around 2010 when Ms Armstrong introduced them. The plaintiff attended the wedding of his sister and the defendant. The plaintiff was the master of ceremonies at the wedding reception.
The defendant described his relationship with the plaintiff before the defendant's separation from Ms Armstrong as amicable. They really only saw each other at family social events.
The defendant mostly gave his evidence honestly. However, at times his evidence lacked candour and was manipulative in the sense that he sought to portray himself in the best possible light.
For example, the defendant was not candid about his meeting with Father Smith and what was said in that meeting. The defendant met Father Smith once. In his text message of 4 May 2017 to Mr Quayle the defendant said he had been talking to Father Smith regularly. That was a lie. The defendant well knew he had talked to Father Smith only once. In his evidence‑in‑chief the defendant said that his statement that he had been talking with the priest regularly was 'an exaggeration'. In cross‑examination it was put to the defendant that the statement was, to his knowledge, untruthful. The defendant replied: 'It was an exaggeration, and if you want to say it's untruthful, yes'. In answer to a further question, the defendant again said that he characterised his statement as an exaggeration before finally unequivocally admitting it was untruthful.
In his text message of 8 May 2017 to Mr Quayle the defendant said:
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.
In his evidence‑in‑chief the defendant said he did not intend those words to mean that all three of those people had done all three of those things. In cross‑examination the defendant said that Ms Armstrong and her father, Peter Armstrong, not the plaintiff, did the lying. I find the defendant's evidence disingenuous. The defendant was trying to avoid the inevitable conclusion that he had said that the plaintiff told lies. Furthermore, in his defence of 21 March 2018 and his amended defence of 28 May 2018, the defendant pleaded that the imputation that the plaintiff is a liar is true. The particulars given by the defendant included that during the settlement negotiations the plaintiff alleged certain settlement terms had been agreed when those terms had not been agreed.
At times the defendant tailored his evidence to avoid saying things he perceived, rightly or wrongly, to be adverse to his case. For example, in the course of cross‑examination counsel asked the defendant whether he thought it was true that Ms Armstrong and the plaintiff are always fighting. Rather than directly answer the question the defendant said:
I just want to know whether you're going to accuse me of aggravated damages … if I try to defend myself in any way …
The defendant's evidence was characterised by self‑righteous indignation. One example is the defendant's evidence concerning the first text message complained of. In the plaintiff's concerns notice, the plaintiff said that the publication gave rise to the meaning that the plaintiff is an evil person. In his response to the plaintiff's concerns notice, the defendant denied that the publication gave rise to that imputation, and stated that if the plaintiff commenced legal proceedings then the defendant would rely on the defence of justification. In cross‑examination it was put to the defendant that in his response to the plaintiff's concerns notice, the defendant had said that if the plaintiff instituted proceedings the defendant would prove it was true that the plaintiff is an evil person. In response the defendant said the imputation is invalid, he did not believe that was the meaning of what he had said and he did not believe it is about the plaintiff. The defendant then said that if those defences failed then:
If I have to prove that those things are true then I will have a go at ‑ then I reckon there's probably some validity in the words that you're saying, not me. I'm not saying those words, but if you're saying those words then I reckon there could be some validity in that.
He was then asked if he had any basis for being able to prove that the plaintiff was an evil person. The defendant said:
God. To say someone is evil ‑ I don't say anyone's ‑ I've never said anyone's evil anyway so I just don't know what … I actually don't want to inflame things by ‑ by trying to now sit on this stand and talk about him in this way … This is a crazy action. This is stupid, and we shouldn't even be here, but I just want us all to get along with our lives. … I'm not going to sit here and try and say to you now ‑ you're trying to get me to talk about him being evil. Why? … I don't see the point in that.
In his mind, his allegation that he would prove it was true that the plaintiff is an evil person was the fault of the plaintiff and his solicitors ‑ it was they who made the allegation and, in effect, forced him (the defendant) to say that it was true.
I approach the defendant's evidence with caution when it is inconsistent with the evidence of another witness.
Ms Armstrong
Ms Armstrong is referred to in some communications as Bec. Ms Armstrong was an honest witness. She admitted saying things that were intemperate or even inflammatory and when she could not recall conversations, she conceded that she might have said things put to her.
Simon Quayle
Two of the defendant's friends, Simon Quayle and Richard O'Loughlin, play a significant role in the events giving rise to this action. The defendant met Mr Quayle in 1988 and they became close friends. Mr Quayle attended the defendant's first wedding. Mr Quayle was a groomsman at the defendant's second wedding, his marriage to Ms Armstrong. The defendant regarded Mr Quayle as his second closest friend.
Mr Quayle was the coach of the Kingsley Football Club. He was in Bali with members of the club when a number of them were killed in the Bali bombings. Mr Quayle received recognition for his efforts in searching for missing team mates. He subsequently started his Speak from the Heart project. The defendant believed that Mr Quayle encouraged people to share their thoughts and concerns to promote their mental health. The defendant spoke to Mr Quayle a lot at times from 2014 through to 2016 about many things. The defendant regarded Mr Quayle as a confidant and advisor.
Mr Quayle was a credible and reliable witness. I accept his evidence.
Mr Quayle's wife, Norrie Quayle, was a friend of the defendant and Ms Armstrong, but particularly Ms Armstrong, until their separation.
Richard O'Loughlin
The defendant's closest friend was Richard O'Loughlin. Mr O'Loughlin met the defendant at university in 1988. They have been 'best mates' since then. Mr O'Loughlin was best man at both of the defendant's weddings. Mr O'Loughlin said that he and the defendant have shared lots of information about family, friends and relationships over the last 30 years. In 2017 Mr O'Loughlin was vice president of business development and growth at Woodside. He knew Ms Armstrong who was then an executive assistant at Woodside.
Mr O'Loughlin was an honest witness. However, he did not have a very detailed recollection of his discussions with the defendant and Ms Armstrong in March 2017 when he (Mr O'Loughlin) decided to try and help the defendant and Ms Armstrong resolve their property dispute. Furthermore, his perception of events is coloured by his friendship with the defendant. I accept the general effect of Mr O'Loughlin's evidence but not necessarily his evidence of the detail of what was said in his discussions with the defendant and Ms Armstrong in March 2017.
The matrimonial breakup and initial property division discussions
The defendant married Ms Armstrong on 31 August 2014. They separated on 11 November 2016.
On 31 January 2017 the defendant proposed to Ms Armstrong two alternative property settlements. The first alternative was that they sell the house and divide the sale proceeds in accordance with the shares they had each contributed to the mortgage ‑ Ms Armstrong 28% and the defendant 72%. The second alternative was that the defendant buy out Ms Armstrong's interest in the house for 28% of its value ascertained by a valuation. After conferring with the plaintiff, Ms Armstrong responded by rejecting the defendant's proposals and putting forward a proposal of her own. Ms Armstrong proposed that the defendant pay her $350,000 and she transfer her interest in the house to him. Ms Armstrong said that if the defendant agreed with that proposal then he would receive a letter from her lawyer requesting that he complete a legally binding affidavit declaring all of his assets and providing relevant documents. Ms Armstrong would provide the same information.
The defendant gave evidence that there was a heated conversation between the defendant and Ms Armstrong on the morning of 1 February to the following effect. Ms Armstrong said that her family was furious with the defendant. Ms Armstrong said that the plaintiff was determined to destroy the defendant and there was not a thing he could do to stop it and the defendant was 'fucking screwed'.
Ms Armstrong did not recall the conversation. She denied that she said that the plaintiff was determined to destroy the defendant. She agreed that at the time she and her family were furious with the defendant.
The plaintiff said he had no recollection of having said those things to Ms Armstrong at the time but he agreed that he was very upset with the defendant at that time.
I find that the plaintiff was angry with the defendant, and Ms Armstrong said to the defendant words to the effect that her family was furious with him but I am not satisfied that the plaintiff said to Ms Armstrong words to the effect that he was determined to destroy the defendant.
In February and March there were further communications between the defendant and Ms Armstrong about the division of their property.
Mr O'Loughlin's intervention
In February and March the plaintiff was admitted to hospital four times. On 13 March, he was admitted to hospital after suffering a stroke. Mr O'Loughlin decided to try and help the defendant and Ms Armstrong resolve their property dispute. Mr O'Loughlin, Ms Armstrong and the defendant each gave evidence concerning discussions variously between Mr O'Loughlin, the defendant, Ms Armstrong and Ceri Newnham, who like Ms Armstrong was an executive assistant at Woodside. There are some conflicts in their evidence. It is unnecessary to determine those conflicts or to determine precisely what occurred.
It is sufficient to find, and I do find, the following. Mr O'Loughlin encouraged the defendant to resolve his property dispute with Ms Armstrong. The defendant said to Mr O'Loughlin that he (the defendant) was willing to pay Ms Armstrong $285,000. Mr O'Loughlin caused Ms Newnham to speak to Ms Armstrong. Ms Newnham said to Ms Armstrong that she had been approached by Mr O'Loughlin and he (Mr O'Loughlin), wanted to know if she (Ms Armstrong) would take a settlement of $285,000. Ms Armstrong said yes. Ms Armstrong said that she wanted to be in the house by herself for two weekends so that she could pack and then she would move out. Ms Newnham informed Mr O'Loughlin that Ms Armstrong agreed with the figure of $285,000 and of the time Ms Armstrong wanted to pack up her things and move out of the house. Mr O'Loughlin informed the defendant of Ms Armstrong's response. The defendant said he was fine with that.
The defendant says that everything had to be put into a written agreement. Mr O'Loughlin says the defendant was fine with the proposal on the proviso that it was documented and written down.
Email exchange after Mr O'Loughlin's intervention
On 21 March the defendant emailed Ms Armstrong stating, amongst other things:
Now that we have come to an agreement on the payment that I will make to you …
The defendant said that the appropriate time for him to transfer the funds to Ms Armstrong was the same time that the title of the house transfers to him. The defendant said that for the transfer to take place they would need consent orders to be prepared by a lawyer and approved by the Family Court. The defendant said that might take a few weeks and conscious of Ms Armstrong's need for money as quickly as possible to put down a deposit on another house, he wondered if it might help if he could pay her an interim amount of say $50,000 with a balance payable on transfer of the title.
Ms Armstrong replied by an email of 22 March 2017 in which she acknowledged the defendant's offer to give her an advance of $50,000 to assist with purchasing a house but said that that does not help her in any way. Ms Armstrong requested that the defendant 'transfer the full agreed amount of $285,000 to me ASAP', said she understood the defendant wanted to ensure that he was covered legally and that she would be happy to sign a document that legally holds her accountable to signing the consent orders and transferring the deeds to the defendant once finalised. Ms Armstrong said that if the defendant transferred the funds by Friday (24 March) she could be out of the house by Sunday, 2 April.
The defendant responded by an email 18 minutes later stating that it was not reasonable for Ms Armstrong to demand payment from him before the transfer of title takes place. The defendant said:
There is nothing stopping you from getting finance for another property if you have cash in your bank and a debt of $235K owing to you.
The defendant added:
If you can't exit the house by Sunday, then the whole agreement is off and we'll be back to going through the lawyers.
Defendant and Ms Armstrong attend counsellor
The defendant suggested that he and Ms Armstrong meet with a counsellor to mediate a conversation between them. The defendant and Ms Armstrong met with a Chevron employee assistance programme counsellor on 23 March. Ms Armstrong says that at the meeting they discussed what portion of the agreed $285,000 the defendant would pay her before she moved out of the house. Ms Armstrong says that at the meeting the defendant offered to pay her $160,000 up front and then the balance of $125,000 after she had signed the documents to transfer the title of the house. The defendant says that no agreement was reached at the meeting.
The following day, 24 March, Ms Armstrong sent an email to the defendant in which she said she had considered his offer and was willing to take an advance payment of $160,000 with the remaining $125,000 payable on transfer of the title of the house. She said that her brother, the plaintiff, would draw up a contract and if the defendant was happy to sign the contract and transfer the funds at that time then she would be out of the house by Sunday, 2 April.
The defendant responded later that day saying he was pleased that they were 'getting general alignment on the way forward'. He said that he was disappointed Ms Armstrong was not planning to be out of the house by Sunday 26 March as that was the date originally proposed and was of fundamental importance to his agreement to the package that had been proposed. He said that he was wondering whether it might be possible for Ms Armstrong's move to be finalised next Friday (31 March) as it might be easier for the funds transfer to be made on a business day rather than a weekend.
On 27 March, the defendant emailed the plaintiff stating that Ms Armstrong had asked him (the defendant) to channel any further communication they have through him (the plaintiff). The email referred to house contents to be divided between the defendant and Ms Armstrong and said he (the defendant) understood that the plaintiff had taken the lead in getting a lawyer to draft an agreement to reflect the path forward.
There were subsequent emails between the defendant and the plaintiff about the division of the house contents. On 30 March, the defendant emailed the plaintiff asking when the draft agreement might be available for review. Later that day the defendant emailed the plaintiff saying that he had 'been on the phone with the NAB to ask about how I might be able to arrange a redraw/transfer of funds to Bec' and that it was necessary for both the defendant and Ms Armstrong to authorise the withdrawal. The defendant asked if it would be 'okay if we do the bank transfer upon the agreement being signed'.
On 2 April, Ms Armstrong moved out of the matrimonial home.
Was there an agreement?
The defendant and Ms Armstrong commenced negotiating a property settlement in January 2017. The defendant suggested two alternative financial settlements. The first was that they sell the house and divide the sale proceeds. The second was that the defendant retain the house and buy out Mr Armstrong's interest in the house. Ms Armstrong proposed that the defendant buy out her interest in the house. Thereafter they negotiated a buy out price.
By 21 March, the defendant and Ms Armstrong had agreed that the defendant would pay Ms Armstrong $285,000 in consideration for her interest in the house. I find that at their meeting on 23 March with the Chevron counsellor, the defendant and Ms Armstrong discussed the defendant paying Ms Armstrong $160,000 up front, that is in advance of Ms Armstrong's interest in the house being transferred to him, and the balance of $125,000 after she signed the transfer document. Ms Armstrong agreed to that proposal by her email of 24 March. The defendant agreed to that proposal by his emails of 24, 27 and 30 March.
At that time the defendant and Ms Armstrong had agreed upon the major terms of their financial settlement. However, Ms Armstrong's email of 24 March said that the plaintiff would draw up a contract and if the defendant was happy to sign the contract and transfer the funds at that time then she would move out of the house by Sunday 2 April. Ms Armstrong moved out of the house on Sunday 2 April but no contract had been signed.
Whether or not the defendant and Ms Armstrong had made a legally binding agreement is a question of intention, objectively ascertained from the language they used or inferred from their conduct. The email communications between the defendant and Ms Armstrong indicate that they had reached agreement on the major terms of a financial settlement but intended to postpone the creation of a binding agreement until their agreement was formally documented.
Ms Armstrong and the plaintiff maintained and maintain that Ms Armstrong and the defendant had reached an agreement. The defendant maintained and maintains there was no enforceable agreement. The plaintiff and Ms Armstrong on the one hand and the defendant on the other hand had a different understanding of the same situation. The plaintiff and Ms Armstrong believe, correctly, that Ms Armstrong and the defendant had reached agreement on the major terms of a financial settlement ‑ that the defendant would buy out Ms Armstrong's interest in the house for $285,000 ‑ and that Ms Armstrong had moved out of the house in the expectation that the agreement would be legally documented and carried into effect. The defendant believes, correctly, that no binding and enforceable legal agreement had been made.
The defendant emails Mr O'Loughlin
When Ms Armstrong moved her effects out of the matrimonial home, a TV antenna booster was inadvertently removed.
The defendant messaged the plaintiff asking if a TV antenna booster had accidentally been taken during Ms Armstrong's move and saying that it was necessary for TV reception in the house
Over the following days there were several text messages between the defendant and the plaintiff about the TV antenna booster. On 11 April, the plaintiff messaged the defendant that the removalists had put the TV antenna booster in a drawer at the back of the storage shed. Further, the plaintiff informed the defendant that he (the plaintiff) had told Ms Armstrong that if the defendant executes tranche 1 of the agreement this week, her offer on the house she wanted to buy can be binding, they will let her move some stuff into the garage and she will be able to retrieve the antenna booster.
On 11 April, the defendant messaged the plaintiff asking that the plaintiff return or replace the antenna booster by midday Friday (14 April). That same day the defendant sent two text messages to his friend, Mr O'Loughlin, which disclose his state of mind. The defendant said:
Getting no co‑operation from Bec/Paul on getting the tv signal booster back. I'm ready to pull the pin on the whole agreement with her. My lawyer looked at the figures and reckons I should only be paying her about $150K. One element of how I justified to myself to pay her the outlandish figure she wanted was that I didn't want her to be bad mouthing me to friends etc … but I'm seeing more and more evidence of the extent she seems to be going to to discredit me. I just got a message from Paul saying they would only return my signal booster when I paid her. She's already fucked my life up and now she's continuing to twist the knife. Fuck her. They can go fucking jump. Fuck the bitch. I pray to God that she drives into a fucking tree and dies a horrible long painful death. I hate her more than I've ever hated anyone or anything.
Mr O'Loughlin replied, 'Mate, this is not like you, apart from TV antenna are you okay?' The defendant responded:
I'd be fine if that whore and her fuckhead brother would be half reasonable. I hate her. I really, really hate her. She's the most horrible person to have ever lived. I really hope she dies.
The following day, 12 April, the plaintiff responded to the defendant's email requesting the return or replacement of the booster with a message: 'How's the paperwork going?' The defendant sent another message to Mr O'Loughlin:
As expected nothing from Paul to suggest they are willing to give my things back. Completed the consent order forms this arvo … and amended the payments to reflect the $250 reduction [for replacement of the TV antenna booster]. If they change it back I won't pay them a cent. A quick fact if anyone ever talks about our split … from the time we joined up to the time we split my net worth will have decreased by $260K. Meanwhile hers has gone up by $125K. I'll try to let it go, but I do hope people realise the hit that I've taken. I've lost a third of my net worth that should have gone to my boys when I'm gone … and yet they can't even co‑operate to return stuff that they shouldn't have taken. They are low life scum without an ethical or moral bone in their collective bodies. On another subject, I'll be notifying BUPA tomorrow that they can remove Bec from our family health cover that I am paying … and the next call I make will be to the tax office to report the tax fraud that Paul engages in.
The first and third matters complained of
In mid‑April, the defendant and Mr Quayle exchanged text messages. On 19 April, Mr Quayle messaged the defendant: 'Until this whole saga is done and dusted I'm staying away'. The defendant responded saying, amongst other things:
It just doesn't seem very fair that you guys will listen to Bec's side of the story but not mine. The few snippets that you've sent me over the last six months only confirm to me that you definitely don't know the whole story and you've even misinterpreted some of the things I've said to you. I'm assuming Bec's kept you up to date on the stuff that Paul has been doing to us. I've heard from others that he's gloating about what they've extracted from me and the boys and also the other totally unnecessary damage and hurt that they are causing us. I can't imagine Bec driving that stuff but it's sad that she'd indorse Paul doing that to us.
Mr Quayle responded:
Don't know anything about Paul and gloating.
The defendant responded saying amongst other things:
With all due respect, there's a lot you don't know mate.
On 4 May 2017, the defendant sent to Mr Quayle the text message which is the first publication complained of in this action. I will refer to it in greater detail later. It is sufficient to note at this time that it started:
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.
The message went on to say things adverse to Ms Armstrong's family including that the father of their church is extremely disappointed in them and he has helped the defendant to understand the reasons why seemingly nice people can turn evil.
On 8 May, the defendant sent to Mr Quayle the text message which is the second publication now complained of in this action. It is referred to in the statement of claim as the third matter complained of because the plaintiff initially complained of another publication. The plaintiff's claim in respect of that publication has been dismissed. For convenience, I will continue to refer to the text message as the third matter complained of.
In the text message the defendant complained of the way he had been treated by Ms Armstrong, the plaintiff and their father, Peter Armstrong. The defendant said, amongst other things, 'they've plotted, schemed and lied to engineer my downfall for Bec's benefit'.
Ms Armstrong's lawyer prepares form 11 application for consent orders
On 9 May, the plaintiff's lawyers sent to the defendant's lawyers a Family Court form 11 application for consent orders and minute of consent orders 'reflecting the agreement reached between the parties for your consideration'. The plaintiff's lawyers stated that the agreement was that the defendant retain the matrimonial property, the defendant pay Ms Armstrong $285,000 to be paid by a first instalment of $160,000 upon Ms Armstrong signing the form 11 and the balance to be paid upon Ms Armstrong transferring her interest in the property to the defendant and otherwise each party would retain all the assets in their respective name or control. The letter requested that the defendant sign and return the form 11 within seven days, that is, by 16 May.
Plaintiff's first phone call with Ian McIntosh
On 10 May, the defendant's brother, Ian McIntosh, who I will refer to as Ian, telephoned the plaintiff. The plaintiff says that Ian said to him that he (Ian) was concerned about the welfare of his brother (the defendant), and that Ms Armstrong had told Ian that the plaintiff had recently seen the defendant in the street. Ian asked the plaintiff if he knew of the defendant's whereabouts. The plaintiff says that Ian asked what was the state of play in respect of the settlement discussions and negotiations and the plaintiff told Ian that there was a deadline of sorts to settle the matter which would expire in about a fortnight. Ian asked the plaintiff to call him when that deadline passed. The plaintiff agreed to do so.
Ian's evidence, which I also accept, is that the plaintiff also said things to the following effect. The defendant and Ms Armstrong had reached a financial agreement. The defendant had agreed to pay an amount of money. If the defendant did not pay the money by the deadline, there would be ramifications. The plaintiff said 'we are going to destroy Greg if the payment is not made'. Ian finished the call by asking the plaintiff to call him if he had any information or came across any information about the defendant's whereabouts or wellbeing.
The reference to a deadline is a reference to the defendant signing the form 11 application for consent orders by 16 May.
Defendant does not sign form 11 by deadline
On 16 May, the defendant's lawyers wrote to Ms Armstrong's lawyers stating that the defendant did not accept some of the assertions made in the form 11, that the defendant does not accept Ms Armstrong's valuation of the former matrimonial property and sought Ms Armstrong's consent to appoint an independent residential property valuer to provide a sworn valuation of the property.
Plaintiff's second phone call with Ian McIntosh
On 17 May, the plaintiff telephoned Ian. Ian says that in the course of the telephone call the plaintiff said things to the following effect. The agreement deadline had passed and the actions he (the plaintiff) had referred to in the earlier call were now going to take place. The plaintiff said 'not only are we going to destroy Greg, we are going to take him down'. The plaintiff said 'we are going to ruin his life'. The plaintiff said 'we're going to undertake some court proceedings'. The plaintiff said 'we are going to take out some defamation proceedings based on some messages'. The plaintiff said the reason that they were going to take defamation proceedings was that the defendant had reneged on the agreement to pay the money. The plaintiff said he had $50,000 or $100,000 to throw at this proceeding. The plaintiff said they were going to move Ms Armstrong back into the matrimonial home. The plaintiff mentioned they were going to subpoena the defendant's parents' Centrelink records because there was some sort of dodgy dealing that was going to be uncovered. He said he was going to subpoena all of the defendant's former wife's financial records because he was making sure that nothing untoward was happening with finances. The plaintiff said 'I do not care if the boys are hurt, because I don't give a fuck about the boys'. The plaintiff said 'we're going to destroy Greg financially or legally'. Ian asked that if the defendant honoured the agreement was there still a chance of heading off the actions that the plaintiff had said he would take. The plaintiff said no. One of the last things the plaintiff said was 'I want you to understand that I'm not threatening anyone, but I want you to know that we've got him marked'.
Ian says that he contacted the defendant and informed him (the defendant) of his conversation with the plaintiff. The defendant told Ian that no such agreement had been made.
In general I accept Ian's evidence. The plaintiff agrees with much of that evidence. The plaintiff was angry and spoke in anger. I find that the plaintiff did say words to the effect that the defendant had reneged on the agreement, that Ms Armstrong would take proceedings in the Family Court which would go to trial, that Ms Armstrong would take defamation proceedings against the defendant, that the plaintiff would financially support Ms Armstrong in bringing legal proceedings and that they were going to financially and legally destroy the defendant. I find that the plaintiff did not say that he would bring defamation proceedings against the defendant. The phone call occurred before the plaintiff had received from Mrs Quayle copies of the text messages of 4 and 8 May 2017 from the defendant to Mr Quayle and before the defendant had sent to Mr Quayle the text messages of 3 July 2017 which are the basis for the plaintiff's defamation claims.
Plaintiff learns of the first and third matters complained of
Later on 17 May, that is, after the plaintiff's telephone conversation with Ian, Mrs Quayle forwarded to the plaintiff text messages that the defendant had sent to Mr Quayle including the first and third matters complained of.
On 17 May, there were more text messages between the defendant and Mr Quayle.
Defendant puts forward new financial settlement proposal
On 8 June 2017, the defendant wrote to his lawyer enclosing an amended form 11. The defendant said: 'as drafted the form 11 would have me paying Rebecca $210,000 (compared to the sum of $285,000 she has been demanding, and that she considers was agreed)'.
The fifth and fourth matters complained of
On 3 July, the defendant sent a text message to Mr Quayle which is the fifth matter complained of. Although this text message is described as the fifth matter complained of, the text message was sent before the text message which is described in the statement of claim as the fourth matter complained of. The message commenced 'There is no agreement'. It went on to refer to 'Bec's sense of entitlement and Paul's need to fuel his ego' and that the defendant would love to further enlighten Mr Quayle but he would save that for a time when Mr Quayle was not 'blinded by Armstrong lies'.
Later that day the defendant sent another text message to Mr Quayle which is the fourth matter complained of. The message referred to the plaintiff picking fights everywhere and with everyone and said that their priest knows about their lies.
Mr Quayle responded to the fourth matter complained of by a further text message of 3 July:
Lot of bull crap and shit in those txt's. Don't send me any more crap please mate.
Complete bull shit about Marilyn and Spike and nonsense about the agreement when Bec left the house. You're painting Bec to be a liar and manipulator which she's not.
I personally don't care if you or her don't settle. You will suffer the emotional drain.
Ms Armstrong sends concern notice
On 21 July 2017, Ms Armstrong's solicitor sent a concerns notice in the form of a letter to the defendant referring to seven text messages published by the defendant between 30 January 2017 and early July 2017.[3] The concerns notice stated the defamatory imputations that Ms Armstrong alleged arise from each of the publications she complained of. The concerns notice demanded that the defendant cease publishing the defamatory imputations, undertake not to republish the imputations or similar imputations, provide an apology to Ms Armstrong in terms to be agreed and submit a reasonable offer for compensation to reflect the damage caused by the publications.
[3] A concerns notice is a written notice which informs the publisher of the defamatory imputations that the aggrieved person considers are or may be carried about the aggrieved person by the matter in question ‑ see Defamation Act s 14(2).
Ms Armstrong commences Family Court proceeding
On 3 August, Ms Armstrong commenced proceedings against the defendant in the Family Court of Western Australian in which she sought a property settlement.
Plaintiff sends concerns notice
On 15 August, the plaintiff's solicitor sent a concerns notice in the form of a letter to the defendant's solicitor. The concerns notice referred to the text messages complained of in this proceeding and the defamatory imputations which the plaintiff said they give rise to. Those imputations are essentially the same as the imputations pleaded by the plaintiff in this action. The concerns notice stated that the imputations are without any factual basis and demanded that the defendant desist from further publishing the defamatory imputations, undertake not to republish the imputations, provide an apology in terms to be agreed and submit a reasonable offer for compensation to reflect the damage caused by the publications.
On 30 August, the defendant's solicitor replied to the 15 August concerns notice from the plaintiff. The defendant's solicitor's letter included statements to the following effect. The defendant denies that any of the publications complained of are defamatory or that the alleged imputations arise. The plaintiff is unlikely to prove that he has sustained any harm as a result of the publications. The defendant will rely on the defences of justification pursuant to s 25 of the Defamation Act 2005 (WA) and triviality pursuant to s 33 of the Act.
Defendant and Ms Armstrong settle their property dispute
After a mediation conference in the Family Court on 10 November, the Family Court, by consent, made orders in respect of a financial settlement between the defendant and Ms Armstrong.
Plaintiff commences this action
In December 2017 and January 2018, there were without prejudice negotiations between the plaintiff and the defendant in an effort to settle the plaintiff's claim in relation to the allegedly defamatory matters complained of. Those negotiations did not result in any agreement. On 29 January 2018 the plaintiff commenced this action.
Issues
The following issues arise in relation to each of the publications which the plaintiff claims defame him:
1.Do the words complained of refer to the plaintiff?
2.Do the words complained of give rise to the imputations pleaded by the plaintiff or imputations not substantially different?
3.Are the imputations defamatory of the plaintiff?
4.Do the imputations reach the necessary threshold of seriousness?
5.Has the defendant established that the imputation pleaded in [14(b)] of the statement of claim, that the plaintiff is involved in a dispute with the defendant for his own egotistical purposes, is true?
6.Has the defendant established that the circumstances of publication are such that the plaintiff was unlikely to sustain any harm?
7.Has the defendant established that the plaintiff's claims should be dismissed or stayed on the basis that the plaintiff commenced and has maintained this action in abuse of process?
8.Is the plaintiff entitled to aggravated damages?
9.If the plaintiff is entitled to damages, what is the amount of damages that should be awarded to the plaintiff?
10.Should the court grant an injunction restraining the defendant from further publishing the words complained of or any similar defamatory matter?
Before considering these issues in relation to each of the publications complained of, I will address some relevant legal principles relating to those issues.
Identification
The plaintiff must prove that the defamatory matter was about him. The question is whether the words would be understood by reasonable people to refer to the plaintiff, subject to the qualification that where the words are published to persons who have special knowledge, the issue will be decided by reference to what reasonable persons possessing that knowledge would have understood by them.[4]
[4] David Syme v Canavan (1918) 25 CLR 234, 238 (Isaacs J).
Meaning
Whether a defamatory meaning or imputation arises is reached in two stages. First, the court must determine as a matter of fact whether the meaning contended for by the plaintiff is contained in the matter complained of, applying the standard of the ordinary and reasonable person. Secondly, the court must decide whether, applying the standard of the ordinary reasonable person, that meaning is defamatory.
The law of defamation adopts the 'single meaning rule'. The 'single meaning rule' is that notwithstanding that different people might understand a statement in different ways the court must arrive at one single meaning. The single meaning rule was recently discussed by Lord Kerr in Stocker v Stocker.[5] Having said that it is for the judge (as the tribunal of fact) to decide which meaning to choose, Lord Kerr said that guidance as to how the judge should set about that mission was provided in Jeynes v News Magazines Ltd[6] where Sir Anthony Clarke MR set out the essential criteria:
(1) The governing principle is reasonableness. (2) The hypothetical reasonable reader is not naïve, but he is not unduly suspicious. He can read between the lines. He can read in an implication more readily than a lawyer and may indulge in a certain amount of loose thinking, but he must be treated as being a man who is not avid for scandal and someone who does not, and should not, select one bad meaning where other non‑defamatory meanings are available. (3) Over-elaborate analysis is best avoided. (4) The intention of the publisher is irrelevant. (5) The article must be read as a whole, and any 'bane and antidote' taken together. (6) The hypothetical reader is taken to be representative of those who would read the publication in question. (7) In delimiting the range of permissible defamatory meanings, the court should rule out any meaning which, 'can only emerge as the produce of some strained, or forced, or utterly unreasonable interpretation …' (see Eady J in Gillick v Brook Advisory Centres approved by this court [2001] EWCA Civ 1263 at para [7] and Gatley on Libel and Slander (10th edn), para 30.6). (8) It follows that 'it is not enough to say that by some person or another the words might be understood in a defamatory sense.' Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 per Lord Halsbury LC at 73 [14].
[5] Stocker v Stocker [2019] 3 All ER 647, [32] ‑ [38], (Lord Reed DP, Lady Black, Lord Briggs & Lord Kitchin agreeing)
[6] Jeynes v News Magazines Ltd [2008] All ER (D) 285.
Lord Kerr adopted a rider to the second of these criteria applied by Sharp LJ in Rufus v Elliott[7] where she said:
To this I would only add that the words 'should not select one bad meaning where other non-defamatory meanings are available' are apt to be misleading without fuller explanation. They obviously do not mean in a case such as this one, where it is open to a defendant to contend either on a capability application or indeed at trial that the words complained of are not defamatory of the claimant, that the tribunal adjudicating on the question must then select the non-defamatory meaning for which the defendant contends. Instead, those words are 'part of the description of the hypothetical reasonable reader, rather than as a prescription of how such a reader should attribute meanings to words complained of as defamatory': see McAlpine v Bercow [2013] EWHC 1342 (QB), paras [63] to [66]. [11]
[7] Rufus v Elliott [2015] All ER (D) 244.
Lord Kerr explained that where a range of meanings is available and where it is possible to select one meaning which is not defamatory among a series of meanings which are, the court is not obliged to select the non‑defamatory meaning. The test is: what would the ordinary reasonable reader consider the words to mean. Simply because it is theoretically possible to come up with a meaning which is not defamatory, the court is not impelled to select that meaning.[8]
[8] Stocker v Stocker [37].
In determining the meaning of words, and whether they are defamatory, it is necessary to take into account their context. The defendant relies particularly upon three circumstances.
The first circumstance is that the publications were made to one person, Mr Quayle, who was a close friend of the defendant.
The defendant regarded Mr Quayle as a confidant and advisor in relation to the defendant's separation from Ms Armstrong. Mr Quayle ended his friendship with the defendant as a result of Mr Quayle's perception of the defendant's conduct in relation to the separation and the defendant's communications with Mr Quayle in relation to that separation.
The meaning that is conveyed by any particular words is to be determined by an objective test, that is, by the meaning in which the ordinary reasonable person would understand them. The only qualification to that rule is that where words are published to a person with knowledge of extrinsic facts, that knowledge may be taken into account in determining the objective meaning of the words complained of.
The second circumstance relied upon by the defendant is that the defendant sent the text messages whilst, to the knowledge of Mr Quayle, he (the defendant) was engaged in the 'very charged, highly emotional environment of a matrimonial break up'. I accept that Mr Quayle's knowledge of the matrimonial break up and the events following it are a relevant circumstance. However, it does not necessarily follow that a recipient of derogatory words published to them of a third person takes those words less seriously because the recipient knows that the publisher and the third person were involved in a dispute, even a highly charged, emotional matrimonial 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.
The text messages complained of in this action do not appear to be spontaneous emotional outbursts. They appear to be reflective, considered statements.
The third circumstance referred to by the defendant is that the defendant communicated each message by a text message and that text messages:
'are somewhat more loose and should be treated in some ways like conversations rather than considered writings and considered writings between parties solicitors or legal matters … and they're designed to be, as it were, parties standing in front of each other and having a conversation.'
Texting is different from face to face conversation. Texting lacks many of the social cues used in face to face conversations. When speaking people convey information with eye gaze, facial expressions, tone of voice, pauses and so on. A text message which contains only words conveys its meaning solely by the words.
In Stocker v Stocker, the allegedly defamatory material was contained in a Facebook post. Lord Kerr emphasised that the primary role of the court is to focus on how the ordinary reasonable reader would construe the words and this highlights the court's duty to step aside from a lawyerly analysis and to inhabit the world of the typical reader of a Facebook post. His Lordship said that to fulfil that obligation the court should be particularly conscious of the context in which the statement was made.[9]
[9] Stocker v Stocker [38].
Lord Kerr made observations about a Facebook post or a tweet on Twitter which I will set out in full:[10]
[10] Stocker v Stocker [41] ‑ [46].
The advent of the 21st century has brought with it a new class of reader: the social media user. The judge tasked with deciding how a Facebook post or a tweet on Twitter would be interpreted by a social media user must keep in mind the way in which such postings and tweets are made and read.
In Monroe v Hopkins [2017] EWHC 433 (QB), [2017] 4 WLR 68, Warby J at para [35] said this about tweets posted on Twitter:
'The most significant lessons to be drawn from the authorities as applied to a case of this kind seem to be the rather obvious ones, that this is a conversational medium; so it would be wrong to engage in elaborate analysis of a 140 character tweet; that an impressionistic approach is much more fitting and appropriate to the medium; but that this impressionistic approach must take account of the whole tweet and the context in which the ordinary reasonable reader would read that tweet. That context includes (a) matters of ordinary general knowledge; and (b) matters that were put before that reader via Twitter.'
I agree with that, particularly the observation that it is wrong to engage in elaborate analysis of a tweet; it is likewise unwise to parse a Facebook posting for its theoretically or logically deducible meaning. The imperative is to ascertain how a typical (ie an ordinary reasonable) reader would interpret the message. That search should reflect the circumstance that this is a casual medium; it is in the nature of conversation rather than carefully chosen expression; and that it is pre‑eminently one in which the reader reads and passes on.
That essential message was repeated in Monir v Wood [2018] EWHC 3525 (QB), [2019] All ER (D) 31 (Jan) where at para [90], Nicklin J said, 'Twitter is a fast moving medium. People will tend to scroll through messages relatively quickly.' Facebook is similar. People scroll through it quickly. They do not pause and reflect. They do not ponder on what meaning the statement might possibly bear. Their reaction to the post is impressionistic and fleeting. Some observations made by Nicklin J are telling. Again, at para [90] he said:
'It is very important when assessing the meaning of a Tweet not to be over-analytical. … Largely, the meaning that an ordinary reasonable reader will receive from a Tweet is likely to be more impressionistic than, say, from a newspaper article which, simply in terms of the amount of time that it takes to read, allows for at least some element of reflection and consideration. The essential message that is being conveyed by a Tweet is likely to be absorbed quickly by the reader.'
And Nicklin J made an equally important point at para [92] where he said (about arguments made by the defendant as to meaning), '… these points only emerge as a result of close analysis, or someone pointing them out. An ordinary reasonable reader will not have someone by his/her side making points like this.'
A similar approach to that of Nicklin J had been taken by Eady J in dealing with online bulletin boards in Smith v ADVFN plc [2008] EWHC 1797 (QB), [2008] All ER (D) 335 (Jul) where he said (at paras [13] to [16]):
'[13]It is necessary to have well in mind the nature of bulletin board communications, which are a relatively recent development. This is central to a proper consideration of all the matters now before the court.
[14]… Particular characteristics which I should have in mind are that they are read by relatively few people, most of whom will share an interest in the subject‑matter; they are rather like contributions to a casual conversation (the analogy sometimes being drawn with people chatting in a bar) which people simply note before moving on; they are often uninhibited, casual and ill thought out; those who participate know this and expect a certain amount of repartee or "give and take".
…
[16]… People do not often take a "thread" and go through it as a whole like a newspaper article. They tend to read the remarks, make their own contributions if they feel inclined, and think no more about it.'
The text messages complained of are different from spontaneous, informal text messages often sent to family or friends. Each of them is comparatively long and contains structured and grammatically correct statements. An ordinary reader would read the text messages as considered statements.
Nevertheless, an ordinary reader of a text message does not subject the message to a close analysis. They do not have someone by their side pointing out the possible meanings that might, theoretically, be given to the text.
Defamatory meaning
The Defamation Act does not define what is defamatory. What is defamatory is determined by the common law. There are many formulations of the test for determining what is defamatory. The most common or orthodox is whether the words tend to lower the plaintiff in the estimation of right thinking members of society generally.[11] In 2009, in Radio 2UE Sydney Pty Ltd v Chesterton,[12] the High Court enunciated what it referred to as the general test for defamation. 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 the imputation is likely to cause people to think the less of a plaintiff.[13] In doing so the High Court was concerned to reject the notion that there is a separate head of defamatory meaning relating to business defamation which had arisen from the New South Wales Court of Appeal's decision in Gacic v John Fairfax Publications Pty Ltd.[14] In discussing the general test as to what is defamatory the High Court approved the test whether the words tend to lower the plaintiff in the estimation of right thinking members of society generally stated by Lord Atkin in Sim v Stretch,[15] acknowledging that the term 'right thinking' is understood to refer to ordinary reasonable people of ordinary intelligence, experience and education.[16]
[11] Sim v Stretch [1936] 2 All ER 1237, 1240 (Lord Atkin).
[12] Radio 2UE Sydney Pty Ltd v Chesterton (2009) 238 CLR 460 (Radio 2UE) (French CJ, Gummow, Kiefel & Bell JJ).
[13] Radio 2UE.
[14] Gacic v John Fairfax Publications Pty Ltd (2006) 66 NSWLR 675.
[15] Radio 2UE [4].
[16] Radio 2UE [38].
The test for defamation does not require that the plaintiff's reputation has actually been harmed, it is sufficient that there is a tendency or likelihood that the words will lower the plaintiff in the estimation of right thinking members of society generally[17] or is likely to cause people to think the less of a plaintiff.[18]
[17] Sim v Stretch [1240] (Lord Atkin).
[18] Radio 2UE [36].
Threshold of seriousness
The defendant pleads that the plaintiff's claims should be dismissed on the basis that the imputations alleged by the plaintiff do not surmount the necessary threshold of seriousness. The United Kingdom courts have developed two bases for dismissing claims brought by plaintiffs who suffer minimal harm.
The first is that the plaintiff's claim may be struck out on the basis that continuing the claim would be a disproportionate use of judicial resources because no real and substantial tort has been committed. This principle was recognised by the Court of Appeal of England and Wales in Jameel (Yousef) v Dow Jones & Co Inc.[19] The effect of this decision was to introduce a procedural threshold of seriousness to be applied to the damage to the plaintiff's reputation. In Lachaux v Independent Print Ltd,[20] Lord Sumption said that two things are clear from the leading judgment of Lord Phillips of Worth Matraveras MR in Jameel. First, the threshold is low. The damage must be more than minimal. That is all. Secondly, the operation of the threshold might depend on the evidence of actual damage, and not just on the inherently injurious character of the statement in question.[21]
[19] Jameel (Yousef) v Dow Jones & Co Inc [2005] QB 946.
[20] Lachaux v Independent Print Ltd [2019] 4 All ER 485.
[21] Lachaux v Independent Print Ltd (489).
The second basis is that the plaintiff's claim will fail if the publication does not satisfy the threshold requirement that the meaning of the words have a tendency to cause reputational harm. This principle was expounded by Tuggendhat J in Thornton v Telegraph Media Group Ltd.[22] In Lachaux Lord Sumption said that the principle from Thornton is that there is a substantive threshold of seriousness to be surmounted before a statement could be regarded as meeting the legal definition of defamatory. Tuggendhat J's definition was that a statement may be defamatory of the plaintiff because it substantially affects, in an adverse manner, the attitude of other people towards him, or has a tendency so to do.[23] That is a test derived from the judgment of Lord Atkin in Sim v Stretch.
[22] Thornton v Telegraph Media Group Ltd [2011] 1 WLR 1985.
[23] Thornton v Daily Telegraph Media Group Ltd [96].
The Thornton principle (substantive threshold of seriousness), only considers the meaning of the words published, and deals with claims which are not actionable because the meaning of the publication does not meet the required standard of seriousness to be defamatory. By contrast, the Jameel principle (procedural threshold of seriousness) deals with claims which are actionable on their face, but the use of court resources in pursuing the claim would be disproportionate to what is at stake.
In the course of his submissions, counsel for the defendant tended to fuse the two principles and focus on the defendant's case that no reputational harm was caused to the plaintiff. However, the two principles are distinct. The Thornton principle places a burden of proof on the plaintiff, unlike the Jameel principle. Importantly, the Thornton threshold has a narrower scope than the Jameel principle: it is concerned only with the meaning of the words complained of. Tuggendhat J's definition of what is defamatory included the words 'or has a tendency so to do'. That definition ensures that plaintiffs are not required to prove that the publication has in fact affected in an adverse manner, the attitude of other people towards them.
I considered the recognition of the Thornton principles in Australia in an interlocutory judgment in this action.[24] I assumed, 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.
[24] Armstrong v McIntosh [No 2] [2019] WASC 379.
In my opinion the Thornton threshold principle is part of the Australian common law of defamation. The threshold principle does not require an examination of factors external to the publication. It does not require an examination of whether or not the publication has actually caused any harm to the plaintiff's reputation. Tuggendhat J articulated a threshold of seriousness which was already inherent in the common law concept of defamatory meaning.[25] In Lesses v Maras,[26] the Full Court of the Supreme Court of South Australia considered that the judgment of Tuggendhat J:
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.[27]
[25] In Tobin and Sexton Australian Defamation Law & Practice at [3010] the authors doubt whether the notion of a 'threshold of seriousness' adds to the essential enquiry as to whether the plaintiff's meaning is, in normal circumstances, likely to cause ordinary reasonable persons to think less of a plaintiff. See also Kim Gould 'Locating a Threshold of Seriousness in the Australian Tests of Defamation' (2017) 39 Sydney Law Review 333 and Emma Croskery 'A Principled Approach to Defamation Claims in New Zealand: Untangling the Harm Threshold' (2019) 50 VUWLR 33, 39 ‑ 41.
[26] Lesses v Maras (2017) 128 SASR 292 [125].
[27] Lesses v Maras [125].
The Full Court added that the judgment 'should not be understood as creating an additional element of the cause of action for defamation'.[28]
[28] Lesses v Maras [125].
The defence of triviality
Section 33 of the Defamation Act provides that it is a defence to the publication of defamatory matter if the defendant proves that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
The basic principles as to how s 33 should be applied may be stated as follows. First, the words 'any harm' in s 33 are confined to reputational harm and do not extend to harm to feelings.[29]
[29] Smith v Lucht [2017] 2 Qd R 489 [54] (Flanagan J, Philippides JA agreeing).
Secondly, the inquiry whether the plaintiff was unlikely to sustain any harm, is directed to the time of publication.[30]
[30] Barrow v Bolt [2015] VSCA 107 [34] (Kaye JA, Ashley & McLeish JJA agreeing); Smith v Lucht [33].
Thirdly, the court must make a prospective inquiry in applying s 33. The defence is concerned with the circumstances of the publication and the likelihood of harm. It looks to the circumstances at the time of publication, and requires the tribunal of fact, being aware of those circumstances, to consider prospectively the likelihood of harm ensuing, not whether harm did actually ensue.[31]
[31] Smith v Lucht [34] ‑ [35].
Fourthly, the phrase 'unlikely to sustain any harm' does not mean that it is sufficient for the defendant to establish that it is more probable than not that the plaintiff will not suffer harm. The defendant must demonstrate that there is the absence of a real chance or the absence of a real possibility of harm.[32]
[32] Barrow v Bolt [36]; Smith v Lucht [36].
Fifthly, the defendant is required to establish that, at the time of publication, the circumstances were such that the plaintiff was unlikely to suffer 'any' harm. Accordingly, the onus on the defendant to prove that matter is high.[33]
[33] Barrow v Bolt [37].
Sixthly, the defence provided by s 33 applies to the publication of 'defamatory matter'. Thus, s 33 provides a defence where matter that has been published is defamatory of the plaintiff. In order to be defamatory, the matter must tend to lower the reputation of the plaintiff in the eyes of ordinary reasonable members of the community. Thus, s 33 contemplates a case in which, notwithstanding that a publication about a plaintiff is defamatory in that sense, nevertheless the 'circumstances of publication' were such that the plaintiff was unlikely to sustain any harm as a result.[34]
[34] Barrow v Bolt [38].
Seventhly, the major circumstances the court should consider in deciding whether the circumstances of the publication were such that the plaintiff was unlikely to sustain any harm include:
(a)the content of the publication;
(b)the extent of the publication; and
(c)the nature of the recipients and their relationship with the plaintiff.[35]
[35] Smith v Lucht [37].
Eighthly, circumstances such as that the recipients of the publication were well acquainted with the plaintiff, or with the content of the publication and therefore able to make their own judgment as to the likelihood that there is any substance in the imputation conveyed, may make it more likely that the plaintiff was unlikely to sustain any harm.[36]
[36] Barrow v Bolt [40]; Smith v Lucht [51] ‑ [52].
Ninthly, each of the matters complained of gives rise to more than one defamatory imputation. However, the defence of triviality under s 33 of the Defamation Act applies to the publication of defamatory matter. The defamatory matter is each of the text messages, not the separate imputations arising from them.
The first matter complained of
The first matter complained of is the defendant's text message of 4 May 2017 to Mr Quayle. I will set it out in full:
1 'Really wish you could have witnessed some conversations over the past 2 couple of weeks so you could see the real picture on a few things. 3 There's so much I'd love to be able to share with you so you'd see that 4 I'm actually a nice person. 5 I've had some options that would have really been to my benefit which 6 I've elected not to take so that Bec doesn't suffer. 7 I'd so love for you to see that. 8 I don't expect any thanks or any acknowledgement from her or her 9 family. They'll probably still paint me as a villain. Frankly, I don't care 10 what they think or say anymore. But I can hold my head high with 11 dignity, and that's something they certainly can't do after the way they've 12 dealt with all of this. Even the father of their church is extremely 13 disappointed in them. I've been talking with him regularly since they 14 turned on me, and he's helped to understand the reasons why seemingly 15 nice people can turn evil and think they are justified in doing so. 16 It'll all be over soon. Thank god this chapter is closing I don't wish them 17 any harm but the whole Armstrong family means nothing to me 18 anymore. I hope to never ever have anything more to do with any of 19 them. 20 I'm a good person. I'll stay a good person and I'll always do the right 21 thing'. [line numbers added for ease of reference]
The first matter complained of - identification
The plaintiff must prove that the defamatory matter was about him. The text message does not refer to the plaintiff by name. It refers to Ms Armstrong and 'her family'. The question is whether, in light of all the circumstances and taking the specific context in which the statements were made into account, a reasonable person in the position of Mr Quayle would conclude that the words complained of referred to the plaintiff.
The statements which give rise to the alleged imputations are the references to 'they' and 'them' in lines 8 to 16 of the text. The sentences which precede and follow lines 8 to 16 make it clear that 'they' and 'them' in lines 8 to 16 are references to members of the Armstrong family.
The subject matter of the text is the conflict between the defendant and Ms Armstrong's family. Mr Quayle knew that the conflict arose from the dispute between the defendant and Ms Armstrong about the division of their property. The members of the Armstrong family known to Mr Quayle were Ms Armstrong, the plaintiff and their parents, Peter and Robyn.
On 19 April Mr Quayle had received a text message from the defendant which referred to 'the stuff that Paul has been doing to us', and that 'he is gloating about what they have extracted from me and the boys', and the 'damage and hurt they are causing us', and 'it's sad that she'd indorse Paul doing that to us'. A reasonable person in Mr Quayle's position would have understood the references to Paul to be references to the plaintiff.
It follows that an ordinary reasonable person in the position of Mr Quayle would have understood 'they' and 'them' in the first matter complained of to refer to Ms Armstrong and the plaintiff, although they might refer to other members of the Armstrong family as well.
An ordinary reasonable person in the position of Mr Quayle would have understood the acts and conditions attributed to Ms Armstrong's family in the first matter complained of, to be acts and conditions attributed to at least the plaintiff as well as Ms Armstrong.
First matter complained of - meaning
The words in lines 13 to 16 of the first matter complained of, in the context of the message as a whole and in particular lines 8 to 16 and in the context in which the text message was received, mean that 'they' have turned evil. For the reasons stated earlier, 'they' refer to the plaintiff. I find that the first matter complained of gives rise to the imputation that the plaintiff is an evil person.
It is possible to construe the first matter complained of, and in particular the words 'seemingly nice people can turn evil and think they are justified in doing so', to mean that the plaintiff is a hypocrite, in that he pretends to be a good person, but, in fact is evil. However, in my view that is not the natural and ordinary meaning of the words. An ordinary reasonable reader would understand the text to mean that these people who have appeared to be nice are evil and think they are justified in doing what they have done, not that they are pretending to behave in one way whilst behaving in a different way.
The plaintiff also pleads that, by way of innuendo, the first matter complained of means that the plaintiff has acted in such an unchristian manner that his parish priest thinks ill of him. The extrinsic fact relied upon to establish that innuendo meaning is that Mr Quayle knew that the plaintiff is a Catholic who regularly attends Our Lady of Grace church in North Beach. I find that the first matter complained of does give rise to that imputation. In their context the words that the plaintiff's parish priest (ie the father of their church) is extremely disappointed in him would convey to an ordinary reasonable reader in the position of Mr Quayle that the plaintiff has acted in such an unchristian manner, that is unkind, unfair or morally wrong, that his parish priest thinks ill of him.
First matter complained of - defamatory
The imputations arising from the first matter complained of - the plaintiff is an evil person and he has acted in such an unchristian manner that his parish priest thinks ill of him - are on the face of it, defamatory. To say of a person that he is evil or that he has acted in such an unchristian manner that his priest thinks ill of him, has a tendency to substantially affect in an adverse manner the attitude of other people towards him.
The defendant submitted that the first matter complained of does not give rise to imputations defamatory of the plaintiff or that the matters complained of do not surmount the necessary threshold of seriousness. The defendant's contentions are based on the context of the first matter complained of and in particular the following matters. First, the first matter complained of was published to only one person ‑ Mr Quayle. Secondly, Mr Quayle was a close friend, advisor and confidant of the defendant. Thirdly, the plaintiff was no more than an acquaintance of Mr Quayle whom he did not know well. Fourthly, Mr Quayle knew that the defendant and Ms Armstrong, with the support of the plaintiff, were involved in a highly charged and emotional matrimonial dispute. Fifthly, Mr Quayle knew that the defendant was suffering stress and mental anguish.
I have found that the threshold of seriousness principle is merely an elucidation of the requirement that, to be defamatory, an imputation must tend to lower the estimation of the plaintiff by the community. It is not an additional element of the cause of action for defamation.
A pleaded imputation is to be examined in the context of the matter complained of.[37] Context may clarify or undermine the sting of a facially derogatory imputation.[38] In Smith v Walker Lord Kinnear said:
The manner of publication, and the things relative to which the words were published and which [that the person knew or ought to have known] would influence those to whom it was published in putting a meaning on the words, are all material in determining whether the writing is calculated to convey a libellous imputation.[39]
[37] Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165 [22] (Mason P).
[38] Greek Herald Pty Ltd v Nikolopoulos [22].
[39] Smith v Walker (1912) SC 224, 228.
The defendant's words are on their face directed to, and cast aspersions on, the character of the plaintiff. The matters of context referred to by the defendant do not negate or undermine the defamatory sting of the defendant's words, or render them benign. I find that the imputations which I have found arise from the first matter complained of are defamatory of the plaintiff.
First matter complained of - defence of triviality
The defendant pleads a defence of triviality - that the circumstances of publication were such that the plaintiff was unlikely to sustain any harm. In support of that defence the defendant gives four particulars. First, the publication was to one person, Mr Quayle. Secondly, at all relevant times Mr Quayle and the plaintiff had no social, professional or other contact. Thirdly, Mr Quayle knew of the plaintiff's reputation. Fourthly, Mr Quayle was aligned with the plaintiff (along with Mrs Quayle and Ms Armstrong) in the common objective of seeking to encourage a payment from the defendant to Ms Armstrong.
The plaintiff made several offers to settle the proceeding. For the reasons I set out below, the defendant unreasonably failed to accept those offers. In the circumstances of this case, the plaintiff was justified in proceeding to trial notwithstanding that the costs of each party were disproportionate to the damages likely to be awarded to the plaintiff.
Plaintiff should have his costs
The defendant has not established any good or sufficient reason for the court departing from the usual rule that costs follow the event. It remains to be considered whether the plaintiff should have all of his costs of the action, or whether he should be deprived of his costs, or pay the defendant's costs of the plaintiff's claimed cause of action concerning the alleged publication to Father Smith, and the defendant's Stay Application, and the defendant's application on 30 October 2019 to inspect documents, the costs of which have been reserved.
Costs of the action concerning Father Smith
By his Stay Application the defendant applied for the action to be permanently stayed or dismissed. I dismissed the plaintiff's claim in relation to the alleged publication to Father Smith. The plaintiff was therefore unsuccessful in his claim relating to the alleged publication to Father Smith. RSC O 66 r 1(3) provides that where a party though generally successful in an action has, by the introduction of some issue or issues on which he has failed, increased the costs, the court may order such party to pay the costs of such issue or issues.
It is not appropriate to deprive the plaintiff of his costs in relation to the second matter complained of, the alleged publication to Father Smith, incurred prior to 7 May 2019. On 7 May 2019 the defendant filed his affidavit in which he denied that he had said to Father Smith the words alleged. The defendant annexed to his affidavit a statement from Father Smith, in which Father Smith said that during his conversations with the defendant he does not recall any derogatory comments or words against the plaintiff.
A court may refuse costs to a successful defendant who has, by inducing the plaintiff to believe that he or she had a good cause of action against the defendant, or by some other act or omission, led the plaintiff to bring the action, where aside from the defendant's inducing conduct, the action would in all likelihood not have been brought.[106]
[106] Dal Pont G E, Law of Costs (4th ed, 2018) [8.45] and the authorities cited in footnote 253.
The defendant, by inducing the plaintiff to believe that he (the defendant) had said to Father Smith words to the effect that the plaintiff was a liar, led the plaintiff to sue in relation to the second matter complained of. The defendant sent text messages to Mr Quayle which a reasonable reader would understand to convey that the defendant had conveyed to Father Smith that the plaintiff was a liar. The defendant did not, as he should have, in his response to the plaintiff's concerns notice, withdraw the statements in his text messages concerning Father Smith's opinion of the plaintiff and Father Smith's knowledge of the plaintiff's lies. The defendant did not, as he should have, state that he (the defendant) had only spoken to Father Smith once and had not said to Father Smith anything derogatory of the plaintiff. Instead, the defendant said that he was entitled to confide in the priest and his conversations with the priest were confidential.
The plaintiff should not recover his costs in relation to the second matter complained of incurred after 7 May 2019. It was not reasonable for the plaintiff to continue with his claim in relation to the second matter complained of after that date. The plaintiff had no cause to believe that the defendant had said to Father Smith that the plaintiff was a liar other than inferences to be drawn from statements by the defendant in his text messages to Mr Quayle. It was not reasonable for the plaintiff to continue with his claim after the defendant had given sworn evidence that he had not spoken the alleged words to Father Smith, and Father Smith, who the plaintiff held in high regard, had given a formal statement that he did not recall any derogatory comments or words by the defendant against the plaintiff.
The costs incurred by the defendant in relation to the second matter complained of after 7 May 2019 were principally, if not exclusively, incurred in the course of the defendant's Stay Application. The defendant's affidavit filed on 7 May 2019 and the affidavit of Father Smith filed on 5 June 2019 were filed in support of the defendant's Stay Application. Those costs are properly part of the defendant's costs of the Stay Application which I will now consider.
Costs of the Stay 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 plaintiff's 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 pressed the application that the action should be dismissed on the ground that the action fails to surmount the necessary threshold of seriousness. The defendant pressed 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 would be expended to determine the action are disproportionate to the interest at stake. The defendant did not press his application on the ground that the proceeding should be dismissed as an abuse of process because it had been commenced and/or maintained for an impermissible, ulterior or collateral purpose. The defendant unsuccessfully pressed that ground at trial.
The defendant's application was successful to the extent that I ordered that the plaintiff's claim in relation to the alleged publication to Father Smith be dismissed. I ordered that it be dismissed on the ground that the claim was an abuse of process because the resources of the court and the parties that would have to be expended to determine the claim are disproportionate to the interest at stake. The defendant's application was otherwise dismissed.
The defendant failed on one of the grounds of his original application and did not press the other ground. The ground on which the defendant was successful was raised for the first time in his written submissions of 12 September 2019, delivered six days before the hearing of the application. On the other hand, the defendant was successful in having the plaintiff's claim in relation to the alleged publication to Father Smith dismissed. The appropriate order is that there be no order as to the costs of the Stay Application so that each party will bear their own costs of that application.
Defendant's application for inspection
At the request of the defendant, the court issued a subpoena to Woodside Energy Ltd on 9 September 2019. Woodside produced documents in answer to the subpoena. The plaintiff and his sister, Ms Armstrong, claimed legal professional privilege in respect of a number of the documents produced. The documents produced by Woodside were inspected by Ms Galati, the solicitor for the plaintiff and Ms Armstrong. Ms Galati divided the documents into eight categories: CG1 to CG8. The defendant abandoned his claim in respect of five categories in his written submissions and a further category prior to the hearing.
On 30 October 2019 I heard the defendant's application. Only two categories of documents were the subject of argument. I found that the documents labelled CG8 are privileged, while the documents labelled CG3 are not privileged and may be inspected by the defendant.[107]
[107] Armstrong v McIntosh [No 3].
The plaintiff says he was substantially successful in the application. Further, the plaintiff submits that the documents were sought by the defendant on the basis of his misconception as to what constituted an abuse of process by a plaintiff commencing proceedings. None of the documents were relevant to the issues at trial. The plaintiff says that, at best for the defendant, an available costs order would be that costs be in the cause, which because the plaintiff was the successful party would mean that the plaintiff would be awarded his costs of the application.
The application was brought by the defendant. He was partly successful in that he obtained an order for inspection of some documents. However, the defendant was not successful in obtaining inspection of the majority of the documents that he originally claimed to inspect, either because he abandoned his claim or because the court found the documents to be privileged. Having regard to the relative success of each party on the application, the matters in issue in the application, and the plaintiff's ultimate success in the action, the plaintiff should have the costs of the application.
Indemnity costs
To the extent that there are differences between the RSC in relation to costs and the provisions of Defamation Act s 40, s 40 should be given priority to the RSC because of its specific application to defamation proceedings.[108]
[108] Haddon v Forsyth (No 2) [2011] NSWSC 693 [4] (Simson J); Holt v TCN Channel 9 Pty Ltd (No 2) [2012] NSWSC 968 [16] (Adamson J).
The first limb of s 40(2) provides that a court that orders costs in favour of a successful plaintiff must, unless the interests of justice require otherwise, order that they be assessed on an indemnity basis if satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff.
Defendant unreasonably failed to make a settlement offer
I have referred to the settlement offers made by the defendant which the defendant submits the plaintiff unreasonably failed to accept. I find that none of the offers were a reasonable settlement offer.
The text messages referred to, and were intended by the defendant to refer to, the plaintiff. The texts were clearly defamatory of the plaintiff. They made serious allegations which struck at the plaintiff's honesty and integrity. The defendant knew that the things he said about the plaintiff were untrue, or he had no positive belief they were true, and he had no proper basis for making the statements defamatory of the plaintiff and for subsequently asserting that the imputations were true.[109]
[109] Armstrong v McIntosh [No 4], [243] ‑ [254].
In those circumstances a reasonable settlement offer required: an apology; an undertaking not to repeat the imputations; an offer of some, albeit modest, compensation; an offer to pay the expenses reasonably incurred by the plaintiff before the offer was made; the expenses reasonably incurred by the plaintiff in considering the offer; and where it was a term of the offer that the parties execute a deed of release and settlement, the expenses reasonably incurred in relation to the deed. None of the offers made by the defendants met that criteria.
Secondly, the defendant's offers which required the plaintiff to execute a deed of settlement and release were unreasonable because of the confidentiality clauses on which the defendant insisted. A defendant's insistence upon a confidentiality obligation as part of a settlement offer may undermine one aspect, at least, of what a plaintiff is seeking to achieve by pursuing the action ‑ vindication.[110] The confidentiality clause insisted upon by the defendant in his offer of 15 December 2017 precluded the plaintiff from showing the apology to the person to whom the defamatory text had been published, it thereby negated one of the purposes for which the plaintiff had sought the apology. The subsequent confidentiality clauses proposed by the defendant, whilst permitting the apology to be shown to Mr and Mrs Quayle, were attended by unnecessary and unreasonable restrictions.
[110] De Poi v Advertiser‑News Weekend Publishing Company Pty Ltd (No 2) [2016] SASCFC 45 [20]; Ten Group Pty Ltd v Cornes(2012) 114 SASR 46 [120].
Defendant unreasonably failed to agree to settlement offers by the plaintiff
On 28 November 2017 the plaintiff made an offer which was stated to be 'pursuant to the principles of Calderbank v Calderbank (and in the alternative pursuant to s 40 of the Defamation Act 2005)'. The plaintiff offered to accept an apology and an undertaking in terms to be agreed, compensation of $3,000, and costs in the sum of $3,500. The defendant rejected that offer. I find that the defendant unreasonably failed to agree to the settlement offer proposed by the plaintiff.
The plaintiff commenced this action on 29 January 2018. The following day, 30 January 2018, the plaintiff offered to settle the matter on the basis of an apology, payment of the plaintiff's costs in respect of the filing fee of the writ: $1,260.20, and a deed of settlement including a confidentiality clause which would contain, as carve outs, the apology and matters referred to in cl 5.2.1 and cl 5.2.2 of the deed of release set out in the defendant's solicitor's correspondence of 20 December 2017 to be agreed. By letter of 5 February 2018 the defendant rejected the plaintiff's offer. I find that the defendant unreasonably failed to agree to the settlement offer proposed by the plaintiff.
By letter of 13 March 2018 the plaintiff made a further offer stated to be on a without prejudice and without admission of liability basis pursuant to the principles in Calderbank v Calderbank, and in the alternative, pursuant to Defamation Act s 40. The plaintiff offered to resolve the matter on the basis of an apology which the plaintiff would be entitled to provide to Mr and Mrs Quayle, Father Smith, and any person who makes enquiry of the plaintiff with regard to the imputations pleaded in the action or any similar imputations of the subject matter connected to the imputations, payment of the costs in respect of the filing fee of the writ: $1,226, and payment to the plaintiff of $3,000. I find the defendant unreasonably failed to agree to the settlement offer proposed by the plaintiff.
On 18 March 2019 the plaintiff offered to discontinue the proceedings with no order as to costs on terms that the defendant pay to the plaintiff $16,000, representing the plaintiff's costs of the successful strike out application,[111] and payment to the plaintiff of $5,000, representing an amount of damages and other costs incurred in the action including the filing fee of the writ of $1,226. I find that the defendant unreasonably failed to agree to the settlement offer proposed by the plaintiff.
[111] The court had ordered the defendant to pay the plaintiff's costs of that application.
The trial was scheduled to commence on 11 November 2019. On 5 November 2019 the plaintiff made his final offer of settlement. The plaintiff offered to settle the action on the basis of a discontinuance of the proceedings with each party bearing their own costs subject to entering into a simple deed of release containing standard terms, including a term as to the confidentiality of the settlement which could be provided urgently if required and a mutual non‑disparagement clause. The defendant rejected the plaintiff's offer. I find that the defendant unreasonably failed to agree to the settlement offer proposed by the plaintiff notwithstanding that it was made only six days before the trial was due to commence.
I am satisfied that the defendant unreasonably failed to make a settlement offer and unreasonably failed to agree to settlement offers proposed by the plaintiff. Defamation Act s 40(2) requires that the court must order the costs of and incidental to the proceedings to be assessed on an indemnity basis unless the interests of justice require otherwise.
Interests of justice do not require otherwise
The preferable construction of Defamation Act s 40(2)(a) is that, if a successful plaintiff is to be awarded any costs, such costs as he or she is awarded ‑ which may only be a portion of his or her costs ‑ should be assessed on an indemnity basis.[112]
[112] Duffy v Google Inc (No 3) [2016] SASC 1 [9] (Blue J).
I have determined to order costs in favour of the plaintiff and I am satisfied that the defendant unreasonably failed to make a settlement offer or agree to a settlement offer proposed by the plaintiff. In those circumstances, the court must order that the plaintiff's costs be taxed or assessed on an indemnity basis unless the interests of justice require otherwise. I am satisfied that the interests of justice do not require otherwise for the following reasons.
The defendant has not established any conduct of the plaintiff in connection with the action or any circumstances of the litigation which require otherwise.
At trial the defendant emphasised that the text messages were published to Mr Quayle in the context of a matrimonial dispute between the defendant on the one hand, and Ms Armstrong and the plaintiff on the other. The defendant's counsel submitted that passions were high and there was significant disagreement between the defendant on the one hand and the plaintiff and Ms Armstrong on the other. In his submissions in relation to costs, the defendant again referred to that context. The defendant said that the dispute about whether the defendant and Ms Armstrong had entered into a binding agreement underlay the texts and the defendant (as well as the plaintiff) was correct in his position. The defendant also referred to statements made by the plaintiff to the defendant's brother, Ian McIntosh, that he (the plaintiff) was going to destroy the defendant.
In Amanatidas v Darmos,[113] Sifis J did not consider that it was in the interests of justice that the defendant pay indemnity costs as the case 'was part of a wider acrimonious family dispute, publication was very limited and each side no doubt had their own agenda'.[114] The defamatory publications were made in the course of an 'acrimonious family dispute', at least temporarily.
[113] Amanatidas v Darmos (Costs) (No 2) [2011] VSC 216 [32] ‑ [33].
[114] Amanatidas v Darmos (Costs) (No 2) [33].
I have found that that context did not justify the defendant's conduct in publishing the defamatory matters to Mr Quayle, nor did it justify the defendant's subsequent conduct which I held justified an award of aggravated damages. That context is not a reason for not ordering the defendant to pay the plaintiff's costs on an indemnity basis. The family law dispute was over before the plaintiff commenced this proceeding. The defendant's conduct in unreasonably failing to make or accept a settlement offer and the manner in which he conducted the proceeding are such that the interests of justice do not require that the defendant not pay the plaintiff's costs on an indemnity basis.
Aspects of the defendant's conduct of the litigation were improper and unjustifiable. This includes the defendant's plea that the imputations that the plaintiff is a liar, and that the plaintiff has acted in such a reprehensible manner against the defendant that he is not deserving of associating with the defendant's family and friends, are true was unjustifiable.[115] The defendant's attempts at obfuscation in his evidence at trial as to the meanings conveyed by the matters complained of and the identification of the plaintiff unreasonably prolonged the trial and added to the costs.
[115] Armstrong v McIntosh [No 4] [264] ‑ [270].
The plaintiff's costs should be assessed on an indemnity basis.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
GG
Associate to the Honourable Justice Le Miere
21 MAY 2020
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