Askew v Morris
[2005] WASCA 59
•30 MARCH 2005
ASKEW -v- MORRIS & ORS [2005] WASCA 59
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASCA 59 | |
| THE COURT OF APPEAL (WA) | |||
| Case No: | FUL:147/2004 | 9 FEBRUARY 2005 | |
| Coram: | STEYTLER P WHEELER JA | 30/03/05 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Leave to appeal refused | ||
| B | |||
| PDF Version |
| Parties: | THOMAS ASKEW PATRICIA MITZIE MORRIS THE CITY OF GOSNELLS COMMUNITY NEWSPAPERS GROUP LTD |
Catchwords: | Appeal Interlocutory decision Defamation Pleadings Application for leave to amend statement of claim Imputations Turns on own facts |
Legislation: | Nil |
Case References: | Askew v Morris & Ors [2004] WASC 195 Askew v Morris & Ors [2004] WASC 43 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 Armstrong v Times Newspapers Ltd & Ors [2004] EWHC 2928 (QB) Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Taylor v Jecks (1993) 10 WAR 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE COURT OF APPEAL (WA) CITATION : ASKEW -v- MORRIS & ORS [2005] WASCA 59 CORAM : STEYTLER P
- WHEELER JA
- Applicant (Plaintiff)
AND
PATRICIA MITZIE MORRIS
First Respondent (First Defendant)
THE CITY OF GOSNELLS
Second Respondent (Third Defendant)
COMMUNITY NEWSPAPERS GROUP LTD
Third Respondent (Fourth Defendant)
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram : MASTER NEWNES
Citation : ASKEW v MORRIS & ORS [2004] WASC 195
File No : CIV 1928 of 2003
(Page 2)
Catchwords:
Appeal - Interlocutory decision
Defamation - Pleadings - Application for leave to amend statement of claim - Imputations - Turns on own facts
Legislation:
Nil
Result:
Leave to appeal refused
Category: B
Representation:
Counsel:
Applicant (Plaintiff) : Mr P A Heywood-Smith QC
First Respondent (First Defendant) : Mr S M Davies
Second Respondent (Third Defendant) : Mr S M Davies
Third Respondent (Fourth Defendant) : Ms C Galati
Solicitors:
Applicant (Plaintiff) : Askew & Co
First Respondent (First Defendant) : Phillips Fox
Second Respondent (Third Defendant) : Phillips Fox
Third Respondent (Fourth Defendant) : Edwards Wallace
Case(s) referred to in judgment(s):
Askew v Morris & Ors [2004] WASC 195
Askew v Morris & Ors [2004] WASC 43
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
(Page 3)
Case(s) also cited:
Armstrong v Times Newspapers Ltd & Ors [2004] EWHC 2928 (QB)
Gillick v Brook Advisory Centres [2001] EWCA Civ 1263
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Taylor v Jecks (1993) 10 WAR 309
(Page 4)
1 STEYTLER P: I agree with Wheeler JA.
2 WHEELER JA: This is an application for leave to appeal the decision of a Master dated 7 September 2004. The Master had before him on that date an application by the plaintiff for leave to amend his statement of claim, which application was opposed on the basis that the minute disclosed no reasonable cause of action, or would embarrass, prejudice, or delay the fair trial of the action. The Master granted leave to amend except in relation to certain paragraphs the subject of this application.
3 The history of the application and the content of the disputed pleading are to be found in the Master's reasons for decision in an earlier application relating to the same action, Askew v Morris & Ors [2004] WASC 43, at [1] through to [8] and in his reasons in relation to this application, Askew v Morris & Ors [2004] WASC 195, at [1] to [7] and [9] to [11].
4 I accept those paragraphs to which I have referred as an accurate summary of the history of the proceedings and I do not repeat them here.
5 In summary, the Mayor of the City of Gosnells, the City itself, and the Community Newspapers Group are said by the plaintiff to have defamed him by reason of certain comments made by the Mayor, which comments were summarised and published together with some additional material in a weekly newspaper published by the third defendant. At the earlier application, which the Master determined on 23 March 2004, the Master had permitted to go forward a pleading which alleged that the article published conveyed the imputation that:
" … the plaintiff had made a series of baseless allegations against the Gosnells City Council which had resulted in investigations which cost the Council large sums of money."
6 The imputation the subject of the present application was pleaded:
"9.1 The plaintiff was involved in making a series of allegations of a baseless nature, having the effect of causing the Council to needlessly incur costs in excess of $200,000.
9.2 The plaintiff was involved in making a series of allegations of a baseless nature, having the effect of causing the Council to needlessly incur costs in excess of
(Page 5)
- $200,000 in circumstances where when asked the plaintiff would not defend his actions."
7 It can be seen in relation to 9.1 that the differences between the pleading which the Master was prepared to permit and the pleading now in issue are, in effect: the allegation that the costs incurred were in excess of $200,000; and the allegation that the plaintiff "was involved in making", rather than "made", the allegations. Paragraph 9.2 is to the same effect, with the additional words concerning the plaintiff not defending his actions.
8 This being an application for leave to appeal an interlocutory decision, it will succeed only if the decision below is attended with sufficient doubt and a substantial injustice would be done if the decision remained unreversed. In my view, the decision of the Master is not attended with sufficient doubt to justify the grant of leave. In any event, no substantial injustice would be done if the decision below remained unreversed, since it is my view that the imputations which the applicant seeks to plead are ambiguous in a manner which would cause embarrassment and unfairness to the defendants if the pleading were permitted.
9 The Master set out the relevant principles to be applied in cases of this kind in his earlier decision, [2004] WASC 43, in a way which contains no error. He directed himself to the same principles for the purposes of this application. The relevant principles are not in dispute and it is not suggested that the Master made an error of principle. Rather, it is submitted that he erred in his conclusion.
10 As to the proposed par 9.1, the Master said, at [17] of his reasons:
"In my view, the complaint in respect of the plea that the effect of the allegations by the plaintiff was to cause the Council to incur costs in excess of $200,000 is made out and the imputation, as presently formulated, is not capable of being conveyed by the words complained of. The article says the costs were incurred as a result of a series of complaints by local personalities. There is no basis upon which a reasonable reader could conclude that the costs associated with the complaints by the plaintiff alone were of that magnitude."
11 As to this, the applicant argues that the publication in question is capable of being read as asserting that the plaintiff is involved in a series of allegations which are said to have been made by "local personalities"
(Page 6)
- and that investigating the allegations in which the plaintiff was involved cost $200,000 (pars 14.3 and 14.5 of the applicant's written submissions). The applicant goes on to say that the imputation in 9.1 "does not say that the costs of $200,000 were in respect of complaints by the plaintiff alone".
12 The problem, in my view, with the applicant's argument at this point is that the pleaded imputation is, as the first and second respondents submit, fatally ambiguous. It is not an ambiguity which necessarily appears at first reading. As the Master read it, as I read it at first blush, and as pars 14.3 and 14.5 of the applicant's written submissions tend to suggest, it asserts that the imputation is that costs of $200,000 were incurred in respect of the complaints in which the applicant was "involved". However, it is also, as the applicant contended in argument before us, possible to read it as meaning that the imputation is that the applicant was involved in some, but not all, of the allegations in a series of allegations and that the allegations in total caused the incurring of costs in excess of $200,000. That is, it is not clear whether it is asserted that the plaintiff was involved in all of the allegations or not and it is not clear, as a result, whether the whole of the $200,000 is in some way to be attributed to the applicant or not.
13 As was pointed out by the Supreme Court of South Australia in Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181 at [55]: "A defendant has to know the precise imputation alleged by the plaintiff in order to determine whether to apologise or to defend the matter and if to defend upon what ground." For that reason, an imputation must be pleaded unambiguously, or it will be liable to be struck out as embarrassing (at [63]). In the present case, the plaintiff asserts that an imputation that he was responsible for making only one or some of a series of allegations which were responsible for some unspecified part of the costs of $200,000 is merely a shade or nuance of meaning, comprehended in the meaning which the Master attributed to the pleading (cfChakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519; [1998] HCA 37 at [14] - [17]; [21]; [52]; [60]; [139]). In my view, however, it is an alternative, and potentially of factual significance. If the plaintiff wished to allege that the article either implies that he made (alone or with others) all the allegations, or that he made only one or some of them, those meanings should have been pleaded in the alternative.
14 In the present case, if the imputation was to be understood as the Master understood it, in my view, he was correct in finding that it could not be conveyed by the words complained of, as a reasonable reader could not conclude that the costs associated with complaints by the applicant
(Page 7)
- alone were in excess of $200,000. If the imputation is to be understood in some other way, the present pleading is liable to mislead, and it requires to be repleaded so as to make clear the meaning for which the applicant contends.
15 For those reasons, in respect of the proposed par 9.1, either there is no sufficient doubt attending the decision below, or alternatively there is no injustice flowing to the applicant in not being permitted to plead an embarrassing pleading.
16 So far as the proposed par 9.2 is concerned, to the extent that it repeats par 9.1, it suffers from the defects already outlined. The imputation contained in the additional words, in my view, is not capable of arising for the reason given by the learned Master at [19] - [22] inclusive. In summary, the Master took the view that a reasonable reader could not conclude that the applicant "would not defend his actions" merely because he declined to comment on a matter when contacted by a newspaper. I agree with the Master's reasons in the paragraphs to which I have referred.
17 It is my view, for the reasons outlined above, that leave to appeal should be refused.
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