Askew v Morris - [2004] WASC 256

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ASKEW -v- MORRIS & ORS [2004] WASC 256

CORAM: MASTER NEWNES

HEARD: 26 OCTOBER 2004

DELIVERED : 2 DECEMBER 2004

FILE NO/S: CIV 1227 of 2003

BETWEEN: THOMAS ASKEW
Plaintiff
AND
PATRICIA MITZI MORRIS
First Defendant
ADELLE COCHRAN
Second Defendant
RONALD JOHANNES BOUWER
Third Defendant
WERNER CORBE
Fourth Defendant
RAY HAEREN
Fifth Defendant
TREVOR PERKINS
Sixth Defendant
RODNEY KIM CROFT
Seventh Defendant
RONALD MITCHELL
Eighth Defendant
SUSAN IWANYK
Ninth Defendant
ANTONIO PISANO
Tenth Defendant
MARJORY CAROL MATISON
Eleventh Defendant
MICHAEL DEVEREUX
Twelfth Defendant
STUART JARDINE
Thirteenth Defendant
GERARD VAN RONGEN
Fourteenth Defendant
GARY McHUGH
Fifteenth Defendant
JOELEY PETIT
Sixteenth Defendant
STEVEN COLE
Seventeenth Defendant
DAVID GRIFFITHS
Eighteenth Defendant
TOM STEPHENS
Nineteenth Defendant
EXAMINER NEWSPAPERS
Twentieth Defendant
THE CITY OF GOSNELLS
Twenty-First Defendant

Catchwords:

Defamation - Application for leave to amend statement of claim - Whether amendments disclose reasonable cause of action or embarrassing - Turns on own facts

Legislation:

Crown Suits Act 1947 (WA), s 6(1)(a)

Rules of the Supreme Court 1971 (WA), O 20 r 9(3), O 21 r 5(3)

Result:

Application to amend allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Ms F L Askew
First Defendant             :     Mr S M Davies
Second Defendant         :     Mr S M Davies
Third Defendant           :     Mr S M Davies
Fourth Defendant          :     Mr S M Davies
Fifth Defendant            :     Mr S M Davies
Sixth Defendant            :     Mr S M Davies
Seventh Defendant        :     Mr S M Davies
Eighth Defendant          :     Mr S M Davies
Ninth Defendant           :     Mr S M Davies
Tenth Defendant           :     Mr S M Davies
Eleventh Defendant      :     Mr S M Davies
Twelfth Defendant        :     Mr S M Davies
Thirteenth Defendant     :     Mr S M Davies
Fourteenth Defendant     :     No appearance
Fifteenth Defendant      :     No appearance
Sixteenth Defendant      :     No appearance
Seventeenth Defendant :     Mr J A Sefton
Eighteenth Defendant     :     Ms C Galati
Nineteenth Defendant    :     Mr J A Sefton
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Mr S M Davies

Solicitors:

Plaintiff:     Askew & Co
First Defendant             :     Phillips Fox
Second Defendant         :     Phillips Fox
Third Defendant           :     Phillips Fox
Fourth Defendant          :     Phillips Fox
Fifth Defendant            :     Phillips Fox
Sixth Defendant            :     Phillips Fox
Seventh Defendant        :     Phillips Fox
Eighth Defendant          :     Phillips Fox
Ninth Defendant           :     Phillips Fox
Tenth Defendant           :     Phillips Fox
Eleventh Defendant      :     Phillips Fox
Twelfth Defendant        :     Phillips Fox
Thirteenth Defendant     :     Phillips Fox
Fourteenth Defendant     :     Corrs Chambers Westgarth
Fifteenth Defendant      :     Corrs Chambers Westgarth
Sixteenth Defendant      :     Corrs Chambers Westgarth
Seventeenth Defendant :     State Solicitor
Eighteenth Defendant     :     Edwards Wallace
Nineteenth Defendant    :     State Solicitor
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Phillips Fox

Case(s) referred to in judgment(s):

Askew v Morris & Ors [2004] WASC 117
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386
Judamia v Western Australia, unreported; FCt SCt of WA; Library No 960114; 1 March 1996
Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264
Western Australia v Watson [1990] WAR 248

Case(s) also cited:

Bridge Shipping Pty Ltd v Grand Shipping SA (1991) 173 CLR 231
Coyne v West Australian Newspapers Ltd (No 1) (1996) 15 WAR 51
Gardiner v John Fairfax & Sons Pty Ltd (1942) 42 SR (NSW) 171
Hoad v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960617; 24 October 1996
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morgan v Banning (1999) 20 WAR 474
Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996
Rubenstein v Truth and Sportsman Ltd [1060] VR 473
Stokes v Cowan [2004] WASC 173
Taylor v Jecks (1993) 10 WAR 309

MASTER NEWNES: This is an application by the plaintiff by chamber summons to amend the statement of claim. It follows upon orders striking out parts of the existing statement of claim: Askew v Morris & Ors [2004] WASC 117. The defendants oppose a number of the proposed amendments on the grounds that they are embarrassing or they do not disclose an arguable cause of action. There is also an application by the plaintiff to amend the writ to join the State of Western Australia in place of the eighteenth defendant, Mr Griffiths, which is opposed. I will deal with the objections to the statement of claim before turning to the proposed amendments to the writ.
The relevant principles to be applied on an application of this sort are set out in my earlier decision in Askew v Morris & Ors (supra). I adopt what I said there and will not repeat it.
The first objection, taken by the first, seventh, thirteenth and twenty‑first defendants ("council defendants"), was to par 15.4 of the minute of amended statement of claim. That pleads an imputation in the following terms:
"15.… By the said words Jardine meant and was understood to mean that the plaintiff was …
15.4by reason of the publication of defamatory allegations responsible for the unnecessary expenditure of monies, time and resources of the council."
The council defendants submitted that the imputation is not defamatory of the plaintiff and, alternatively, that it does not properly indicate the nature of the discreditable conduct alleged. It was submitted that it is not defamatory to say of a person that they made defamatory allegations which turned out on investigation to be groundless, in the absence of some additional element reflecting on the plaintiff such as an absence of good faith or knowledge that the allegations were groundless. A person may entirely in good faith make allegations which are of their nature defamatory and which upon investigation turn out to be groundless.
The plaintiff says that the discreditable conduct is the publication of defamatory allegations. It is arguably defamatory to say that a person has made defamatory allegations which have unnecessarily consumed a good deal of time, money and resources.
As I said in my earlier decision, I consider it is arguably defamatory to say of a person that they have defamed another. It follows, in my view, that the present imputation is arguably defamatory. I would therefore allow it.
The next objections by the council defendants were to the imputations pleaded in pars 19.1, 19.2 and 19.5. The relevant words complained of are pleaded in par 16 as follows:
"16.In a media release faxed from the City of Gosnells on 6 May 2002 to local media outlets and headed: 'Allegations against Council "Baseless"' the City of Gosnells stated:
'The Minister for Local Government, Hon Tom Stephens, today cleared the City of Gosnells of all 28 allegations made in January 2002 by former Councillor Tom Askew, relating to the management of the City.
City of Gosnells Chief Executive Officer, Mr Stuart Jardine, welcomed today's announcement by the Minister that the City had "no case to answer" on any of the assertions made by the former Councillor, and said the Council could now get on with the job of leading the community and managing the City. "The claims were fully investigated by the Department of Local Government which found there was no wrongdoing whatsoever by Council's management" he said.
The 387 page response to the allegations has cost the City an estimated $65,000 in time and resources. In addition to this, the Council is running an extraordinary election to replace the former Cr Askew, costing ratepayers a further $40,000.'
Mr Jardine stated:
'Employee time, organisational effort and resources were expended unnecessarily. The opportunity cost, not just financial but also social and psychological, will never be fully known. The City has an international standing as being a first class Local Government, and we hope this reputation has not been damaged as a result of Mr Askew's actions and defamatory allegations. We understand that it is the view of the Crown Solicitor and also from advice provided by council's own legal advisers that language used in the allegations was defamatory of members of the Executive Team. Regardless of this, I don't believe the community would have anything to gain at the present time by pursuing this issue against Mr Askew.'
He continued: 'While the investigation found Mr Askew was wrong in his judgements, and wrong to have progressed his unfounded allegations so vigorously through the media and to the Minister, I believe it is now time to put this issue behind us and get on with the real business of running the City of Gosnells and improving the quality of life for our community.
This investigation has clearly shown the City's business practices to be working effectively and we must address the environment, and the procedures, in our Council that allowed Mr Askew to progress his unfounded allegations so forcefully, at the expense of the City of Gosnells ratepayers, and the reputations of many elected members and staff. Let's get back to the real business of serving our local community. I am not interested in any other agendas'."
The relevant imputations are in the following terms:
"By the said words Jardine and the City of Gosnells meant and were understood to mean that the plaintiff:
19.1by reason of the publication of defamatory allegations was responsible for the City of Gosnells incurring unnecessary expenses in money, time and resources to the value of $65,000;
19.2by reason of his actions in making the defamatory allegations and progressing same vigorously through the media had put in jeopardy the international standing and reputation of the City of Gosnells;
…
19.5by the said words Jardine and the City of Gosnells meant and were understood to mean that the plaintiff had in publishing the defamatory allegations acted with an improper motive."
In relation to par 19.1, two objections were taken; first, that it is not capable of being conveyed by the words complained of and, secondly, that it is not defamatory of the plaintiff. The council defendants submitted that the comments in the words complained of about the defamatory nature of the allegations were unconnected to the comments about the expenses. On a fair reading of the matter as a whole it was clear it was the fact the plaintiff made the allegations, rather than the fact that they were defamatory in their terms, which caused the expenses to be incurred.
The plaintiff says the discreditable conduct is the publication of defamatory allegations and it is those allegations that have caused the expenses. The imputation is therefore arguably capable of being conveyed. I accept that submission and would allow the imputation.
The council defendants also argued that the imputation was clearly not defamatory of the plaintiff for the reasons advanced in relation to par 15.4. For the reasons I gave in relation to that paragraph, I do not accept that submission and would allow the imputation.
The council defendants submitted that the imputation in par 19.2 of the statement of claim did not distil any defamatory meaning and was embarrassing. The defendants reiterated the submission that had been made in respect of par 15.4.
For the reasons I have given in relation to par 15.4, I consider the imputation does sufficiently distil a defamatory meaning and I do not consider that it is embarrassing. I would allow the imputation.
The council defendants objected to the imputation pleaded in par 19.5 of the minute on the ground that it was not capable of being conveyed by the matter complained of and, alternatively, on the ground that it was embarrassing by use of the word "improper". It was submitted on behalf of the council defendants that the word "improper" is capable of bearing different shades of meaning and thereby capable of referring to different degrees of impropriety. It was objectionable because the nature of the alleged impropriety was unclear.
It was argued on behalf of the plaintiff that the last sentence, and in particular the reference to "other agendas" in the words complained of, clearly raised the imputation of an improper motive. The alleged impropriety was the publication of the defamatory allegations. It was also submitted that the language of the words complained of, and in particular the use of the phrase "other agendas", was vague and imprecise and it was not open to the publisher to complain of imprecision in the plaintiff's imputation in respect of those words.
In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ said at 137 that:
"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case, a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology."
In the present case, on balance, I consider that the nature of the alleged impropriety is sufficiently defined, having regard to the nature of the words complained of, and I would allow the imputation.
The next complaint was as to par 21 which pleads, in substance, that the natural and probable consequence of the original publication was that the words would be republished on the City of Gosnells' website and in other news reports. On the hearing of an application to strike out an earlier version of the statement of claim, Senior Counsel for the plaintiff said that par 21, and also pars 25, 31, 32, 36, 37 and 44, went to damages only. In my earlier decision, I allowed the pleas on that basis: Askew v Morris & Ors (supra) at [52] and [53]. I think it is now sufficiently clear that the pleas go only to damages, so the complaint that the pleas do not expressly say so is not a ground on which they would be struck out. I would therefore reject the complaint in respect of each of those paragraphs.
The next complaint of the council defendants was as to par 28.3. That paragraph pleads one of three imputations which the plaintiff says arises from the words pleaded in par 27 of the minute. Paragraph 27 is as follows:
"27.At a City of Gosnells Ordinary Council Meeting of 14 May 2002 a ratepayer Ms Nuala Brown asked various questions of Jardine. These questions were put on notice to be answered by Jardine at the next Ordinary Council Meeting. The questions and response by Jardine were stated by Jardine in the Council meeting of 28 May 2002 as follows;
(a)Whether the Councillors have seen the terms of reference provided by the Local Government and Regional Development Minister, Mr Tom Stephens?
(b)How long were the Councillors given to study the contents of the report before being asked to vote on the recommendations?
(c)How long did it take the Shire to prepare the 387 page report?
(d)Who made the decision that the costs would be borne by the ratepayers and why then is the report not available to be viewed by them?
Response:In reply to Nuala Brown, the Chief Executive Officer provided the following written response on the 23 May 2002:
I refer to the questions you asked at the Ordinary Council Meeting on the 14 May 2002 and now provide the following response.
The cost to date of responding to the assessment of issues raised by the Department of Local Government and Regional Development and associated actions is estimated to be $64,622. The actual cost of producing the written response was less than $500.
Point (a)-Yes.
Point (b)- Council considered and approved the written response prepared by the Executive Team at a Special Council Meeting held on the 19 March 2002. The meeting opened at 6.31 pm and concluded at 9.57 pm.
Point (c)- Several weeks.
Point (d)- It was not the City which instigated the allegations. The City was obliged by virtue of section 8.2(2) of the Local Government Act, 1995 to respond in a proper and comprehensive fashion to the questions posed to it by the Department. To the extent that there has been expenditure, the responsibility for the incurring of that expenditure ought to be addressed to each of the complainant and the Department as the instigator and inquirer respectively. The City is currently looking at ways of recovering ratepayer's money expended in relation to this issue. The baseless unsubstantiated allegations of former Councillor Tom Askew were made directly to the Department of Local Government and Regional Development and it is the Department which has prepared a report to the Minister (this report has not been released to the City of Gosnells).
Furthermore:
1. The Crown Solicitor has advised that the allegations defame the City of Gosnells Executive Team.
2. Following research and inquiry no substantiation could be established.
3. To circulate the allegations themselves (which, effectively, is what is proposed to be done) will give currency to the allegations in circumstances where they have been investigated and found to have no validity.
4. As a consequence, there could be the possibility of mischief caused by the airing of the allegations, particularly in the run up to the local election."
The imputation in par 28.3 is in the following terms:
"By the said words the defendant Jardine meant and was understood to mean that the plaintiff:
28.3by reason of the publication of allegations of a defamatory nature which he knew or ought to have known were baseless and unsubstantiated is responsible for the City unnecessarily incurring expenses in money, time and resources to the value of $65,000 in producing the council report."
It was submitted on behalf of the council defendants that first, the imputation is not capable of being conveyed by the words complained of; secondly, the proposed imputation does not distil a defamatory meaning; and thirdly, the imputation was embarrassing by reason of the use of the expression "knew or ought to have known" in that it rolls two discrete imputations into one.
On the first ground, the essential complaint of the council defendants was that there was nothing in the words complained of to suggest that, at the time he made the allegations, the plaintiff knew that they were baseless or unsubstantiated.
In my view, the meaning alleged is arguably capable of being conveyed. The words complained of refer to the "baseless unsubstantiated allegations". In point (d) of the article there is a reference to the responsibility for the expenditure falling on the complainant and to the City looking at ways of recovering the money it had expended in relation to the plaintiff's complaints. The words are therefore arguably capable of being understood to mean that the plaintiff was at fault in making the allegations and in my view it is arguable that a reader would have understood the words complained of to mean that the plaintiff knew or ought to have known that the allegations were baseless and unsubstantiated. For the reasons I have previously given, I consider that such a meaning is capable of being defamatory of the plaintiff.
I accept, however, the defendants' complaint that the imputation is embarrassing by reason of the use of the expression "knew or ought to have known". That, it seems to me, involves two separate imputations, involving different degrees of seriousness. One is the making of allegations knowing that they were baseless, which is, in essence, an imputation of dishonesty. The other is an imputation that the plaintiff ought to have known they were baseless and unsubstantiated, which is an imputation in the nature of a want of care.

Where a plaintiff seeks to rely on different gradations of seriousness, in my view, they should be pleaded in separate imputations. As Hunt J observed in Hepburn v TCN Channel Nine Pty Ltd (1984) 1 NSWLR 386 (at 398):
"A party may plead different gradations of seriousness in separate imputations so that the jury may select the way in which the matter would have been understood by the ordinary and reasonable reader."
In my view, to roll the imputations into one, in the way in which par 28.3 is pleaded, is capable of causing confusion at trial and, on that basis, the imputation is embarrassing. The imputations should be separately pleaded.
The next objection was to pars 33.3 and 33.4, which contain imputations that the plaintiff says arises from the words pleaded in par 30. The plea in par 30 is in the following terms:
"30.In a press release from the City of Gosnells titled: 'Second set of Councillor Accusations also "Baseless"' dated about June 2002 Jardine and the City of Gosnells published the following words:
The Minister for Local Government and Regional Development, Hon Tom Stephens, today cleared the City of Gosnells of any wrong doing arising from a call for a Public Inquiry made by Councillor Olwen Searle.
City of Gosnells Chief Executive Officer Stuart Jardine said the long running political disruption fostered by former Cr Tom Askew and Cr Searle had finally ended with today's announcement by the Minister.
He said the claims raised by Cr Searle were a repetition of the allegations made by former Councillor Askew, and were also found to be 'baseless'.
The City of Gosnells has once again been cleared of any wrong doing, and we hope Cr Searle is now able to get past her political differences with the Council, he said.
Mr Jardine said the City had wasted considerable resources responding to Cr Searle's call for a Public Inquiry, again at the expense of ratepayers. Despite repeated requests at no time did Cr Searle provide Council, the Mayor or the CEO with any details of her concerns, which she forwarded, to the Press and the Minister. The cost of a Public Inquiry is usually around one million dollars.
'The upheaval created by the baseless allegations of both former Cr Askew and Cr Searle, and the subsequent investment of resources and staff time, is clear evidence that the robust politics of the Council should remain within the Council chambers' said Mr Jardine.
'Over the past 5 or 6 months, these allegations have caused needless expense for the Gosnells community, and needless distraction and uncertainty for our staff and the Executive.'
'Cr Searle should have waited until the outcome of the Department's investigation into former Cr Askew's allegations against the City before wasting the time and resources of Council staff dealing with a similar set of allegations that had already been investigated by the Department.
'Thankfully, our Councillors and staff are now finally free to re‑focus on running our City and providing quality services to our ratepayers.
'Now that this matter is over, lets all get on with the real business of serving our local community,' said Mr Jardine."
The imputations pleaded in pars 33.3 and 33.4 are as follows:
"By the said words Jardine and the City of Gosnells meant and were understood to mean that the plaintiff:
…
33.3had with Cr Searle made allegations which he knew or ought to have known were baseless;
33.4had, together with Cr Searle, and by reason of his making allegations which he knew or ought to have known were baseless caused unnecessary expense to the City of Gosnells and wasted considerable resources."
The council defendants submitted that first, the imputation in par 33.3 was not capable of being conveyed by the words complained of and, secondly, it was embarrassing in its use of the expression "knew or ought to have known". It was submitted that there was simply nothing in the words complained of which was capable of suggesting that the plaintiff knew or ought to have known that the allegations he made were baseless. It was also submitted that the plea rolled two imputations into one by use of the expression "knew or ought to have known".
It was submitted on behalf of the plaintiff that the imputation was arguably capable of being conveyed, particularly having regard to the allegation of "political disruption fostered by former Cr Askew" and to the assertions that the "long‑running political disruption [had been] fostered" by Councillor Searle and the plaintiff, and that the "upheaval created by the baseless allegations of …[the plaintiff] is clear evidence that the robust politics of the Council should remain within the Council chambers…".
I consider it is arguable that a reasonable reader would understand the words complained of to mean that the plaintiff knew or ought to have known that the allegations were baseless. However, for the reasons I have given in relation to par 28.3, I would not allow the imputation on the basis that it conveys two separate imputations and is therefore embarrassing. The two imputations should be separately pleaded.
The council defendants also objected to par 33.4 on the ground, first, that it was not capable of being conveyed by the words complained of and, secondly, on the ground that it was embarrassing by the use of the phrase "knew or ought to have known". For the reasons I have given in relation to par 33.3, I would not uphold the first objection, but I would uphold the second objection and would not allow the imputation on that basis.
The next objection was to par 38.2 of the minute, which pleads one of the imputations that the plaintiff alleges was conveyed by the words pleaded in par 34. The council defendants objected to the imputation on the ground that it was not capable of being conveyed by the words complained of and, alternatively, was embarrassing. The plea in par 34 is as follows:
"34.In a press release dated about June 2002 and issued from the City of Gosnells Morris published these words:
The City of Gosnells has again been cleared of allegations made by a disgruntled Councillor, signalling the end of a regrettable period in the history of the Council.
The Minster for Local Government and Regional Development, Hon Tom Stephens, has announced that the series of allegations made by Cr Olwen Searle were 'baseless'.
The Minister also found there was 'no justification' for Cr Searle's call for an Inquiry into the management of the City.
Unfortunately, while the Departmental investigation found the Council had not been involved in any wrong doing whatsoever, I believe that Cr Searle's actions have negatively impacted on the City and undermined the community's trust in our Councillors.
Ratepayers in the City of Gosnells have a right to expect excellent representation from their elected members, and our Councillors must be held accountable for the decisions they make.
However, once a Councillor chooses to take personal matters outside the Council, we have no choice but to abide by the requirements of the Minister and the Department of Local Government.
It is difficult to maintain the trust and confidence of the community when allegations, with no substance are made in the public arena, and we welcome the Minister's decision to investigate the manner in which Cr Searle raised her claims.
The City of Gosnells staff and Councillors cannot be continually caught up in the political agendas of individuals, with time and resources wasted on defending claims that are unfounded.
The Council should not be used as a tool to advance personal aspirations and other political agendas. As elected members, we are here to serve our community.
I urge Cr Searle to make a public apology for the damage she has done to the Council's reputation, for the stress she has put our staff under, and for the unnecessary waste of Council time and resources."
It is pleaded in par 35 that readers of the words were aware that the plaintiff had made similar allegations to those of Councillor Searle.
The imputation in par 38.2 is in the following terms:
"By the said words Morris meant and was understood to mean that the plaintiff:
38.2acted with an improper purpose in that he made allegations which he knew or ought to have known were or might be baseless for the purpose of advancing his political aspirations and not for the legitimate purpose of raising matters of serious concern."
The defendants submitted that there was nothing in the words complained of capable of giving rise to the imputation that the plaintiff knew or ought to have known his allegations were or might be baseless. The fact that the allegations he made were subsequently found to be baseless was not capable of giving rise to such a meaning.
It was submitted on behalf of the plaintiff that the imputation was capable of being conveyed, in particular, by the penultimate paragraph of the words complained of and the references in it to the "political agendas of individuals" and to the Council being used "as a tool to advance personal aspirations and other political agendas". I accept that submission and consider that the meaning alleged is arguably capable of being conveyed.
I consider, however, that in its present form the plea is embarrassing. It rolls a number of discrete imputations into one, namely, that the plaintiff made allegations which he knew were baseless, that he made allegations which he knew might be baseless, that he made allegations which he ought to have known were baseless and that he made allegations which he ought to have known might be baseless. As I have said previously, it seems to me there is a significant difference between an imputation that a person made an allegation that he knew was baseless and an allegation that a person made an allegation that he ought to have known was baseless. It is equally the case, in my view, that it is to impute to a plaintiff conduct of a different order of seriousness to say that he made allegations that he ought to have known were baseless and to say that he made allegations that he ought to have known might be baseless. In my view, the plea as presently formulated is capable of causing difficulty at trial and the separate imputations, if pressed, should be separately pleaded.
The next complaint related to the plea in respect of what is described in the minute as the "seventh publication". The relevant pleas are as follows:
"SEVENTH PUBLICATION
39.In or about May 2002 and July 2002 Croft and Griffiths wrote and published to at least 313 persons the following words namely;
'We the undersigned electors of the City of Gosnells request City of Gosnells to explore all avenues of recouping the $65,000 responding to the unfounded allegations made by former councillor Tom Askew for the following reasons:
To prevent further unfounded unsubstantiated allegations which may impact greatly on the City's budget.'
40.On 28 May 2002 and 23 July 2002 Croft tabled the petitions in Ordinary Council Meetings on those days. The natural and probable consequence of the tablings was that the said words and imputations arising therefrom were republished on the City of Gosnells website.
41.The said words are defamatory in their natural and ordinary meanings. By the said words Croft and Griffiths meant and were understood to mean that the plaintiff was:
41.1had made allegations capable of greatly impacting on the City's budget which he knew or ought to have known were or might be unfounded and unsubstantiated;
41.2was by reason of his so acting (as pleaded in 41.1) responsible for the City needlessly incurring expenses in money, time and resources to the value of $65,000 in producing the council report;"
The first complaint was that the plea in par 39 did not state the dates upon which it is alleged Croft and Griffiths respectively wrote and published the words complained of and, in particular, did not relate them to the publications set out in the indorsement of claim. In the indorsement of claim, it is alleged that there were defamatory publications by Croft on "14/28 May 2002" and 23 July 2002 and by Griffiths on "14/28 May 2002" and 23 July 2002. It was submitted that if the publications pleaded in par 39 relate to those dates, they should be specifically pleaded. If not, then the publications to which par 39 refers do not fall within the writ of summons and should be struck out on that basis. In my view, the point is properly taken and the specific dates should be pleaded.
The next complaint was that it appeared from par 41 that both Croft and Griffiths were sued in respect of the publication alleged in par 40. It is clear from the terms of the pleading that that alleged publication is attributed only to Croft. In the course of argument, counsel for the plaintiff said that par 40 pleaded a separate publication from that pleaded in par 39. That, however, seems to be belied by the heading "Seventh Publication" and, as it stands, the pleading is confusing. If it is intended to plead separate publications in par 39 and par 40, that should be made clear.
A further complaint was that par 41.1 was not capable of being conveyed by the words complained of and, alternatively, that it was embarrassing in that it contained several imputations rolled into one. It was submitted that the expressions "knew or ought to have known" and "unfounded and unsubstantiated" each gave rise to several discrete imputations and the latter was also embarrassing in that it was not apparent if the two words were intended to convey different meanings. If not, one should be omitted to make that clear. If so, then two or more imputations had been rolled into one.
It was submitted on behalf of the plaintiff that it was not open to the defendant to complain of the use in the imputation of the expression "unfounded and unsubstantiated" in light of the reference in the words complained of to the allegations as being "unfounded unsubstantiated". It was also submitted that it was implicit from the demand in the words complained of that the costs be recovered from the plaintiff, that the plaintiff knew or ought to have known that he was causing needless expense. That arguably gave rise to the imputation pleaded. I accept that contention and would not disallow the plea on the basis that the meaning was not capable of being conveyed.
I would not, however, allow the plea on the basis that the expression "knew or ought to have known were or might be" contained several discrete imputations rolled into one. I do not, however, accept the defendants' complaint that the words "unfounded and unsubstantiated" are embarrassing, having regard to the terms of the words complained of.
It was submitted on behalf of the defendant that the imputation pleaded in par 41.2 necessarily fell with the plea in par 41.1 and, further, that that the imputation was repetitive of 41.1. It was also argued that there was nothing in the words complained of to suggest that the time, money and resources were spent "in producing the council report". There is no reference in the words complained of to the use to which the $65,000 was put. I accept that submission and would not allow the imputation as it stands. I should say that counsel for the plaintiff indicated that the plaintiff has no objection to omitting the reference to producing the Council report. I do not, however, regard the plea as repetitive of 41.1 and accept the plaintiff's submission that it pleads a legitimate gradation of meaning.
The eighteenth defendant objected to par 46 of the minute. That plea, so far as relevant for present purposes, is as follows:
"46.The plaintiff claims damages in respect to the publications including both exemplary and aggravated damages.
PARTICULARS OF AGGRAVATION
…"
There are set out under the heading "Particulars of Aggravation" a number of matters which it is alleged each of the defendants knew.
The eighteenth defendant submitted that, in accordance with O 20 r 9(3) of the Rules of the Supreme Court1971 (WA), the plaintiff must set out in the statement of claim particulars of the matters relied upon for the respective claims for exemplary and aggravated damages. That rule provides that a claim for exemplary damages or a claim for aggravated damages must be specifically pleaded together with the facts on which the party pleading relies. There is, of course, at law a clear distinction between exemplary and aggravated damages: see Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 at [31] ‑ [32] and the cases there cited. Paragraph 46, in its terms, sets out particulars only of aggravation. Particulars of the facts relied on for the claim for exemplary damages must be pleaded. If the same particulars are relied upon for both exemplary and aggravated damages, that must be made clear.
Counsel for the plaintiff pointed out that the plea had been in that form prior to the last application by the defendants to strike out the statement of claim and no objection had been taken to it at that time. The current objection was therefore well out of time. I accept that submission, but in the end it seems to me that the plea is defective and, unless the matters relied upon for the plea of exemplary damages are set out in the statement of claim, that plea must be struck out. The lateness of the objection may, however, be relevant on the question of the costs of this part of the application.
The eighteenth defendant also complained that the matters relied upon for aggravated damages related to business matters concerning the City of Gosnells and there was no nexus between the plaintiff, who was not a council member or council officer, and the matters set out. I do not think that is a ground for disallowing the plea. Whether or not the eighteenth defendant had knowledge of the matters alleged is a question of fact and not a basis upon which the plea should be struck out.
I turn now to the objections of the seventeenth and nineteenth defendants. The seventeenth defendant objected to the imputations pleaded in pars 43.4 and 43.5 of the minute on the ground that they were not capable of being conveyed by the words complained of. There was also an objection to par 43.1 of the minute on the basis that it was not defamatory of the plaintiff, but at the hearing counsel for the plaintiff moved an amendment, to correct a typographical omission, by inserting the words "a mere troublemaker as evidenced by the fact that he was" after the word "was" and before the word "not" in the first line of par 43.1. The objection by the seventeenth defendant was not pursued.
The words complained of to which the imputations pleaded in pars 43.4 and 43.5 relate are pleaded in par 42 of the minute and are in the following terms:
"42.By way of a report to the Minister for Local Government dated 29 April 2002 and published to the Minister on or about that date Cole wrote of and concerning the plaintiff:
'On 13 January 2002, Mr Tom Askew, an elected member at the City of Gosnells, submitted a fax to you calling for an investigation into the City of Gosnells. In that fax Mr Askew stated, '...I ask that you conduct a thorough investigation into the activities as a matter of urgency:'
Mr Askew then went on to outline issues identified as (a) to (y). He stated in (z), '...there is more but there is enough to be going on with presently.'
Either prior to, or simultaneous to, submitting the fax to you Mr Askew had advised the media covering the Gosnells area that he had called for such an investigation. Mr Askew's advice to the media resulted in substantial coverage of the request, which caused considerable concern by the elected member and staff levels in the City. Mr Askew did not reveal any of the details of his complaint to the media, elected members or staff of the City. In the past two weeks the two local newspapers have been very critical of Mr Askew calling for him to provide substance to his allegations.
The department embarked on an assessment of the allegations. Initially that involved trying to contact Mr Askew to arrange an interview for him to provide the supporting materials for his allegations. Mr Askew did not wish to take or return my telephone calls. He was quoted in one of the local papers as saying I was biased.
You wrote to Mr Askew on 6 February and gave him until 15 February 2002 to present the evidence supporting his allegations. Mr Askew did not respond by the due date and has not, to this time, responded to that letter. When Mr Askew did not respond by the due date I considered recommending to you that the assessment be dropped. I did not do this on the basis that without a full assessment the matter would not have been dealt with and it would have been an issue that critics of the local government would have raised whenever it suited them.
The Crown Solicitor's Office had advised that the original allegations contained material that was probably defamatory. The original allegations were reworked to remove the defamatory nature of the material while retaining their essential elements. The Crown Solicitor's Office confirmed that I had achieved both objectives. The amended set of allegations were submitted to the CEO at the City of Gosnells, Mr Stuart Jardine.
I wrote to the City of Gosnells on 20 February advising of the allegations and attaching issues that the department was to assess.
I have attached a copy of the original allegations submitted by Mr Askew and the modified allegations I submitted to the City of Gosnells. I am expecting Mr Askew to challenge the assessment on the basis that it does not address his original allegations. You will note that there is no substantial difference between the original allegations and those provided to the City of Gosnells except to remove emotive and defamatory language.
I have examined the response submitted by council and I am satisfied that the City of Gosnells has no case to answer in terms of any of the allegations made by Mr Askew.
In contrast to the Askew allegations I submit that the City of Gosnells combines accountability and due diligence with a positive, pro‑active approach to solving current problems.
There is some dissension within the elected body but I consider this is based on personalities and ambition.
At paragraphs 3 and 4 on page 3 of the RECOMMENDATIONS:
3. You write to Mr Askew regarding the findings on his allegations. Draft correspondence is attached. The draft contains comment critical of Mr Askew in the approach he took to the allegations and suggests that he apologise to the Council and the administration of the City of Gosnells for the cost, loss of productivity and stress to individuals involved as a result of his unwillingness to provide information to assist Departmental assessment of his allegations about the City of Gosnells and the actions he took in promoting that request.
4. You make a media statement on this issue.'"

The pleas in pars 43.4 and 43.5 are as follows:
" … By the said words Cole meant and was understood to mean that the plaintiff:
…
43.4had knowingly couched his allegations in emotive and defamatory language when they were quite capable of being presented in a non-objectionable way;
43.5was a mere troublemaker as evidenced by the fact that he made complaints on matters he knew or ought to have known the City of Gosnells had no case to answer."
It was submitted on behalf of the seventeenth defendant that neither of the imputations in pars 43.4 and 43.5 was capable of being conveyed by the words complained of. There was nothing that would cause an ordinary reasonable reader to understand that the plaintiff had knowingly couched his allegations in emotive and defamatory language or to understand that he knew or ought to have known that the City of Gosnells had no case to answer.
It was submitted on behalf of the plaintiff that the imputation that the plaintiff knowingly couched the allegations in defamatory and emotive terms arises, in particular, from the fact that his allegations are contrasted with the City of Gosnells' "accountability and due diligence" and from the assertion that the plaintiff's approach gave rise to a need for him to apologise; that is, it gave rise to the implication that he had done something blameworthy. The inference that the allegations could have been presented in a non‑objectionable way appears from the statement that Mr Cole was able to rework the allegations to remove the emotive and defamatory language without making any substantial difference to the allegations.
As I understand the imputation, it is, in effect, that the plaintiff deliberately chose to couch the allegations in emotive and defamatory terms when he knew they could equally well be phrased otherwise. I do not consider that the words complained of are capable of conveying that imputation. The fact that the allegations were able to be reworked to present them in a way which was not emotive or defamatory is not, in my view, capable of causing a reasonable reader to understand that the plaintiff deliberately chose to present them in a defamatory and emotive way. That is, it is one thing to say that allegations could have been phrased in a non‑defamatory and non‑emotive way and another thing to say that the plaintiff deliberately chose not to do so. Allegations may well be, and no doubt frequently are, made in circumstances where no thought is given to the most appropriate form in which they should be formulated. There is not, in my view, in the present case a basis for a reasonable reader to infer that the plaintiff turned his mind to the matter and deliberately chose to present them in an emotive and defamatory way. The statement in the words complained of that the plaintiff should apologise is a reference to an apology for his alleged unwillingness to provide information to assist in the assessment of his allegations and his promotion of the allegations in the media. It is not related to the manner in which the allegations were formulated.
In my view, the imputation is not capable of being conveyed and I would not allow it.
On balance, I would allow par 43.5. I accept the submission of counsel for the plaintiff that the statements in the article that the plaintiff failed to provide substance to his allegations, did not take or return telephone calls in relation to the complaints, or respond to the Minister's requests for evidence supporting the allegations, juxtaposed with statements that the City of Gosnells had exhibited accountability and due diligence, are arguably capable of conveying the imputation. No objection was taken to the form of the imputation.
The final matter is the plaintiff's application to substitute the State of Western Australia for Mr Stephens, the nineteenth defendant.
The application was opposed on two bases. It was submitted first, that the claim against the State of Western Australia was a new claim that did not fall within O 21 r5(3) of the Rules of the Supreme Court and, secondly, that no notice having been given to the State Solicitor pursuant to s 6(1)(a) of the Crown Suits Act1947 (WA) (the "Act") and the cause of action sought to be alleged against the State being in respect of a publication which occurred more than 12 months ago, no right of action lies against the Crown. It was submitted that if the plaintiff wished to commence an action against the State of Western Australia, he must first obtain the consent in writing of the Attorney‑General on behalf of the Crown to bring the proposed action or apply for, and obtain, leave of the Court under s 6(3) of the Act. Compliance with the requirements of the Act is a condition precedent to proceedings against the Crown: Western Australia v Watson [1990] WAR 248; Judamia v Western Australia, unreported; FCt SCt of WA; Library No 960114; 1 March 1996. Those requirements could not be circumvented by an application to substitute a defendant under O 27 r5(3).
An affidavit has been sworn on behalf of the Crown by Ms Hardy, an employee of the State Solicitor, in which Ms Hardy states that she has conducted a search of the records of the State Solicitor's Office for any notice by the plaintiff under s 6(1)(a) of the Act of an intention to commence an action against the Crown and, on the basis of those searches, deposes to a belief that no such notice was received.
In the plaintiff's written outline of submissions it is said that "an application has been brought pursuant to s 6(3) of the Crown Suits Act." Counsel for the seventeenth and eighteenth defendants, instructed by the State Solicitor, said he was unaware of such an application.
Under s 6(3)(a) of the Act, the Court may grant leave to a person to bring an action against the Crown where notice of the proposed action has not been given under s 6(1) of the Act. It is further provided in s 6(3) as follows:
"(3)(a) …
(b)Where the Court considers that the failure to give the notice or the delay in bringing the action as the case may be, was occasioned by mistake or by any other reasonable cause or that the Crown is not materially prejudiced in its defence or otherwise by the failure or delay, it may if it is just to do so, grant leave accordingly subject to such conditions as it thinks it is just to impose.
(c)Before an application is made under the provisions of paragraph (a) the party intending to make the application shall give notice in writing of the proposed application and the grounds on which it is to be made to the State Solicitor, at least 14 days before the application is made."
It was not clear whether, in fact, the current application by the plaintiff, which, so far as it relates to this aspect of the matter, is in terms an application for "leave to file and serve the minute of amended writ of summons to, inter alia, substitute the 19th defendant with the State of Western Australia", was intended to be the application under s 6(3) of the Act. It appears that the State Solicitor did not understand it as an application under s 6(3) and did not approach the hearing on the basis that it was such an application.
An affidavit of the plaintiff has been filed in connection with this application in which, among other things, the plaintiff deposes to and annexes a copy of a letter dated 27 February 2002 to the eighteenth defendant, as the Minister for Local Government and Regional Development, in which the plaintiff informed the eighteenth defendant of an intention to commence legal proceedings against him for defamation. The plaintiff notes in the affidavit that the State Solicitor has not deposed to any prejudice suffered by the State of Western Australia.
In circumstances where it is at best unclear whether this application was intended to be, in part, an application for leave under s 6(3), it is perhaps not surprising that the Crown has not sought to deal with the question of prejudice. The plaintiff's affidavit is silent on the reason that notice of the proposed action was not given in accordance with s 6(1) of the Act.
In a very brief written submission received after the hearing, it was submitted on behalf of the plaintiff that Western Australia v Watson (supra) was authority for the proposition that where the State is the employer, any relevant knowledge by the Minister responsible for the Department in which an employee is employed is knowledge possessed by the State. Such knowledge is actual knowledge possessed by the State. It was submitted that in this case the Minister was informed of the proposed action against him and that this notice was actual notice under the Act to the State Solicitor of the proposed action. As the State received notice of the action, there was no impediment to the substitution of the State for the Minister.
I must say that I am in some uncertainty as to the precise import of that submission. But if the submission is that the plaintiff's letter of 27 February 2002 to the eighteenth defendant is sufficient to satisfy the requirements of written notice to the State Solicitor in respect of the proposed action against the State, I am not presently persuaded that that it is correct.
In the circumstances, I propose to adjourn the application so far as it seeks an order that the State of Western Australia be made a defendant to the action, pending clarification of whether a separate application for leave under the Act has been made or whether this application is intended to be, in part, such an application. In the latter case, I will hear the parties on how that part of the application is to be disposed of.
I would otherwise grant leave to the plaintiff to amend the statement of claim in terms of the minute, save for pars 28.3, 33.3, 33.4, 38.2, 39‑41 and 46. I would grant leave to the plaintiff to file and serve a further amended statement of claim if he wishes to do so. I will hear the parties as to the time within which that should be done and as to costs.