Askew v Morris - [2004] WASC 117

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ASKEW -v- MORRIS & ORS [2004] WASC 117

CORAM: MASTER NEWNES

HEARD: 7 APRIL 2004

DELIVERED : 4 JUNE 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 to set aside default judgment entered against plaintiff - Application to amend statement of claim - Whether imputations arise - Whether embarrassing - Turns on own facts

Legislation:

Rules of the Supreme Court1971 (WA), O 6 r 3, O 20 r 2(2)

Result:

Judgment set aside
Application to amend statement of claim allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr P A Heywood-Smith QC & 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     :     No appearance
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     :     Minter Ellison
Nineteenth Defendant    :     State Solicitor
Twentieth Defendant     :     No appearance
Twenty-First Defendant :     Phillips Fox

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

Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services v Lumley General Insurance Ltd [2004] WASC 98
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gascoine v McGinty (1995) 14 WAR 542
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260
Taylor v Jecks (1993) 10 WAR 309
Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1993) 10 WAR 233

Case(s) also cited:

Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 App Cas 741
Chapman v Australian Broadcasting Corporation (2000) 77 SASR 181
Chesson v Green [2002] WASCA 67
Coyne v WA Newspapers Ltd (No 1) (1996) 15 WAR 51
Farqhar v Bottom [1980] 2 NSWLR 380
Gardiner v John Fairfax & Sons (1942) 42 SR (NSW) 171
Hoad v Nationwide News Pty Ltd, unreported; SCt of WA; Library No 960617; 24 October 1996
Hough v London Express Newspaper Ltd [1940] 2 KB 507
Jones v Amalgamated Television Services (1991) 23 NSWLR 364
Keogh v Incorporated Dental Hospital of Ireland [1910] 2 Ir 577
Lewis v Daily Telegraph [1963] 1 QB 340
Mirror Newspapers v World Hosts Pty Ltd (1979) 141 CLR 632
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Port Kennedy Golf Country Club Pty Ltd v Port Kennedy Resorts Pty Ltd [1999] WASC 253
Powell v Gelston [1916] 2 KB 615
Re Jokai Tea Holdings Ltd [1993] 1 All ER 630
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] NSWLR 472
Samuels v Linzi Dresses [1981] QB 115
Singleton v French (1986) 5 NSWLR 425
Skahill v Kestral Holdings Pty Ltd (In Liq) [2000] WASCA 185
Slatyer v Daily Telegraph Co Ltd (1908) 6 CLR 1
State of Queensland v JL Holdings Pty Ltd (1997) 141 ALR 353
Stubbs v Russell [1913] AC 386

MASTER NEWNES: This is an application by the plaintiff to set aside a judgment entered against him on 17 December 2003, following his failure to comply with a springing order made on 7 November 2003, and for leave to amend the statement of claim.
It is appropriate, before turning to the circumstances in which judgment was entered, to say something about the history of the action.
The writ of summons was issued on 5 March 2003. At the time the plaintiff was acting in person. There were some initial delays caused by issues relating to service and difficulties with the form of the writ. One of those difficulties was that initially the statement of claim was attached to the writ, contrary to O 6 r 3 of the Rules of the Supreme Court1971 (WA). The statement of claim was struck out by order of the Court on 21 May 2003.
An amended statement of claim was filed and served on 10 June 2003. On 14 July 2003 the defendants made an application to strike it out. On about 1 October 2003 the plaintiff appointed a solicitor. On 3 October 2003, an order was made that the plaintiff have leave to file and serve an amended statement of claim by 3 November 2003. No amended statement of claim was filed by that date, but by an affidavit of 24 October 2003 the plaintiff's solicitor sought an extension of time in which to amend the statement of claim. On 7 November 2003, the matter came before me in chambers and, after hearing argument, I made orders first, that the statement of claim be struck out (an order to which the plaintiff consented) and secondly, that the action be dismissed and judgment be entered for the defendants with costs unless, on or before 12 December 2003, the plaintiff filed an application for leave to amend the statement of claim, together with a minute of the proposed statement of claim.
On 8 December 2003, the plaintiff filed and served an amended statement of claim against the first, seventh to tenth, thirteenth, seventeenth, nineteenth and twenty‑first defendants, but did not file any application to amend the statement of claim. On 15 December 2003, the solicitors for the seventeenth and nineteenth defendants entered judgment for the defendants for failure of the plaintiff to comply with the order of 7 November 2003.
The plaintiff then filed an application to extend the time for the filing and service of an application for leave to amend the statement of claim. The plaintiff did not, however, seek to set aside the judgment. An application to do so, and for leave to amend the statement of claim, was filed on 31 December 2003 and amended on 19 January 2004. That is the application that is now before me.
In an affidavit sworn 22 December 2003 in support of the application, the plaintiff's solicitor, Ms Askew, says that the notes she took while appearing as counsel for the plaintiff at the hearing on 7 November 2003 did not indicate that the plaintiff was required to apply for leave to amend the statement of claim. Accordingly, Ms Askew said she simply filed an amended statement of claim on 8 December 2003. Ms Askew says that, although the order of 7 November 2003 was extracted by the solicitors for the seventeenth and nineteenth defendants, she was not served with a copy of it. Ms Askew says that she first learnt that judgment had been entered against the plaintiff when she was served with a copy of the judgment on 19 December 2003.
It was submitted on behalf of the plaintiff that there had been no deliberate disregard of the order of 7 November, nor had the plaintiff's conduct prior to that date indicated anything other than a desire to pursue the action as expeditiously as he could. What had led to judgment being entered was a misunderstanding on the part of the plaintiff's solicitor as to what the orders of 7 November 2003 required to be done.
It is not easy to understand from a review of the transcript of the hearing on 7 November 2003 how the plaintiff's solicitor failed to understand that the plaintiff was required to file and serve an application to amend the statement of claim by 12 December 2003. Nevertheless, I accept that, however it came about, that is what happened. It is evident from the fact that the proposed amended statement of claim was filed and served on 8 December 2003 that Ms Askew was under the impression that that was all that was required to be done by 12 December. The filing and service of an application for leave to amend the statement of claim was a simple and straightforward task and its omission could only have been by oversight or error.
The defendants did not suggest that any substantive prejudice had been caused by the plaintiff's failure to file and serve the application to amend within the time required.
In my view, the judgment should be set aside, provided the plaintiff has an arguable claim against the defendants. In that respect, it is significant that the proposed statement of claim does not plead a cause of action against the second to sixth, eleventh, twelfth, fourteenth to sixteenth and twentieth defendants. The plaintiff, by Senior Counsel, has said that he does not wish to proceed against those defendants. In the circumstances, I see no point in setting aside the judgment which currently exists in their favour.
It is therefore necessary, with respect to the other defendants, to turn to the question of whether the proposed statement of claim discloses an arguable cause of action.
The principles to be applied on an application of this sort are relatively well established. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319.
The test to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of was discussed is the well‑known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 ‑ 1371:
"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:
'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid said, at 258:
"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."
In that case, Lord Devlin said:
"When an imputation is made in a general way, the ordinary man is not likely to distinguish between hints and allegations, suspicion and guilt. It is the broad effect that counts and it is no use submitting to a judge that he ought to dissect the statement before he submits it to the jury … it is the broad impression conveyed by the libel that has to be considered and not the meaning of each word under analysis. A man who wants to talk at large about smoke may have to pick his words very carefully if he wants to exclude the suggestion that there is also a fire …"
Moreover, as Holroyd Pearce said in the Court of Appeal in the same case, reported at [1963] 1 QB 340 at 374:
"When persons publish words that are imprecise, ambiguous, loose, fanciful or unusual, there is room for a wide variation of reasonable opinion on what the words mean or connote. The publisher can hardly complain in such a case if he is reasonably understood as having said something that he did not mean"
There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J at 301.
The imputation pleaded must specify "the precise act or condition asserted of, or attributed to" the plaintiff: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678 and Taylor v Jecks (supra) at 319, and distinct imputations must be separately pleaded as there is potential for confusion with rolled up imputations and a plea in that form will be embarrassing: Taylor v Jecks (supra) at 319-320. But as Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, [at 137], 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 the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology.
The action involves 13 separate publications and a total of some 70 pleaded imputations. The defendants attacked every one of the imputations. It is therefore necessary to consider each of the publications in turn.
The claim in respect of the first publication is pleaded in pars 13 to 18 of the minute. It is alleged that a special Council meeting of the City of Gosnells was held on 19 March 2002 to discuss the response by the City to allegations made to Mr Stephens, Minister for Local Government and Regional Development, by the plaintiff. It is pleaded that at the meeting the thirteenth defendant, Mr Jardine, in his capacity as Chief Executive Officer of the City, spoke the words set out in par 15, which were then incorporated in the minutes of the meeting and published on the internet. The words pleaded in par 15 are as follows:
"Before the Council tonight is a most serious issue. Speaking on behalf of the Executive, I would like to make it clear to Councillors that we believe it is time we received some natural justice. As outlined in the information pertaining to the assessment that is before you, there is no case to answer. Given there is no case to answer, the Executive seeks a formal retraction of each and all of the allegations raised. The Department of Local Government has indicated that it has received advice that the allegations made against the Executive are considered too defamatory to be released in the public domain.
Given this advice, I consider that my reputation and the reputations of the Executive have been defamed. We find this upsetting and offensive.
Tonight is not about semantics or clever quasi‑legalistic debates. If I might give you an example, if someone asks the question 'are you still beating your wife?' no matter how you respond, the damage has been done. Those who do not know you will still believe you have beaten your wife at some time. It is our belief these allegations have had a similar effect. It does not matter how it is dressed up, the damage has been done. This is the situation the Executive Team now finds itself in.
The assessment of allegations has consumed considerable Council resources since the New Year not to mention opportunity costs. It is the Executive's intention to disclose the costs involved to the citizens of the City of Gosnells.
The Executive has complied fully with the disclosure requirements of the Officers of the Department of Local Government. All relevant Council records have been made available in response to the assessment. The Department's officers have systematically analysed and assessed the documentation.
Further, as your CEO, I am required to conform to the Local Government Act 1995, Council's decisions and City Policies and Processes. As your CEO, I will not work outside of these constraints to respond to threats or intimidation. Attacks on my staff, while attention getting, will not cause us to deviate from this course. I am answerable to the Council. As the CEO, it is not unreasonable to expect that I should be able to carry out my duties without fear or favour to the benefit of the whole community, and without fear of recrimination. It is my intention to vigorously pursue this issue with the Minister for Local Government.
It is the Minister's decision to investigate the manner in which recent calls for inquiries into the City have been made. The Executive welcomes the investigations.
To the future. Despite the current environment, the Council continues to do much good work. Over the past three years, the City of Gosnells has had an excellent record of achievement. It is the belief of the Executive Team that accusations and counter-accusations which occupy the time and resources of the City should cease and that the City must adopt a positive outward looking culture. To fail to do so will damage our collective standing in the community we serve.
Tonight's meeting offers an opportunity for the Council. Do we have the will to change the current culture and resultant environment? We hope we do. From the Executive's perspective, our expectation is that Council will move on. If we are to function as an effective Council, mutual accountability is essential. We believe the current assessment by the Department has held us to account. Mutual accountability now requires others to do the same.
We should all be held accountable for our actions. It is the basis of teamwork. At the end of the day we are all here for the same purpose - to serve the community of the City of Gosnells.
Quote - Othello, Act III, Scene iii
'Who steals my purse steals trash which is nothing but the person who takes my good name robs me and makes me poor.'"

The identification of the plaintiff is pleaded in par 16 where it is alleged that the words referred and were understood to refer to the plaintiff by reason of:
"Particulars of Reference
16.1Morris referred to the allegations made by the plaintiff to Stephens in her speech made prior by her to the words published by Jardine at paragraph 15 hereof;
16.2The residents of the City of Gosnells were aware of the plaintiff having made allegations referred to in the said words by way of an article published on the front page of the Examiner newspaper on or about 17 January 2002; and
16.3By reason thereof the plaintiff was identified by a large but unquantifiable number of readers of the said words."
The imputations which the plaintiff alleges were conveyed by the words spoken by Mr Jardine are pleaded in par 18 as follows:
"18.The said words are defamatory in their natural and ordinary meanings. By the said words Jardine meant and was understood to mean that the plaintiff was:
18.1an unreliable person lacking in judgement as to what might constitute conduct which may, or may not require the careful scrutiny of the Minister and his Department;
18.2a publisher of defamatory, and therefore by implication, untrue concerns and or allegations;
18.3given to publishing defamatory material of such a nature that it needed to be sanitised, or made clean before it could be considered as fit for publication abroad;
18.4not representing the best interests of the ratepayers, electors and residents of the City of Gosnells;
18.5a dishonourable elected member of the City of Gosnells given to disingenuous casuistry and disgraceful conduct in order to cause unnecessary trouble for the council and certain of its officers and to deny natural justice to same;
18.6 had threatened and intimated Jardine; and
18.7was responsible for the unnecessary expenditure of monies, time and resources of the council."
It was argued by counsel for Mr Jardine that none of the imputations pleaded was capable of being conveyed by the words complained of. Counsel submitted in relation to par 18.1 that there was no reference in the words to the plaintiff's judgment or reliability. He also argued that two distinct imputations had been rolled into one, one concerning reliability and another concerning judgment. The imputation was also embarrassing in referring to conduct which "might or might not require the careful scrutiny of the Minister and his Department" and it was vague and imprecise.
Senior Counsel for the plaintiff argued that the imputation was capable of being conveyed by the words complained of, in particular by the opening paragraph and by the references to the allegations having consumed considerable council time and resources.
In my view, the pleaded imputation is embarrassing in the respects complained of by the defendants. I also consider that there is nothing in the words complained of which is capable of conveying an imputation to the effect pleaded. I would not allow the imputation.
The defendants next attacked par 18.2. It was submitted that the plea again rolled up two distinct imputations, one relating to defamatory matter and the other relating to untrue matter. It was also submitted that it was not defamatory to say of a person that he had published material that was defamatory of another.
The plaintiff's Senior Counsel referred to Gatley on Libel and Slander, 10th ed, par 1.3 where the learned authors say:
"Defamation is committed when the defendant publishes to a third person words or matter containing an untrue imputation against the reputation of the claimant".
Counsel also referred to Gatley at par 2.19 where the learned authors say that it has been held defamatory to publish of a person that he is a libeller or slanderer. Counsel acknowledged that that did not mean that the same conclusion necessarily followed in this, or any other case, but argued that it would be difficult to say that such an imputation was not arguably defamatory. I accept that it is not unarguable and I would allow par 18.2.
The defendants next attacked par 18.3 on the ground that the pleaded imputation was not capable of being conveyed by the words complained of, that it did not sufficiently distil a defamatory meaning and it was so vague as to be embarrassing. It was again submitted that it was not defamatory to say that the plaintiff has published material that was defamatory of another person.
Counsel for the plaintiff referred, in particular, to the last sentence in the first paragraph of the words as a sufficient basis for the imputation.
In my view, the imputation is not capable of being conveyed by the words complained of. To say that a person is "given to" publishing defamatory material of a certain nature is to assert that the person is generally disposed or has a propensity to do so. I do not consider there is a basis in the words complained of for an imputation to that effect. I would not therefore allow par 18.3.
The defendants' objection to par 18.4 was that there was nothing in the words complained of which referred, or was capable of being understood to refer, to the plaintiff in his capacity as a representative of ratepayers, electors and residents. I accept that submission and would not allow par 18.4.
The plea in par 18.5 was objected to by the defendants on the basis that it did not sufficiently distil the defamatory meaning relied upon and in any event, the pleaded imputation did not arise from the words complained of. I accept that the words are not capable of giving rise to the imputation. I do not consider that a reasonable reader could consider the words to mean that the plaintiff is "given", that is, generally disposed or prone, to conduct of the sort pleaded. I also consider that the imputation is unclear, rolling up as it does, in my opinion, a number of distinct allegations into one. I would not allow par 18.5.
The defendants attacked par 18.6 on the ground that it was not capable of being conveyed by the words complained of. It was submitted that there was no suggestion in the words that Jardine had been threatened or intimidated. Jardine had merely said that he would not respond to threats or intimidation.
In my view, the imputation is arguably capable of being conveyed. In the context of a speech by way of response to allegations made by the plaintiff, the comment contributed to Mr Jardine is capable of being understood by a reasonable reader as referring to threats or intimidation by the plaintiff. I would therefore allow par 18.6.
The final imputation, pleaded in par 18.7, was objected to by the defendants on the grounds that it did not arise from the words complained of and was not arguably defamatory of the plaintiff.
The statement in the article to the effect that the assessment of allegations against the City had resulted in the unnecessary expenditure of time, money and resources, in a speech directed to allegations made by the plaintiff, is arguably sufficient to convey the meaning pleaded. In my view, however, it is not defamatory simply to say of a person that he has been responsible for unnecessary expenditure of time, money and resources having been incurred by a local authority. A person can be said to be responsible for such unnecessary expenditure without any discreditable conduct on their part. It might be said, for example, of any person who in good faith makes a complaint to a local authority that they have caused unnecessary expenditure of that sort if, after investigation, the complaint turns out to be groundless. If it is sought to allege an imputation that the unnecessary expenditure came about by reason of some discreditable conduct on the defendants' part, that would need to be pleaded expressly. I would not therefore allow par 18.7.
I now turn to the second publication complained of by the plaintiff. That is pleaded in par 19 as follows:
"19.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, Ron 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 imputations alleged to be conveyed by those words are pleaded in par 22 as follows:
"22.The said words are defamatory in their natural and ordinary meanings. By the said words Jardine and the City of Gosnells meant and were understood to mean that the plaintiff:
22.1was responsible for the City of Gosnells incurring unnecessary expenses in money, time and resources to the value of $65,000;
22.2was worthy of sanction for resigning and forcing the City of Gosnells into incurring an additional unnecessary $40,000 expense;
22.3was responsible for needlessly depriving the City of Gosnells of $105,000 which could well have been better spent elsewhere;
22.4had caused financial, social, and psychological injuries to staff and unnamed persons who lived, worked or had businesses in the City of Gosnells;
22.5had put in jeopardy the international standing and reputation of the City of Gosnells;
22.6 was a defamer;
22.7was a troublemaker and media seeker who lacked judgement and acted for improper motive; and
22.8was a deluded and incompetent councillor and individual."
The defendants attacked par 22.1 on the ground that it did not sufficiently distil the act or condition allegedly attributed to the plaintiff by the words. The imputation is in essentially the same terms as that pleaded in par 18.7 and for the reasons I gave in relation to that plea, I would not allow par 22.1.
The next imputation, pleaded in par 22.2, was attacked by the defendants on the basis that it was not capable of being conveyed by the words complained of. The circumstances in which the election became necessary are not referred to and the words refer simply to the fact that an election is to be held and the cost of it. I accept that submission. I do not consider there is anything that is capable of conveying an imputation that the election had been caused by the plaintiff in a manner that warranted sanction. I would therefore not allow par 22.2.
The defendants argued that the imputation pleaded in par 22.3 did not arise and, in any event, did not distil a defamatory meaning. For the reasons I gave in relation to par 18.7, I do not consider the imputation pleaded is defamatory of the plaintiff. I do not think the words "could well have been better spent elsewhere", add anything. It is, I think, probably axiomatic that money of which a body is needlessly deprived could have been better spent elsewhere by that body.
It was submitted by the defendants that the imputation pleaded in par 22.4 was not capable of being conveyed by the words complained of. It was argued that there was nothing that a reasonable reader could understand as a reference to any financial, much less any social and psychological, injuries to unknown persons who lived, worked or had businesses in the City of Gosnells. In my view that objection is made out. The imputation also rolls a number of distinct allegations into one and for that reason is embarrassing. I would therefore not allow par 22.4.
The defendant's objection to par 22.5 was that the plea did not distil a defamatory meaning. I think the objection is well‑founded. As it stands, it is difficult to give any clear meaning to the imputation. If it is alleged by the plaintiff that the article meant that some discreditable conduct on his part had put the reputation and standing of the City in jeopardy, that conduct should be specified. I would not allow the plea.
The defendants reiterated in relation to par 22.6 their contention that it was not defamatory to say of a person that he was a defamer. For the reasons I have previously given, I consider that it is arguably defamatory to do so and I would therefore allow the plea.
In relation to par 22.7, the defendants submitted that the plea rolled up a number of discrete imputations. It was argued that the concepts of "trouble maker" and "media seeker" were quite distinct, as were the allegations of lacking judgment and acting for improper motives. I accept that submission. I consider that for those reasons the plea is embarrassing and I would not allow it in that form.
The final imputation relating to this publication, pleaded in par 22.8, was subject to the same objection that it rolled discrete imputations into one. It was also argued on behalf of the defendants that the imputation was not capable of arising from the words complained of. Counsel for the defendants submitted that to be deluded and to be incompetent are quite distinct traits and, likewise, to exhibit those traits in the different capacities of a councillor and a private individual involved distinct matters.
It was argued on behalf of the plaintiff that "deluded" simply meant wrong in judgment or lacking judgment. It was submitted that the references to the plaintiff having been wrong in his judgment, and having pursued unfounded allegations so vigorously, supported the imputation.
I doubt that "deluded" can be regarded as a synonym for wrong in judgment or lacking in judgment but, in any event, I accept the defendants' complaint that the imputation rolls up at least two distinct imputations, one relating to being deluded and the other to being incompetent. I would not therefore allow the plea.
The defendants took several objections to par 24 of the statement of claim, which is in the following terms:
"The natural and probable consequence of the original publication by Jardine and the City of Gosnells as pleaded above [in par 18], was that the said words together with the imputations arising therefrom were republished in articles in the Examiner newspaper of 30 May 2002 titled 'Council takes aim' and the Comment News of 14 May 2002 titled 'City cleared of allegations', and the Comment News of 21 May 2002 titled 'Inquiry costs anger'."
It was submitted that the plea did not adequately plead a cause of action because it did not set out the terms of the alleged defamatory words or the imputations said to arise from them. Senior Counsel for the plaintiff accepted that, but said that the plaintiff did not rely on the plea to give rise to a cause of action but simply on the question of damages. On that basis I would allow it.
Senior Counsel for the plaintiff said that, similarly, pars 28, 33, 35, 37, 53, 57, and 61 – which are in similar terms - were each relied upon only on the issue of damages and not as giving rise to a cause of action. No reference was made to pars 40 and 44 which are to a similar effect. I take it that that was an oversight and that they too are relied upon only on the question of damages. If I were wrong about that, then those pleas would, in my view, plainly be objectionable for the reasons submitted by the defendants and I would strike them out.
There are, however, difficulties with the pleas in pars 33, 35, 53, 57 and 61. There appears to be an element of duplication in the pleas in pars 33 and 35. More importantly, in neither case is it alleged that there was in fact any republication. Paragraph 33 pleads that the words were published with the intention that they would be republished in the local press and in the knowledge they would be published in the manner pleaded in par 14. But there is no plea that the words were published in the local press. In par 14, it is pleaded that all Council minutes are published on the internet and available in public libraries in the City. It is not, however, alleged that the words to which par 33 refers were included in the minutes of the Council.
Similar problems arise with pars 53, 57 and 61. In each case it is alleged that the words were published of the plaintiff with the intention that they would be republished in the Council minutes but there is no allegation that they were in fact so republished.
As they stand, the allegations in pars 33, 35, 53, 57 and 61 are irrelevant and embarrassing and I would strike them out.
The third publication is pleaded in par 25 and 26 of the statement of claim, which are in the following terms:
"25.Morris and the City of Gosnells published a press release titled Mayoral Statement on or about 6 May 2002. The heading of this press release was 'Statement from the City of Gosnells Mayor, Cr Pat Morris JP'.
26.In this statement Morris said the words:
'The Minister for Local Government, Hon Tom Stephens, has today confirmed that a series of baseless, unsubstantiated allegations against the Chief Executive Officer, the Executive Team and the staff at the City of Gosnells are unfounded.
Over the past four months, I have been extremely distressed to see the City of Gosnells, and the Chief Executive Officer Stuart Jardine, publicly denigrated by a former Councillor, who has now resigned from the Council.
Today's announcement by the Minister has upheld the good standing of the City, and its management by our CEO and Executive Team.
Throughout this issue, Mr Jardine has been personally attacked, and I am extremely pleased to see the Minister announce that all 28 allegations against the Council have no basis whatsoever. The Minister has also publicly acknowledged the professional manner in which the Council and its staff have dealt with and responded to the claims against Council.
From the outset of this unfortunate issue, the Chief Executive Officer, the Executive Team, and the staff at the City of Gosnells have had my and the Council's support, less one councillor. Furthermore, this issue has had to be addressed at a significant cost to the ratepayers of this City, which in my view, could have been better spent in our community.
These baseless allegations were made against professional people who were clearly aware of their responsibilities and obligations imposed on them by the 1995 Local Government Act.
The Crown Solicitor considered the allegations too defamatory to be released and therefore a copy had to be obtained through the Freedom of Information Act. Consequently, our CEO, the Executive Team, and the staff were unable to completely defend themselves until the allegations had been investigated.
Over the past 4 months, it has become evident to me that the current process of investigating claims made against the Local Government is arduous, damaging to those involved, and often a waste of resources. This is a matter which WALGA is now taking up with the Minister and the City of Gosnells will be providing appropriate input.
The situation here at the City of Gosnells is a clear illustration that changes must be made to the local government system so people making complaints must have to substantiate their allegations.
I congratulate our CEO, the Executive Team and the staff on the professional way they have handled these allegations and I look forward to getting our focus back onto the leadership and management of the City of Gosnells.'"

The plaintiff pleads that the words were understood to refer to the plaintiff by reason, in effect, of the earlier publication and the fact that residents of the City and readers of Comment News were aware of the plaintiff having made the allegations referred to. The imputations alleged to be conveyed by the words are pleaded in par 29 as follows:
"The said words are defamatory in their natural and ordinary meanings. By the said words Morris meant and was understood to mean that the plaintiff:
29.1had publicly denigrated Jardine continuously over the past 4 months;
29.2had waged a campaign of denigration not only on the CEO and the Executive Team but also on the whole of the staff at the City of Gosnells;
29.3given to making baseless and harmful allegations in that he had compiled a list of 28 concerns or allegations which he had forwarded to the Minister and which were baseless;
29.4an unreliable person lacking in judgement as to what might constitute conduct which may, or may not, require the scrutiny of the Minister and his Department;
29.5a defamer of innocent people; and
29.6given to publishing defamatory material considered by the Crown Solicitor to be unfit for public release."
The defendants objected to each of the pleaded imputations.
In relation to par 29.1, the defendants submitted that the imputation was not defamatory of the plaintiff and, further, that it did not distil a defamatory meaning. I do not accept those submissions. In my view, the imputation is arguably defamatory of the plaintiff. In the similar way to an imputation that the plaintiff is a defamer, it is, I think, arguably defamatory to say that a person has waged a lengthy campaign to denigrate a person; that is, to "blacken the reputation of; defame": The New Shorter Oxford Dictionary. I would therefore allow the plea.
The defendants submitted that the imputation pleaded in par 29.2 did not arise from the words complained of and, further, that it did not distil a defamatory meaning. On the first ground, it was submitted that there was no reference in the article to the plaintiff waging a campaign of denigration "on the whole staff at the City of Gosnells". The plaintiff, on the other hand, relied particularly on the first two paragraphs of the words attributed to Morris.
In my view, it is arguable that the words give rise to the pleaded imputation. I also consider that the imputation is arguably defamatory to the plaintiff. I would therefore allow the plea.
The same objections were taken by the defendants to par 29.3. In my view, the imputation is not capable of arising from the words complained of. As I have said earlier, the assertion that a person is "given" to certain conduct conveys the meaning that the person is generally disposed or has a propensity to engage in conduct of that nature. In this case I do not consider there is anything that could give rise to an imputation that the plaintiff had such a propensity simply because he compiled a list of 28 allegations and forwarded them to the Minister. I would not allow the plea.
The defendants objected to par 29.4 on the basis that it did not distil a defamatory meaning. I would not allow the plea for the reasons I gave in relation to the comparable imputation in par 18.1.
I do not accept the defendants' complaints that par 29.5 is not arguably defamatory and does not distil a defamatory meaning. For the reasons I gave in relation to par 18.2, I consider that the imputation is arguably defamatory of the plaintiff.
I would not allow par 29.6 for the reasons I have given in relation to par 29.3. There is nothing, in my view, in the words complained of to support an imputation that the plaintiff had a propensity to publish material of that nature. The statements in the article that on this occasion the Crown solicitor considered the particular allegations concerned were too defamatory to be released is not capable of making out such an imputation.
The next publication complained of by the plaintiff is pleaded in par 30 of the statement of claim which is in the following terms:
"On the City of Gosnells web site on the 7 May 2002 the City of Gosnells and Jardine published a news article titled 'Allegations Against Council "Baseless"'. The article contains statements attributable to Jardine.
'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 that 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 City is running an extraordinary election to replace former Councillor 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 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 now address the environment, and the procedures, in our Council that allowed Mr Askew to progress his unfounded allegations so forcefully, at the expense of City of Gosnells ratepayers, and the reputations of many elected members and staff."
He concluded by saying, "Let's get back to the real business of serving our local community. I am not interested in any other agendas".'"
The plaintiff relies in par 31 upon the same imputations as are pleaded in par 22. For the reasons I gave in relation to par 22, I would allow par 31.6, but would not allow the other imputations.
The fifth publication complained of by the plaintiff is pleaded in par 32 of the minute as follows:
"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 imputations which the plaintiff contends arise from those words are pleaded in par 34 as follows:
"The said words are defamatory in their natural and ordinary meanings. By the said words the defendant Jardine meant and was understood to mean that the plaintiff:
34.1is a defamer;
34.2is a troublemaker;
34.3is a thoroughly unreliable person lacking in judgement as to what might constitute conduct which may, or may not require the scrutiny of the Minister and his Department;
34.4is responsible for the City incurring [sic] unnecessarily incurring expenses in money, time and resources to the value of $65,000 in producing the council report; and
34.5is responsible for causing the City of Gosnells to waste around $65,000 reporting on baseless and unsubstantiated allegations."
The defendants again objected to each of the pleaded imputations.
The first objection, to par 34.1, was on the ground that it was not defamatory. For the reasons that I have already given, I consider that it is arguably defamatory and I would allow the plea.
The objection to par 34.2 was that the imputation was not capable of arising from the words complained of. The plaintiff relied for that meaning, in particular, on the statements that the plaintiff had made baseless, defamatory allegations about the City of Gosnells Executive Team, which had cost the City some $65,000 to respond to and which were of such a nature that, if circulated in the Department's report, could cause mischief in the run‑up for the next local election. In my view, those passages, in the context of the article, are arguably capable of giving rise to the pleaded imputation and I would therefore allow the plea.
The next objection, to par 34.3, was first, that the meaning alleged was not capable of arising from the words complained of and, alternatively, that it did not distil a defamatory meaning. A similar imputation is pleaded in relation to par 29.4 and for the reasons as I gave in respect of that plea, I would not allow par 34.3.
The imputation pleaded in par 34.4 was objected to on the basis that it did not distil a defamatory meaning. I accept that objection. In my view, the pleaded imputation is objectionable for the reasons I gave in relation to par 18.7.
The same objection was taken by the defendants to the plea of par 34.5. The difficulty with this plea is that it is not clear what is intended. That is, it is not clear whether what is meant by " baseless and unsubstantiated allegations" is no more than that the allegations turned out in fact to be unfounded or, on the other hand, whether it is intended to mean that the plaintiff made the allegations when he had no basis for doing so. If the former, then I would not consider it to be defamatory. As it stands, the plea is ambiguous and therefore embarrassing. If it is sought to contend that the plaintiff has acted in some discreditable way in making the allegations, that would need to be pleaded explicitly. I would not allow the plea.
The sixth publication is pleaded in par 36 of the minute, which is in the following terms:
"At an Ordinary Council Meeting held at the City of Gosnells on the 28 May 2002 Iwanyk said (whilst addressing the issue of the plaintiff's responsibility for the $65,000 cost of the council's response):
'Mr Askew should have checked his facts before opening his mouth and putting his foot in it before running off to the newspapers'."
The defamatory imputations alleged by the plaintiff are pleaded in par 38 as follows:
"The said words were defamatory in their ordinary and natural meaning. By the said words Iwanyk meant and was understood to mean that the plaintiff:
38.1has sought out publicity for himself from the press before he has first checked the facts and aired his concerns to the Minister to the detriment of the city of Gosnells, staff and community: and
38.2acted with a lack of judgment in seeking publicity from the press."
The defendants say that the meaning alleged in par 38.1 does not arise and, further, the plea does not distil any defamatory meaning.
In my view, the imputation as formulated is not capable of being conveyed by the words complained of. The words refer only to the plaintiff failing to check his facts before taking his complaints to the newspapers. The references in the imputation to a failure to air his concerns to the Minister and detriment to the City, staff and community, have, in my view, no basis in the words complained of. I would not allow the plea.
The defendants say that the meaning alleged in par 38.2 is not defamatory of the plaintiff. I accept that. I do not consider that it is defamatory to say of a person that he acted with a lack of judgment on one occasion. It is said that even Homer nodded. It is not alleged the words imputed a general lack of judgment. I would not allow the plea.
A further imputation is pleaded in par 38A in the following terms:
"The plaintiff was motivated in his actions of making allegations of a defamatory nature against officers of the City of Gosnells by a desire for publicity."
The imputation pleaded in par 38A was attacked by the defendants on the ground that it was not capable of being conveyed by the words complained of and, alternatively, did not distil a defamatory meaning.
In my view, the objection that the imputation is not reasonably capable of being conveyed by the words complained of is made out. A statement that a person has aired complaints with a newspaper before checking the facts is not, in my view, capable of conveying to a reasonable reader that the motive for making the complaints in the first place was a desire for publicity. Such conduct may well be to be attributable to a desire to gain publicity for the allegations, but that is a different thing to impugning the motive for making the allegations. I would not allow the plea.
The seventh publication is pleaded is pleaded in par 39 of the statement of claim, which is as follows:
"In a press release from the City of Gosnells titled: 'Second set of Councillor Accusations also Baseless' dated 30 July 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 imputation said to be conveyed by those words are pleaded in par 41 and are as follows:
"The said words are defamatory in their natural and ordinary meanings. By the said words Jardine and the City of Gosnells meant and were understood to mean that the plaintiff:
41.1had engaged in a deliberate and long running political campaign of disruption in collusion with Councillor Searle in reckless disregard that such behaviour could have serious consequences for the City of Gosnells and its citizens and staff;
41.2had, together with Cr Searle prevented Councillors and staff from properly focussing on the effective running of the City up till now;
41.3had with Cr Searle made baseless allegations;
41.4had, together with Cr Searle, caused unnecessary expense to the City of Gosnells and wasted considerable resources; and
41.5had, with Cr Searle needlessly caused distraction and uncertainty for City of Gosnells staff and the Executive."
The defendants attacked each of those imputations.
It was submitted in relation to the imputation of par 41.1 that it was not capable of arising from the words complained of and it did not distil a defamatory meaning.
In my view, the references in the words complained of to a "long running political disruption fostered by Cr Tom Askew and Cr Searle", to Councillor Searle's claims being a repetition of baseless allegations made by the plaintiff and to upheaval created by "the baseless allegations of both former Cr Askew and Cr Searle" having caused needless expense for the community and distraction and uncertainty for City staff, are sufficient for the imputation arguably to be conveyed. I would allow it.

The defendants made the same complaints about par 41.2. I consider that, on balance, the plea arguably makes out a defamatory imputation that is capable of being conveyed by the words complained of. I would therefore allow the plea.
The complaint about par 41.3 was that it did not distil a defamatory meaning and was embarrassing. I accept that submission. For the reasons I have given in relation to par 34.5, I would not allow the plea.
The defendants contended that par 41.4 did not distil a defamatory meaning. For the reasons I have given in relation to par 18.7, I do not consider that the imputation is defamatory of the plaintiff.
The defendants made the same complaint about par 41.5 and, in addition, contended that any imputation was not defamatory of the plaintiff. I accept that it is not clear what the imputation means. That, I think, is because the imputation focuses on the alleged consequences of unspecified acts of the plaintiff, rather than specifying the act or condition which the plaintiff alleges the article attributed to him. The same problem, it seems to me, underlies other the imputations pleaded by the plaintiff in this action. I would not allow the plea.
The eighth publication pleaded by the defendants is set out in par 42, which is in the following terms:
"In a press release dated 30 July 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 Minister 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.'"
The imputation said to be conveyed by the words pleaded are set out in par 45:
"The said words are defamatory in their natural and ordinary meanings. By the said words Morris meant and was understood to mean that the plaintiff:
45.1was guilty of taking personal matters outside of council by masquerading them as legitimate concerns which ought to have been examined by the Minister but which were properly the domain of elected members of the City of Gosnells;
45.2adversely embroiled the staff and councillors in matters motivated by the plaintiffs personal aspirations and political agendas;
45.3acted with an improper purpose;
45.4 caused City of Gosnells' staff and councillors' time and resources to be wasted on defending plaintiff's claims that were unfounded; and
45.5was deceitful and duplicitous."
Once again, the defendants attacked each of the imputations.
The defendants argued that the words complained of concerned allegations made by Councillor Searle, not the plaintiff, who was not mentioned. On that basis none of the imputations could arise. The plaintiff's counsel, on the other hand, submitted that, as pleaded in par 43, residents of the City and readers of the Examiner and Comment News newspapers were aware that the plaintiff had previously made allegations of a similar type to those of Councillor Searle. Such people would therefore understand the words to refer not only to Councillor Searle but also to the plaintiff.
I should observe as a preliminary matter that, although it is pleaded in par 44 that the words were written with the intention they be republished in the press, it is nowhere pleaded that they were so republished. Indeed, apart from the statement that the press release was "issued from the City of Gosnells", there is no allegation of publication of the words to anyone. The persons to whom the press release was "issued" are not identified. That is not, however, a matter that was raised in this application and for the moment I will deal only with the issues raised as to the form of the imputations, on the basis that there was some publication to persons having knowledge of the plaintiff's earlier allegations.
The defendants complain that the imputation in par 45.1 does not arise and, further, that it does not distil any defamatory meaning. The plaintiff relied, in particular, on the reference in the opening paragraph to the City having "again being cleared of allegations made by a disgruntled councillor" and to the statements that 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" and that the Council should not be used as a tool to advance personal aspirations and other political agendas. It was submitted that in light of those passages, in the context of the article as a whole, the imputation was plainly capable of arising.
I accept that there are parts of the article that arguably would be understood as referring to the plaintiff, but equally it is clear that much of the article concerns only the allegations and conduct of Councillor Searle. The particular passages in the article referring to a councillor taking personal matters outside the Council clearly refer, in my view, to Councillor Searle, not to the plaintiff, and a reasonable reader could not understand them otherwise. I do not consider that the article is capable of conveying the imputation pleaded and I would not allow the plea in par 45.1.
The defendant objected to par 45.2 on the same basis. On balance, however, I consider that it is capable of being conveyed by the words complained of. The first paragraph of the press release refers to the City having "again been cleared of allegations made by a disgruntled Councillor…". It goes on to say that the Council cannot be "continually caught up on the political agenda of individuals and that it should not be used to advance personal aspirations and political agenda" [emphasis added]. In my view, the references to individuals' political agendas and personal aspirations are arguably capable of being understood as references to the conduct not only of Councillor Searle, but also of the plaintiff, whom it is alleged readers would have been aware had made such allegations. It is arguably defamatory of the plaintiff and I would therefore allow the plea.
The imputation pleaded in par 45.3 was objected to by the defendants on the basis that it was embarrassing. I understood the objection, which was not elaborated in argument, to be that it is unclear what is meant by the imputation.
The use of the word "improper" in an imputation has been considered previously in this Court: Gascoine v McGinty (1995) 14 WAR 542; see also Morris v Newcastle Newspapers Pty Ltd [1985] 1 NSWLR 260. There it was held that as the word is capable of bearing different shades of meaning, and thereby capable of referring to different degrees of impropriety, it will be objectionable when used in an imputation unless the nature of the alleged impropriety is clear. In my view, in the current context, it is not clear. Accordingly, the imputation as formulated is embarrassing and I would not allow it.
The defendants' objection to par 45.4 was that it did not distil a defamatory meaning. For the reasons I have given earlier, I do not consider that it is defamatory of the plaintiff to say that money and resources were wasted on unfounded claims by the plaintiff. I would not allow the plea.
The defendants contended that par 45.5 pleaded a meaning that was not capable of being conveyed by the words complained of. I accept that objection. The plaintiff relied, in particular, on the statements in the article that the plaintiff's allegations were unfounded and that the plaintiff had involved the City in his own political agendas to advance his own personal aspirations. That, however, seems to me to be quite different to deceit or duplicity and I do not consider that a reasonable reader would understand it to impute deceit and duplicity. I would not allow the plea. In my view, it is also too vaguely expressed and for that reason is embarrassing.
The ninth publication relied upon by the plaintiff is pleaded in par 46, which is in the following terms:
"In or about July 2002 Croft and Griffiths wrote and published to at least 132 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.'"
The imputations contended for by the plaintiff are pleaded in par 47 as follows:
"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:
47.1a deceitful person given to making unfounded allegations against persons employed by the City of Gosnells;
47.2responsible for the City incurring expenses in money, time and resources to the value of $65,000 in producing the council report;
47.3responsible for needlessly depriving the City of Gosnells of $65,000, money which could well have been better spent elsewhere in the City; and
47.4deserving of punishment by being made to pay the $65,000 cost of the City's report."
The Council defendants objected to each of the imputations pleaded.
The objection to par 47.1 was that the alleged meaning was not capable of being conveyed by the words complained of and, in any event, was embarrassing. I accept that the meaning is not capable of arising. There is nothing in the words complained of which is capable, in my view, of conveying the imputation that the plaintiff was deceitful. A statement that a person has made "unfounded, unsubstantiated allegations" is not, in my view, without more, capable of imputing deceit.
The objection to par 47.2 was that it was not arguably defamatory of the plaintiff. I accept that submission. For the reasons I have given earlier, it is not, in my view, arguably defamatory to say that a person caused time, money and resources to be expended.
The defendants submitted that the imputation pleaded in par 47.3 did not arise from the words complained of and, further, that it did not distil a defamatory meaning. For the reasons I have given in relation to par 22.3, I would not allow par 47.3.
The same objections were made in relation to par 47.4. I accept the objection that the imputation is not arguably capable of being conveyed by the words complained of. I do not consider that a reasonable reader could understand the words to mean that the plaintiff was deserving of punishment. The imputation is also in my view too vague and is therefore is embarrassing.
The ninth publication complained of by the plaintiff concerned the Crown defendants. It is pleaded in pars 48 to 50 of the minute. After the hearing the plaintiff's solicitor gave written notice that the plaintiff intended to amend the proposed statement of claim to make a claim against the State of Western Australia rather than, as now, against the Minister for Local Government and Regional Development. The plaintiff would rely upon the acts of Cole, the seventeenth defendant, for whom it will be said the Minister, as representing the State of Western Australia, is vicariously liable. The plaintiff's solicitor also said that the plaintiff does not, by par 50, seek to advance a separate cause of action but relies upon the matters pleaded only on the question of damages.
It is not, in my view, appropriate to comment at this stage on the proposed plea. It is not entirely clear what is intended by the pleas against these parties and any problems with the plea can only properly be dealt with when it has been properly formulated and is moved. It is the case, however, as mentioned by counsel for these defendants, that the indorsement on the writ contains claims against Cole for publications on 14 March 2002 and 29 April 2002 and against the Minister - or, in due course, against the State - for a publication on 1 May 2002. The proposed statement of claim pleads a report prepared by Cole dated 29 April 2002, but does not refer to a date on which the report is alleged to have been published. It must therefore be taken that publication is alleged to have occurred on 29 April 2002. It is apparently that publication for which it is said the Minister is vicariously liable. The indorsement on the writ, however, contains a claim against the Minister only in respect of a publication on 1 May 2002. There is in the proposed statement of claim no plea of a publication on 1 May 2002.
I would refuse leave to amend the statement of claim in the form of the minute. If a claim is to be pursued against the Minister in his own right or against the State it will be necessary for the plaintiff properly to formulate the plea and to either make the pleading consistent with the indorsement on the writ or seek leave to amend the indorsement
I will, in any event, turn to the claim as set out in the proposed statement of claim. The words complained of are set out in par 48 of the minute as follows:
"By way of a report to the Minister for Local Government dated 29 April 2002 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 imputations alleged to arise from those words are pleaded in par 49 as follows:
"The said words are defamatory in their natural and ordinary meanings. By the said words Cole meant and was understood to mean that the plaintiff;
49.1was a mere troublemaker as evidenced by the fact that he was not at all interested in fully co‑operating with the Department of Local Government in having his concerns investigated;
49.2had not revealed details of his complaint to elected members of the City of Gosnells nor any of its staff, in particular members of the Executive Team and was thereby acting improperly in making the complaint to the Minister;
49.3that the plaintiff was a troublemaker in that he would have used a non‑assessment of his concerns as an opportunity to continually criticise and cause trouble for the local government and maintain their distress;
49.4had couched his concerns in such a way that that they were defamatory;
49.5was intent on defaming members of the City of Gosnells Executive Team;
49.6was a mere troublemaker as evidenced by the fact [sic] made complaints on matters in respect of which the City of Gosnells Response had no case to answer; and
49.7was by his actions worthy of written criticism and disparagement by way of sanction in Ministerial letters and press releases giving the Minister's decision."

The Minister and Mr Cole objected to each of the imputations. It was submitted by their counsel that the imputation in par 49.1 was not capable of being conveyed by the words complained of. It was argued that the references to the failure by the plaintiff to co‑operate with the enquiry was not capable of conveying an imputation that the plaintiff was simply a trouble‑maker. In my view, however, it is arguable and I would allow the plea.
The objection by these defendants to par 49.2 was again that it was not capable of being conveyed by the words complained of. Counsel argued that the failure of the plaintiff to reveal details of his complaints to the City of Gosnells or any of its staff could not be considered improper. Senior Counsel for the plaintiff argued that the imputation was capable of being conveyed, particularly in the light of the statements in the article that the plaintiff had both made a complaint to the Minister and had informed the press that he had called for an inquiry, but had not told the Council.
In my view, the imputation cannot be said to be unarguable and I would therefore allow it.
The imputation in par 49.3 was objected to on the ground that it was not capable of being conveyed by the words complained of. Counsel for the Crown defendants argued that the statement in the report that without a full assessment the matter would have been an issue that critics of local government would have raised whenever it suited them, was a general comment that was incapable of conveying the imputation. Senior Counsel for the plaintiff submitted that the insinuation was that the issue would be raised by the plaintiff whenever it suited him, giving rise to the imputation that he was a troublemaker.
Once again, in my view, it cannot be said that the imputation is unarguable and I would allow it.
Counsel for the defendants submitted that the imputation in par 49.4 was not defamatory of the plaintiff, was embarrassingly vague and, further, that it was not capable of being conveyed by the words complained of. I accept that the imputation is too vague. It is not clear what is meant by "concerns" and the imputation is ambiguous as to whether or not it means that the plaintiff knowingly couched the concerns in that way. I would not allow it in that form.
The objection to the imputation in par 49.5 was that it was not capable of being conveyed by the words complained of. I accept that submission. There is nothing in the words complained of capable of giving rise to the imputation. The statements that the Crown Solicitor's Office had advised that the allegations were probably defamatory and that the allegations had been re‑worked to remove the defamatory nature of the material are not capable, in my view, of arguably giving rise to an imputation that the plaintiff, who is not a lawyer, was intend on defaming the people referred to in the allegations. It is abundantly clear that defamatory statements may be made, and frequently are made, quite innocently without any intention on the part of the maker to defame anyone. I would not allow the plea.
The plea in par 49.6 was objected to on the ground that it was not defamatory of the plaintiff and that it was not capable of being conveyed by the words complained of. Counsel for the Crown defendants argued that the fact complaints had been found not to be substantiated was not capable of giving rise to the imputation that the complainant was a troublemaker. In my view, that is clearly right and I would not allow the plea.
The objection to par 49.7 was that it was so vague as to be embarrassing. It was submitted that there was no clear identification of the act or condition which the plaintiff alleges was attributed to him. I accept that submission. In my view, the plea is embarrassing and I would not allow it.
The defendants seek to strike out claims in respect of three further publications on which the plaintiff relies, on the basis that the causes of action are not contained in the indorsement on the writ, and on the further ground that in each case they are causes of action in slander which are not maintainable without proof of special damage and no special damage is pleaded.
The eleventh publication complained of by the defendants is pleaded in par 51 as follows:
"At the 25 March 2003 OCM at City of Gosnells Pisano stated the words:
'We have a situation where a former councillor had 25 concerns….this individual was looking for avenues to destroy the work done by this council. This individual has to be questioned: is he all right in the head or not? Everyone has been affected by this person. Is he right in the head or have I gone too far?'"
The twelfth publication is pleaded in par 55 as follows:
"At the 25 March 2003 OCM at the City of Gosnells Morris stated the words:
'We have no control over individuals who are out to destroy or be destructive of this city. People who go out of their way to unstable this Council.'"
The last publication, the thirteenth, is pleaded in par 59 of the statement of claim as follows:
"At the 25 March 2003 Ordinary Council Meeting at the City of Gosnells Croft stated the words:
'I have been attacked many times by this individual and so has my family. I'll take him on anytime. He's got a thin skin . He's alright when it comes to throwing mud at other people but he can't take it himself. My financial returns have been pulled so many times I don't know if they are still there. Nothing has been found wrong with them. There's something wrong with this individual damaging ratepayers, members of the community, council and other councillors. The writ was poorly drafted; it looks like it was done by a backyard lawyer. It was done at election time to influence the election. He has threatened individuals who have a different opinion to him. People are being harassed; they are frightened of being sued. He is associated with destructive people. Being challenged on a regular basis makes it hard to get elected. He's represented in the papers as an individual suing a large corporation. This individual has been pursuing people, making their lives hell you have to question the rationale behind that.'"
It is clear that the pleaded causes of action are not mentioned in the indorsement on the writ. Indeed, they could not have been. The writ was issued on 5 March 2003, before the date of each of the alleged publications.
Order 20 r 2(2) of the Rules of the Supreme Court provides that a statement of claim must not contain any allegation or claim in respect of a cause of action unless that cause of action is mentioned in the writ or arises from facts which are the same as, or include or form part of, facts giving rise to a cause of action so mentioned. The causes of action pleaded, in my view, plainly do not arise out of facts which are the same as facts giving rise to an existing cause of action mentioned in the writ. They are quite separate and distinct publications which depend upon their own facts and give rise to discrete alleged causes of action. The claims should therefore be struck out.
I should mention that I do not consider that it would be open to the plaintiff to amend the writ to include these claims as they post‑date the writ: Water Authority of Western Australia v AIL Holdings Pty Ltd (No 2) (1993) 10 WAR 233; Allison Pty Ltd (ACN 056 940 437) t/a Pilbara Marine Port Services v Lumley General Insurance Ltd [2004] WASC 98.
It is unnecessary to consider the further ground relied upon by the defendants, that the claims are not maintainable in the absence of a of special damage.
I would therefore set aside the judgment entered against the plaintiff on 15 December 2003 and would grant leave to the plaintiff to amend the statement of claim in terms of the minute of proposed substituted statement of claim, which is annexure FLA1 to the affidavit of Fiona Askew sworn 15 February 2004 and filed in this action, save as to pars 18.1, 18.3, 18.5, 22.2, 22.4, 22.7, 22.8, 29.3, 29.4, 29.6, 34.3, 38.1, 38A, 45.1, 45.3, 45.5, 47.1, 47.2, 47.4 and 48 to 62 of the minute.
I will hear the parties on the form of orders and on costs.