Bird v Network Ten (Perth) Pty Ltd
[2000] WASC 2
•20 JANUARY 2000
BIRD -v- NETWORK TEN (PERTH) PTY LTD [2000] WASC 2
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 2 | |
| Case No: | CIV:1651/1999 | 1 SEPTEMBER 1999 | |
| Coram: | OWEN J | 20/01/00 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application to strike out allowed in part | ||
| PDF Version |
| Parties: | IAN BIRD NETWORK TEN (PERTH) PTY LTD (ACN 009 108 614) |
Catchwords: | Practice and procedure Pleadings Application to strike out imputations and particulars of aggravated and exemplary damages Whether falsity could support claim for aggravated damages Whether plea of knowledge of falsity necessary Whether duty to check accuracy of material No duty to forewarn of impending publication |
Legislation: | Nil |
Case References: | Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Oracle International Pty Ltd v West Australian Newspapers Pty Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997 Metaxas v West Australian Newspapers Ltd, unreported Smith v Littlemore (1996) 15 WAR 289 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 Metaxas v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970411; 18 August 1997 Ronci v Nationwide News Pty Ltd, unreported;SCt of WA; Library No 970695; 21 June 1996 Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
NETWORK TEN (PERTH) PTY LTD (ACN 009 108 614)
Defendant
Catchwords:
Practice and procedure - Pleadings - Application to strike out imputations and particulars of aggravated and exemplary damages - Whether falsity could support claim for aggravated damages - Whether plea of knowledge of falsity necessary - Whether duty to check accuracy of material - No duty to forewarn of impending publication
Legislation:
Nil
Result:
Application to strike out allowed in part
(Page 2)
Representation:
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr W S Martin QC & Mr M H Ashby
Solicitors:
Plaintiff : Bennett & Co
Defendant : Clayton Utz
Case(s) referred to in judgment(s):
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Oracle International Pty Ltd v West Australian Newspapers Pty Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997
Metaxas v West Australian Newspapers Ltd, unreported
Smith v Littlemore (1996) 15 WAR 289
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58
Case(s) also cited:
Metaxas v West Australian Newspapers Ltd, unreported; SCt of WA; Library No 970411; 18 August 1997
Ronci v Nationwide News Pty Ltd, unreported;SCt of WA; Library No 970695; 21 June 1996
Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58
(Page 3)
1 OWEN J: This is an application by the defendant to strike out certain paragraphs of a statement of claim in a defamation action.
Background
2 In 1997 one Frater commenced proceedings in this Court claiming damages for defamation ("the first action"). The plaintiff and one Ward were the defendants in the first action. It was listed for trial commencing on 14 May 1999. Just before the trial was called on the parties reached a settlement. It is not clear from the statement of claim exactly what occurred in court that morning. It seems that counsel appeared before the trial Judge and either announced that a settlement had been reached or sought a judgment by consent.
3 The defendant is a commercial television operation. On its regular news bulletin on the evening of 14 May 1999 it carried a report which I will set out in the way it is reproduced in par 3 of the statement of claim:
"Newsreader Introduction by Ms Christina Morrisey [Accompanied by footage of the Newsreader, Ms Christina Morrisey and a background image of Mr Frater, a soccer ball and the word 'Payout'].
'An expensive lesson for two men today, forced to pay thousands of dollars in one of WA's biggest defamation settlements. The pair will pay Stephen Frater $90,000 as compensation for rumours which he claimed ruined his reputation.'
Ms Candice Sgroi, Reporter [Accompanied by footage of Mr Frater at what appeared to be his residence]
'Stephen Frater once lived and breathed soccer. He treated players for injuries, rose through club ranks, until a malicious rumour ruined it all.'
Mr Frater: [Accompanied by footage of Mr Frater being interviewed outside the Supreme Court of Western Australia]
'They have just spread throughout the whole of soccer. Everyone in soccer was aware of it. There was a fax sent to people in soccer, there was a nasty letter sent to clubs alleging horrible things.'
(Page 4)
- Reporter: [Accompanied by file footage of the Plaintiff, which was not identified as file vision. Also accompanied by footage of Mr Frater, his supporters and legal advisers at the Supreme Court of Western Australia]
'He sued. Just before the matter was to go to trial today a last minute settlement. The two men who spread the rumours, Ian Bird and Edgar John Ward ordered to apologise and pay him $90,000'
Mr Frater: [Accompanied by footage of Mr Frater being interviewed outside the Supreme Court of Western Australia]
'People think it's a lot of money but to me it was never a money factor. It was always, I wanted my apology. That was all I ever wanted.'
Reporter: [Accompanied by footage of written apologies provided by the Plaintiff and a Mr Ward, to Mr Frater]
'The men apologised for spreading lies that Mr Frater behaved with gross impropriety at a soccer camp five years ago. The rumour started at a social gathering and spread like wildfire.'
Mr Frater: [Accompanied by footage of Mr Frater being interviewed outside the Supreme Court of Western Australia]
'People were not sure that the allegations were true or not. So they basically decided to avoid me and refused to let me treat their children.'
Reporter:
'Mr Frater says he will never return to soccer. His lawyer says it's a warning to all.'
Mr Townsend (Mr Frater's solicitor): [Accompanied by various footage including that of Mr Townsend being interviewed outside the Supreme Court of Western Australia]
'I think its important that people have some respect for their fellow community members, that they choose their words carefully and that they don't go about repeating things without any foundation'.
(Page 5)
- Reporter:
'Candice Sgroi, Ten News'."
"4.1 the Plaintiff was truculent in refusing to apologise and pay money to Mr Frater prior to being ordered to do so by the Trial Judge, in that all that Mr Frater had sought in his civil action against the Plaintiff was an apology;
4.2 the Plaintiff was unreasonable in refusing to apologise and pay money to Mr Frater prior to being ordered to do so by the Trial Judge, in that all that Mr Frater had sought in his civil action against the Plaintiff was an apology;
4.3 the Plaintiff's truculent conduct had been deprecated by a Judge of the Supreme Court of Western Australia;
4.4 the Plaintiff's unreasonable conduct had been deprecated by a Judge of the Supreme Court of Western Australia;
4.5 the Plaintiff had sent facsimile transmissions to people involved in soccer in Western Australia which were grossly defamatory of Mr Frater and had sent letters to soccer clubs throughout Western Australia which were grossly defamatory of Mr Frater."
5 The balance of the statement of claim is devoted largely to circumstances which, the plaintiff contends will justify an award of aggravated and exemplary damages. In essence they make these allegations:
(a) the report was not a balanced and accurate report of court proceedings and was intended to be more favourable to Frater;
(b) the report contained factual inaccuracies and sensational statements;
(c) the falsity of the matters complained of could have and should have been ascertained by properly observing the
(Page 6)
- proceedings and contacting the plaintiff (which the defendant did not do);
- (d) the vision used file footage of the plaintiff without nominating that it was of that character; and
(e) the defendant had failed to apologise despite the plaintiff's demands for an apology.
6 It is pleaded, in par 9 and par 10, that these matters render the broadcast unjustifiable, lacking in bona fides, made with the prospect that the material advantage to the defendant would outweigh the disadvantage to the plaintiff and dome with reckless indifference to the truth of the matters contained in the report.
7 The defendant has not yet filed a defence. The nature of the defendant's contentions in answer to the plaintiff's claim is therefore unknown. At this stage I am concerned only with the viability of the statement of claim. I must proceed on the assumption that there is a factual base for the contentions made in the pleading.
8 The plaintiff seeks to strike out par 4 of the statement of claim on the basis that report cannot bear any of the imputations contained in the numbered subparagraphs. The plaintiff also says that par 7, par 9 and par 10 should be struck out as they provide no arguable basis for an award of aggravated or exemplary damages.
9 With a couple of exceptions (which I will mention in due course) there was no dispute as to the legal principles on which strike out applications proceed. There is, therefore, no need for me to say much other than to refer to the description of those principles in Smith v Littlemore (1996) 15 WAR 289 at 294 - 95 (as to striking out imputations) and Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 at 149 - 54 and Oracle International Pty Ltd v West Australian Newspapers Pty Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997 at 15 - 19 (as to aggravated and exemplary damages).
The Imputations of Truculence, Unreasonableness and Deprecation
10 Counsel for the defendant submitted that the imputation contended for in par 4.1 and par 4.2 depended on a two-stage reasoning process. First, that the trial Judge had "ordered" the plaintiff to apologise and, secondly, that because Frater's dominant purpose had been to extract an apology, the innuendo of "truculence" or "unreasonableness" follows.
(Page 7)
11 The first question is whether the report could bear the meaning that there had been a curial determination of anything. There is only one reference to the plaintiff being "ordered" to pay and apologise. It is contained in words spoken by the reporter in the fourth italicised paragraph of the report. In addition, there is a reference in words spoken by the newsreader in the first italicised paragraph to the plaintiff and Ward being "forced to pay thousands of dollars". But in the same sentence there is a reference to a "defamation settlement". Just before the reference to an "order" in the fourth italicised paragraph there is the sentence: "Just before the matter was to go to trial today a last minute settlement". In other words, each reference to a curial disposition (assuming the term "forced" is to the same effect as "ordered" in this context) comes in immediate proximity to a reference to a settlement.
12 The approach of the plaintiff is to say that the actual words spoken cannot be divorced from their context, and that requires attention to be paid particularly to the images of the Supreme Court Building and lawyers. In addition, the words "an expensive lesson" and "it's a warning to all" are relevant.
13 I accept that it is important to view the critical words in the context of the report as a whole. I accept also that, this being a television broadcast, the viewer might not furnish to it the same degree of concentration as he or she would to a written document: Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 at 411.
14 In my opinion the imputation, in so far as it relies on a curial determination, is not so obviously untenable or manifestly groundless that it could not, on any view, be sustained. I think the images are particularly important in this regard. The very images of the court building and of Frater and his entourage being interviewed at the building might have a peculiar tendency to influence the way in which the viewer would understand the overall report. It would be within common experience that disputes of this nature can be settled at any stage, even before litigation has been commenced and do not necessarily involve the intervention of a judicial officer. But there is a reference to a trial (admittedly in the context of "just before …") and to the presence of lawyers at the court building. Had, for example, the images been of a soccer ground or some other place or happening associated with the sport, the position might be different. I think the ordinary reasonable viewer, even taking into account the references to settlement, could form the impression that there had been a curial determination. No doubt the presence of the references to settlement and their proximity to the phrases "forced to pay" and "ordered
(Page 8)
- to apologise" may raise a very real issue with which the trier of fact will have to grapple. However, I think it is a matter for the trier of fact. I do not think I would be justified, as a matter of law, in reaching a conclusion adverse to the plaintiff on that point.
15 However, that is not an end to the matter. Does it follow from the fact that a person has been ordered or forced to pay money and apologise that he or she is truculent or unreasonable because the opponent's dominant purpose had been to extract an apology? I realise that the task at this stage is to decide whether the imputation could arise, not whether it does arise. Accordingly, the formulation of the question in that way may not be entirely apposite but it is nonetheless convenient.
16 The Concise Oxford Dictionary defines "truculent" as: "fierce, cruel aggressive, savage, pugnacious". The Macquarie Dictionary adds, to that list, the words "brutal", "scathing", "harsh", "vitriolic" and "belligerent".
17 Counsel for the defendant submitted that it did not follow that a person was truculent simply because he or she had not settled litigation until "the last minute". Any person had a right to resist a legal claim. It simply did not follow that because a person exercised that right up to the last minute, or even to the stage where he or she was unsuccessful at trial, truculence was involved. There might be cases in which the failure to settle was accompanied by other circumstances of an aggravating kind. However, in this case there is nothing more in the words complained of in the report to sustain the proposition than the mere fact of resistance to a legal claim up to the point of trial, at which point the action was settled. It would have to follow, counsel submitted, that all words in which it was said there was a settlement on the eve of a trial would necessarily connote that one or other of the parties had been truculent.
18 Counsel for the plaintiff contended that, in terms of the definition, truculence was to be understood in the sense of belligerence, that is, a refusal to admit wrongdoing until ordered to apologise. Counsel submitted that the innuendo, which emerged plainly from the report was that "[the plaintiff] didn't genuinely apologise, he was truculent in refusing to apologise until being ordered to do so". I think that is an important submission because it encapsulates the sting that the plaintiff says arises from the report.
19 In my opinion the sting, as so identified, does not arise clearly from the imputation as it is pleaded in par 4.1 and par 4.2. Such an imputation might be defamatory. But it seems to me that the mere fact that the
(Page 9)
- plaintiff apologised and paid money in accordance with an "order", even when the dominant purpose of Frater was to receive an apology, could not, itself amount to truculence. In the way that it is pleaded, I think it is difficult to find the additional element (or aggravating factors as I earlier called them) that would make the publication defamatory by reason of there having been, until the last minute, a resistance to a legal claim. I say this giving full effect to a consideration of the report as a whole. This would take into account factors (assuming for the purposes of argument that they are eventually established) such as the gross nature of the defamation, the widespread incidence of the publication and the substantial amount of the payment.
20 I accept the general thrust of the submissions made by counsel for the plaintiff that, if the plaintiff's claims are good and in the way it is pleaded, almost any report of a last minute settlement would be defamatory. However, if the plaintiff is saying that the real sting of the report is that the plaintiff proffered an apology that was not genuine, then he should say so. In that case I think the refusal to apologise until being ordered to do so, and then tendering a false expression of regret and vindication could well be defamatory. If "truculence" is to be understood as "belligerence" I am not at all sure whether it is the appropriate word to use. If that is the sting, it may speak more as disreputable conduct rather than as conduct that is aggressive, which is the relevant meaning that I would ascribe to the term "belligerent". If "belligerent" is given another meaning ascribed to it by the Macquarie Dictionary, namely "argumentative", I am not sure it could be described as defamatory. The conduct might, however, be regarded as unreasonable.
21 Counsel for the plaintiff conceded that the concept of "truculence" was more serious than that of "unreasonableness" in the context in which this action arises. Accordingly, it must follow that if the pleaded imputation does not arise in relation to truculence, it is unlikely to arise when couched in terms of a lack of reasonableness.
22 In my view par 4.1 and par 4.2 cannot stand as the imputations arising from them cannot, as a matter of law, arise. However, the plaintiff may be able to formulate a plea that relies on the lack of genuineness in the apology that he was "forced" or "ordered" to make. Whether the innuendo is of "truculence" or "unreasonableness" or some other phrase will depend on the formulation. It will be apparent that I am without enthusiasm for the term "truculent" but I cannot give a definitive ruling without seeing the reformulated plea.
(Page 10)
23 Paragraph 4.3 and par 4.4 must, of course, fall with the other two as they depend on what has gone before. I wish to make an additional comment. The mere fact that there has been a curial determination has been made does not mean that the judicial officer has "deprecated" the conduct of the unsuccessful party. I have already said that, despite the existence of the two references to "settlement" the reasonable viewer could form the impression that there had been a curial determination. But it cannot be said that the reasonable viewer, even one prone to a little loose thinking, would entirely overlook or ignore the references to a settlement. That must colour the understanding to be drawn as to the extent to which the trial Judge was involved. I do not think par 4.3 and par 4.4 could stand in any event.
Whether the Plaintiff Initiated the Rumours
24 The defendant's contentions in relation to par 4.5 are relatively simple. First, it is simply not open to derive from the words complained of that it was the plaintiff who sent facsimile transmissions to people involved in soccer and to soccer clubs in this State. Secondly, it is not open to derive from the words complained of that the facsimile transmissions were grossly defamatory.
25 The defendant says that the inference to be derived from the words is that the plaintiff repeated something - not that he had initiated the rumours. I can see that argument. This is especially so in view of the comments attributed to Frater's lawyer which were to the effect that people should be careful not to "go about repeating things without any foundation". However, all of the following comments, and their juxtaposition, have to be taken into account:
" … The [plaintiff and Ward] will pay Stephen Frater $90,000 as compensation for rumours …"
" … until a malicious rumour ruined it all."
"They have spread throughout the whole of soccer. Everyone in soccer was aware of it. There was a fax sent to people in soccer, there was a nasty letter sent to clubs alleging horrible things."
" … The two men who spread the rumours, [the plaintiff and Ward] ordered to apologise and pay him $90,000."
(Page 11)
- "The men apologised for spreading lies … The rumour started at a social gathering and spread like wildfire."
26 In my view, there is sufficient in all of that to say that the trier of fact could connect the plaintiff with the spreading of the rumour and to connect the sending of the faxes with the rumour and therefore with the plaintiff. I am not saying that the trier of fact would be bound to do so, but I do not think it is an untenable proposition.
27 The second complaint relates to the assertion that the faxes contained a "gross defamation". There is reference to a "nasty letter … alleging horrible things". There is a statement that gross impropriety happened at a soccer camp. Finally, there is the assertion after the rumours had gained currency people had avoided Frater and refused to let him treat their children. Then there is the statement that the amount of $90,000 was "one of WA's biggest defamation settlements". I will have more to say about the issue of the amount of the payment a little later. Taking it at face value for the moment, I think a reasonable viewer not avid for scandal could understand the report to be saying that the rumours in the facsimile transmissions were grossly defamatory.
28 In my view the challenge to par 4.5 must fail.
Exemplary and Aggravated Damages
29 Generally speaking, damages are compensatory in nature. They are awarded to vindicate a plaintiff's reputation. The harm to the plaintiff might have been exacerbated by the manner in which the defamatory matter was published or by conduct of the defendant, both before and after the publication. In certain circumstances an increase in the harm suffered by the plaintiff as a result of that conduct will be recognised by the inclusion in the compensatory damages of a component of aggravated damages. If the conduct is particularly reprehensible an extra sum may be added to punish the defendant. This is commonly referred to as punitive or exemplary damages. Here, the plaintiff has claimed both. The defendant says the pleading does not identify facts that would justify additional damages under either head.
30 To qualify for an award of aggravated damages the conduct complained of must be lacking in bona fides, improper or unjustifiable: Triggell v Pheeney (1951) 82 CLR 497 at 514. Put in a slightly different way, it must amount to misconduct: Triggell at 514.
(Page 12)
31 The preamble to par 7 of the statement of claim is unobjectionable, setting up, as it does, the claim that the defendant acted with a reckless disregard for the truth of the material and published it in contumelious disregard of the plaintiff's rights and in the prospect that the advantage to the defendant would outweigh the disadvantage to the plaintiff. That is all relatively standard fare. However, the defendant contends that none of the facts or circumstances set out in par 7.1 to par 7.7 could give rise to a finding to that effect. Counsel for the plaintiff submitted that the defendant's approach in this respect was misconceived because it failed to look at the cumulative effect of the individual items which, when taken together, established an arguable case for additional damages. I accept that it is important to view the allegations as a whole. However, I think the thrust of the defendant's argument was that each of the individual allegations was irrelevant and, accordingly, whether viewed in isolation or in combination did not raise a triable issue.
32 Paragraph 7.1 and par 7.2 can be taken together. The plaintiff says that the report was not and did not purport to be balanced and was intended by the defendant to favour Frater and to be unfavourable to the plaintiff. Counsel for the defendant argued that these pleas were irrelevant because they could not possibly support an allegation of conduct that was unjustifiable, improper and lacking in bona fides. I do not accept this submission. This was a report of the conclusion to court proceedings. There are, of course, problems wherever the question of subjective intention is raised in a context such as this. Nonetheless, I have to assess the matter on the basis of relevance assuming that the factual material can be made out. Media outlets are quick to point out that they report court proceedings in the public interest and they have a right to reasonable access to information to enable them to do so. But with every right comes a corresponding duty and in this respect the duties are well known. I think it is at least arguable that a deliberate decision to report the result of court of proceedings in a way that was designed to favour one party at the expense of another party could breach those duties and thus be improper. I hasten to add that I am not here making any comment on whether the report was so designed or intended or that, as a matter of fact or inference, that result would follow. All I am saying is that the contention is arguable. Paragraph 7.1 and par 7.2 should be allowed to stand.
33 In par 7.3 the plaintiff complains about factual inaccuracies in the report. The first is that the plaintiff had been ordered to apologise. The second is a failure to mention that the sum of $90,000 was inclusive of costs and that the plaintiff had only made a small contribution to it,
(Page 13)
- namely $25,000. The third is that the statement that the $90,000 sum was "one of Western Australia's biggest defamation settlements" was inaccurate and sensational.
34 Counsel for the defendant argued that, as a matter of principle, mere falsity cannot be a particular in support of a claim for aggravated damages. Dicta to the contrary is to be found in some New South Wales authorities but, as counsel pointed out, these were decided under the Defamation Act 1974 (NSW). That is a different context where a true statement can found an action. But in the common law jurisdictions truth is an absolute defence. It follows that mere falsity alone cannot add anything to compensatory damages because by definition the court must have found the material to be false. I am not sure that this submission is correct. The judgment of Windeyer J in Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 at 205 seems to suggest that the position in Western Australia (at least in this respect and notwithstanding the statutory context) is identical to that in New South Wales.
35 In any event, in Metaxas v West Australian Newspapers Ltd, unreported; SCt of WA (Steytler J); 18 August 1997; 970411 Steytler J held, at 40, that evidence of the falsity of imputations is admissible on the issue of aggravated damages. This is a decision on an issue of principle made by another Judge in the Defamation List. One of the advantages of a list such as the Defamation List is that it aids in achieving consistency within the jurisdiction. There are, therefore, special reasons, in addition to those that attach persuasive force to the judgments of single Judges, for following such decisions. I would be reluctant not to follow Metaxas unless I were convinced that it was clearly wrong. I am not so convinced.
36 There is another point. Counsel for the defendant conceded that falsity might, in conjunction with some other circumstances, support a claim for aggravated damages. An example given was knowledge of the falsity. Because the focus of attention of aggravated damages is on the degree of hurt or harm suffered by the plaintiff, he or she must know of the circumstances about which complaint is made and there must be a plea to that effect. I am not sure that this is correct. Certainly, the object of aggravated damages is to compensate the plaintiff for hurt suffered over and above that which flows naturally from the impugned statements. But it is the conduct of the defendant, both before and after the publication, that is relevant. I am not sure, therefore, whether it is necessary to plead not only that the material was false but that the plaintiff knew that the defendant appreciated its falsity.
(Page 14)
37 It is always, I think, going to be a question of degree. To adopt the phrase used by Windeyer J in Australian Consolidated Press v Uren, at 205, the question is: would a jury be likely to think that heavier damages should be given for the gratuitous publication of statements that are false than would be appropriate if the same statements were true?
38 Paragraph 7.3.1 relates to whether the plaintiff had been "ordered" to apologise and pay a sum of $90,000. I have already canvassed this issue. If, as I have decided, the imputation that the plaintiff was on the receiving end of a curial determination is arguable, I think its falsity (if that be the case) could also sound in aggravated damages. Similarly, if the fact is that the settlement involved the plaintiff contributing only $25,000 to the overall payment of $90,000 (inclusive of costs), as is alleged in par 7.3.2, it could likewise sound in additional compensation. However, I do not think that par 7.3.3 can stand. To the extent that it pleads a "sensational" publication, it repeats what is said in par 7.7. To the extent that it relies on factual inaccuracy, it is conditioned by the words "one of" and is otherwise not the sort of thing that would qualify as a relevant assertion of fact.
39 Paragraph 7.4 and par 7.5 can be taken together. They rest on the allegations of factual inaccuracies referred to in par 7.3. Paragraph 7.4 complains that the falsities should have been appreciated by the defendant if its employee had properly observed the proceedings in the courtroom when the settlement was announced, had properly observed the terms of the written apologies (copies of which were given to the defendant prior to the broadcast) and if it had contacted the plaintiff or his solicitor prior to the broadcast. Paragraph 7.5 is a general allegation of a failure to contact the plaintiff prior to publication.
40 In my view, the particulars are deficient. In Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58 at 76-77 Hunt J said:
"… a failure to make inquiries of the plaintiff prior to the publication will be relevant to the issue of aggravated compensatory damages if that failure was unjustifiable, improper or lacking in bona fides. It could be so only if some obligation arose for the defendant to make that inquiry …
It may be that such an obligation could arise in some circumstances in a case where the defendant was publishing a report of court proceedings. Certainly it would not arise if the defendant (or its relevant servant or agent) had been present in
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- court during the proceedings themselves, or where he had access to a complete transcript of those proceedings. But where no such unimpeachable source has been consulted, so that the report is based upon a source that could well be mistaken, and where the nature of the material in the defendant's possession is such that its accuracy should be checked, an obligation may arise to check that accuracy."
41 I accept the submission of counsel for the defendant that in the ordinary case there is no duty to check but in a case where the veracity of the material is dubious an obligation may arise. I think it is incumbent on a person seeking to establish that the case is outside the ordinary category to plead the facts on which the obligation is said to arise. The plaintiff's case rests on the proposition that there was no curial determination, although the impugned report gives the contrary impression. Counsel for the plaintiff submitted that the principle enunciated in Waterhouse is not applicable because this was not a report of court proceedings. In my view that is taking the dicta too literally. Clearly, there was an appearance in court by counsel representing Frater, Ward and the plaintiff that day. It is implicit in par 7.4.1 that the plaintiff's case proceeds on the basis that the journalist was in court. It is clear from par 7.4.2 that the journalist was in possession of a copy of the written apologies provided by Ward and the plaintiff. Just why the material would be regarded as other than from an "unimpeachable source" so as to demand a check as to its veracity is not readily apparent. Accordingly, the plea is deficient in that it fails to specify the basis on which it is said that an obligation to inquire arose. Paragraph 7.4 cannot stand in its present form. However, if it is more than that the journalist simply "got it wrong" and there is a basis from which an obligation to inquire arises, then the allegation might be made good. Accordingly, I will give the plaintiff leave to re-plead if he so wishes.
42 If par 7.5 rests on a general proposition that there is a duty to forewarn a person of the impending publication it simply cannot stand. That there is no such duty is clear from Waterhouse at 77.
43 Paragraph 7.6 complains that the defendant used file footage of the plaintiff without indicating to the viewers that this was its source. With respect to the author of the pleading I can see no possible basis on which such a fact could support a claim for aggravated compensatory damages. That plea must be struck out.
(Page 16)
44 In par 7.7 the plaintiff complains that the report was published in a "sensational manner". He cites the references to being "forced" to pay "one of WA's biggest damages settlements". He also repeats par 7.3, par 7.4 and par 7.6. The Macquarie Australian Dictionary describes "sensational" as being "such as to produce a startling impression, [especially] of an erotic, sadistic or horrific kind". In my view none of the circumstances which have survived the attack of par 7 could be described as "startling". The allegation that the report is sensational in a way that makes it unjustifiable, improper or lacking in bona fides is not tenable. Paragraph 7.7 must be struck out.
45 No attack is made on par 8 of the statement of claim, which makes further allegations in support of the claim for aggravated damages except that the defendant points out that the conduct complained of is post-publication. That, it seems to me, is a matter to be worked out at trial. In par 9 the plaintiff says that the circumstances in par 7 and par 8.1 entitle him to aggravated damages.
46 In par 10 the plaintiff alleges that the matters pleaded in par 7 and par 8 were in contumelious disregard of the plaintiff's rights, were such as to effect an advantage to the defendant which was outweighed by the disadvantage to the plaintiff and was done with a reckless indifference to the truth. All, of this, the plaintiff says, amounts to positive misconduct by the defendant entitling the plaintiff to exemplary damages.
47 I have very grave doubts as to whether the complaints, resting as they do (at least in part) in par 7, could be such as to raise a tenable case of conscious wrongdoing such that the damages award should include an element of punishment. However, I should reserve a final conclusion on that issue until the revised statement of claim has been prepared.
Conclusion
48 Paragraph 4.1, par 4.2, par 4.3 and par 4.4 should be struck out. There will be leave to re-plead par 4.1 and par 4.2. Paragraph 4.5 can stand.
49 Paragraph 7.1 and par 7.2 can stand. Paragraph 7.3.1 and par 7.3.2 can stand but par 7.3.3 must be struck out. Paragraph 7.4 and par 7.5 should be struck out with leave to re-plead but, in relation to par 7.5, the revision must not allege a general duty to forewarn. Paragraph 7.6 and par 7.7 must be struck out.
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50 Whether or not par 10 can stand will be stood over for further consideration.
51 If the plaintiff wishes to avail himself of the opportunity to re-plead in accordance with these reasons he should deliver to my Associate a minute of proposed re-amended statement of claim. I will then give directions as to how the matter should proceed. I will hear the parties concerning costs.
0
5
1