Brown v Marron
[2001] WASC 100
•20 APRIL 2001
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BROWN -v- MARRON & ANOR [2001] WASC 100
CORAM: OWEN J
HEARD: 20-24, 27 & 28 MARCH 2000
DELIVERED : 20 APRIL 2001
FILE NO/S: CIV 2038 of 1997
BETWEEN: MICHAEL BROWN
Plaintiff
AND
ERROL FRANCIS MARRON
First DefendantMARRON PROPERTY GROUP PTY LTD (ACN 009 398 583)
Second Defendant
Catchwords:
Defamation - Actions for defamation - Letter opposing plaintiff's application for membership of golf club - Where contents of letter defamatory - Defence of justification - Qualified privilege - Club rules requiring new membership applications to be posted on noticeboard - Members permitted to object - Whether letter of objection a privileged occasion - Whether requisite reciprocity of duty and interest - Irrelevant and exaggerated material in letter - Whether an excess of privilege - Presence of malice - Otherwise turns on own facts
Legislation:
Nil
Result:
Damages awarded
Representation:
Counsel:
Plaintiff: Mr R W Richardson
First Defendant : Mr M H Zilko
Second Defendant : Mr M H Zilko
Solicitors:
Plaintiff: Williams & Hughes
First Defendant : Simon Watson
Second Defendant : Simon Watson
Case(s) referred to in judgment(s):
Adam v Ward [1917] AC 309
Aqua Vital Australia Ltd v Swan Television and Radio Broadcasters Pty Ltd, unreported; SCt of WA (Steytler J); Library No 950545; 11 October 1995
Austin v Mirror Newspapers Ltd (1986) 60 ALJR 3
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Barbero v Amalgamated Television Services Pty Ltd (1985) 1 NSWLR 30
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Belt v Lawes (1882) 51 LJQB 359
Broome v Cassell [1972] AC 1027
Brown v Marron, unreported, SCt of WA (Steytler J); Library No 980686; 1 December 1998
Calwell v Ipec Australia Ltd (1975) 135 CLR 321
Capital and Counties Bank Ltd v Henry (1882) 7 App Cas 741
Carson v John Fairfax & Sons Pty Ltd (1993) 178 CLR 44
Cash v Morris (1993) 10 WAR 518
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623
Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 23 October 1997
Coyne v Citizen Finance Ltd (1991) 172 CLR 211
Dunford v News Media Ownership Ltd [1971] NZLR 961
Gobbart v West Australian Newspapers Ltd [1968] WAR 113
Gorton v The Australian Broadcasting Commission (1973) 22 FLR 181
Grapelli v Derek Block Holdings [1981] 1 WLR 823
Guise v Kouvelis (1947) 74 CLR 102
Gumina v Williams (No 2) (1990) 3 WAR 351
Hanrahan v Ainsworth (1990) 22 NSWLR 73
Hebditch v MacIlwaine [1894] 2 QB 54
Henry v TVW Enterprises Ltd (1990) 3 WAR 474
Henwood v Harrison (1872) LR 7 CP 606
Hoad v Nationwide News Pty Ltd, unreported, SCt of WA; Library No 960617; 24 October 1996
Horrocks v Lowe [1975] AC 135
Howe and McColough v Lees (1910) 11 CLR 361
Jones v Skelton [1963] 1 WLR 1362
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Lewis v Daily Telegraph Ltd [1964] AC 234
Loveday v Sun Newspapers Ltd (1938) 59 CLR 503
Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360
McInnes v Onslow-Fane [1978] 1 WLR 1520
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Morgan v Mallard (1997) 68 SASR 184
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Polly Peck (Holdings) Ltd v Trelford [1986] 1 QB 1000
Sim v Stretch (1936) 52 TLR 669
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Stephens v West Australian Newspapers Ltd (1993-94) 182 CLR 211
Stuart v Bell (1891) 2 QB 341
Theophanous v Herald and Weekly Times Ltd (1994) 182 CLR 104
Toogood v Spyring [1834] 1 CM & R 181
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Watt v Longsdon [1930] 1 KB 130
West Australian Newspapers Ltd v Bridge (1978-79) 141 CLR 535
Whitely v Adams (1863) CB (NS) 391
Yousoupoff v MGM Pictures (1934) 50 TLR 581
Case(s) also cited:
Beach v Freeson [1972] 1 QB 14
Caulfield v Whitworth (1868) 18 LT (NS) 527
Cotogno v Lamb (No 3) (1986) 5 NSWLR 559
Edmondson v Birch & Co [1907] 1 KB 371
Exel Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (1985) 155 CLR 448
Farquhar v Bottom [1982] NSWLR 380
Hoare v Jessop [1965] EA 218
John v MGN Ltd [1997] QB 586
Lemaire v Smith's Newspapers Ltd (1927) 28 SR (NSW) 161
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Pamplin v Express Newspapers [1988] 1 WLR 116
Prager v Times Newspapers Ltd [1988] 1 WLR 77
Roff v British and French Chemical Manufacturing Company [1918] 2 KB 677
Smyth v Mackinnon (1897) 34 SLR 762
Stern v Piper [1997] QB 123
Sutherland v Stopes [1925] AC 47
Watts v Times Newspapers Ltd (1996) 2 WLR 427
Webb v Bloch (1928) 41 CLR 331
Webbie v Nationwide News Pty Ltd (1968) 12 FLR 271
OWEN J: In this action the plaintiff seeks damages from the defendants for defamation arising from a letter that the first defendant sent to the Cottesloe Golf Club (Inc) ("the Club") concerning an application that the plaintiff had made for membership of the Club.
The first defendant is the managing director of the second defendant, which is a private company operated for the benefit of the first defendant's family. The plaintiff's complaint in these proceedings lies primarily in the conduct of the first defendant. The second defendant is said to be involved because of the capacity in which the first defendant acted when engaged in that conduct. I will refer to the first defendant as "the defendant" and to the second defendant as "the Company". Where necessary, I will refer to the first and second defendants together as "the defendants".
Background
The plaintiff and the defendant became acquainted in the early 1970's through their involvement in the real estate industry. In the mid‑1970's the plaintiff operated a business from an office building which was partly owned by the defendant and in which the defendant also had an office. At that time the relationship between the two of them was described as that of "friendly acquaintances".
In July 1975 Richard Adams, an estate agent, had for sale a small block of flats in South Perth. The plaintiff and the defendant were each (independently) interested in acquiring the flats and made inquiries of Adams in that regard. The defendant made an offer to purchase the flats. The offer was accepted and settlement was effected. The plaintiff apparently took the view that there was something untoward in the way that the defendant acquired the property. This transaction seems to have been the genesis of the problems that have existed between the plaintiff and the defendant since then. Since 1976 they have had minimal contact. In due course I will describe some of the incidents that have occurred when they have seen one another. It is sufficient to say that what contact they have had has not been particularly friendly.
In 1989 the defendant joined the Club and now enjoys unrestricted membership. He plays golf at the Club on a regular basis. In November 1994 the plaintiff applied for membership of the Club and the application was placed on the waiting list. In mid‑1997 the application came up for active consideration and, in accordance with the rules or practices of the Club, it was advertised on a noticeboard in the Club premises. On 1 July 1997 the defendant wrote a letter on the letterhead of the Company. It was addressed to David Baumgartel, the Manager of the Club, and it was signed by the defendant over the description "Managing Director". The letter is in these terms:
"In connection with an application form that is currently on display for Michael Francis Brown for membership of the Cottesloe Golf Club.
This is the first time that I have written a letter of dissent against any new application, I do so reluctantly and only after careful consideration. I believe that this applicant is not a fit and proper person to be a member of the Club and provide the following information to assist the committee in arriving at the same conclusion.
The intention of this information is to explain his character, the type of person he associates with and may introduce to the club, and his manner which is extremely rude and arrogant. I am not aware of all his activities only what is published.
During the seventies he had a real estate business trading as Brown & Brajkovich, most in the industry were cautious about dealing with him because of the unethical manner in which he operated. I read in the press that Mr Brajkovich was warned off all race tracks in the State.
He later formed a partnership with Mr Robert Martin who was one of the four big defaulting borrowers from the Teachers Credit Society ($28m). Mr Martin was also charged with bribing Mr Len Brush and I believed was jailed for some time.
Around 1983/4 Mr Brown was placed into Bankruptcy. I understand that at this time he was brutal to his creditors and his former partners.
He then got involved in the night club business and had a number of complaints against him, including sexual discrimination, that resulted in convictions against him. One was for refusing entry to a girl because she was ugly. I am sure that the associate members of the club would find this quite insulting.
Paper cuttings relating to two of these incidents are enclosed and it is interesting to note that the judge, in his summary, stated that Mr Brown was not a credible witness.
More recently I understand that he was one of the "Mr Bigs" of the Concorde Airline Club which is a pyramid selling organisation. This involved people investing money at a steward level and upon introducing other investors and more money, promotions were given to pilot, captain etc. Thousands lost money, the Ministry of Fair Trading made public statements about the legality of the scheme and are still looking to lay charges against the organisers.
I believe a Mr Nichevich, (unsure of correct spelling) recently had his application for membership at Cottesloe Golf Club declined. Mr Brown has a close friend fitting this name description.
I am sure that there are other matters relating to his indiscretions that have been brought to the attention of the authorities over the years, ie Land Agents Supervisory Committee, Reiwa, Liquor & Gaming etc but because of the confidentially restrictions placed on the various departments, they will not disclose any information about individuals whatsoever.
Over the past few years I know of three members of our club that have been charged with various types of criminal offences, two have been jailed. This reflects badly upon all members, most who have professional backgrounds and or high standing in the community.
We have a long waiting list of people wanting to join the club, therefore for the betterment of all members please reject this application and choose any other on your list."
The letter had attached to it photocopies of parts of pages from newspapers in which reference is made to cases before the Equal Opportunities Commission or Tribunal concerning the activities of a nightclub in which the plaintiff had an interest. I will call the letter and the accompanying photocopies "the Objection Letter". On 3 July 1997 the defendant handed the letter to Colin Howard who passed it on to Baumgartel. Howard and Baumgartel then invited the defendant into the office and discussed the Objection Letter with him. On 5 July 1997 a further meeting was convened. Kevin Johnson, the Club President, was in attendance along with Howard, Baumgartel and the defendant. The letter was discussed.
Two other letters were received by the Club opposing the plaintiff's application. Neither of the other letters went into any detail. On 15 July 1997 there was a meeting of the General Committee of the Club at which the application of the plaintiff (among others) for membership was considered. Under the rules of the Club if there are two adverse votes the application is declined. A secret ballot was held and the committee rejected the plaintiff's application. On 16 July 1997 Baumgartel wrote to the plaintiff advising him of the rejection. The plaintiff contacted Howard seeking a meeting to discuss the issue. Howard declined to meet him. The plaintiff then wrote to each committee member seeking "advice as to the precise reasons the Committee rejected [his] application for membership". One committee member telephoned the plaintiff and told him that the problem was a written objection from the defendant. This was the first indication the plaintiff had of the existence of the Objection Letter.
As a result of this information the plaintiff took legal advice. His solicitors obtained a copy of the Objection Letter from the Club and showed it to the plaintiff. These proceedings were commenced a short time later.
The Pleadings
The plaintiff's cause of action arises from the Objection Letter. Paragraph 3 of the statement of claim sets out the text of the Objection Letter (without referring to the newspaper articles) and says, in effect, that it was published to Baumgartel. It is also pleaded that the letter was signed by the defendant in his capacity as managing director of the Company or alternatively in his own capacity. In par 4 reference is made to the natural and ordinary meaning of the words and there is then set out 15 separate imputations. There is no point at this stage in setting out the individual imputations. I will have to deal with them one by one in the course of these reasons. The conventional plea to support a defamatory meaning is contained in par 5. A republication by Baumgartel to the members of the committee is pleaded in par 6, although the republication is said to go only to the question of damages and not to constitute a separate cause of action. There is an alternative plea of publication, said to be constituted by the delivery of the letter to Howard in the knowledge that it would be given to Baumgartel.
Paragraph 10 of the statement of claim refers to the meeting held between Howard, Baumgartel and the defendant on 3 July 1997 and pleads that the defendant said certain words which are described as "the first qualification". In the time honoured fashion of defamation litigation these pleadings have gone through amendment after amendment after amendment. In fact, they were still being amended during closing addresses. There is no other reference to qualifications later in the pleading so the use of the word "first" in conjunction with the word "qualification" is probably an historical accident. It will be convenient for me to refer in these reasons to what was said by the defendant at the meetings of 3 July 1997 and 5 July 1997 simply as "the qualifications".
In par 11 the plaintiff repeats the imputations pleaded in par 5 as arising from the natural and ordinary meaning of the Objection Letter "when published in the context pleaded at par 10". In par 16 these pleas are effectively repeated in relation to the meeting held on 5 July 1997. The plaintiff also claims aggravated and exemplary damages.
In the defence the defendants admit that the defendant wrote and signed the Objection Letter but denies that it was in his capacity as managing director of the Company. They then plead the content of the newspaper articles that were attached as part of the Objection Letter. The defendants then refer to the meeting of 3 July 1997 at which the letter was read by Howard and Baumgartel and say that the defendant "contemporaneously explained and qualified certain parts of the letter as pleaded in par 10 of the statement of claim". A similar plea is made in relation to the meeting of 5 July 1997.
Paragraph 4 of the defence is, with three exceptions, a Polly Peck defence. The defendants deny that the meanings contended for by the plaintiff arise and set up alternative meanings which they then say are justified. Again, there is no point in me setting out the alternative meanings for which the defendants contend as I will have to deal with them individually when I discuss the defence of justification. The three exceptions that I mentioned can be dealt with when I discuss the defamatory imputations contended for by the plaintiff.
Paragraph 6 contains a plea that the words were published on an occasion of qualified privilege. It is said that the defendant, as a member of the Club, and Howard, as the Club Captain (and by extension Baumgartel and Johnson) had a corresponding interest or duty in providing and receiving information concerning the plaintiff. It is also said that the defendants had reasonable grounds for honestly believing what was written in the letter as explained and qualified by the qualifications. Those pleas are repeated in opposition to the matters said to arise from the 3 July 1997 and 5 July 1997 meetings. The defendants deny the matters raised in support of the claim for aggravated and exemplary damages. They also set up a claim for mitigation of the damages should the need arise.
Credibility - A General Comment
I heard evidence from Howard, Baumgartel and Johnson as to what occurred before the plaintiff's application for membership came before the General Committee. I also heard evidence from Peter Stewart and Alistair Hope who were members of the General Committee and who attended the meeting on 15 July 1997. In my view they were credible witnesses and I have no hesitation in accepting what they told me.
Counsel for the plaintiff cross‑examined each of them as to the way in which their witness statements were prepared and signed and the level of discussion between the various witnesses (and the defendant) about their statements or the events referred to in them. Baumgartel said that he had discussed some issues with Howard to refresh his memory. However, I am satisfied that there was nothing disclosed in cross‑examination that indicated collusion between the witnesses or anything else that would cause me to taken an adverse view of their credibility or to ascribe less weight to their testimony. There were some differences in the respective accounts but I do not believe that they were material. They are differences which, I think, I am able to resolve in a manner that does not call into question the credibility of the witnesses concerned.
I cannot say the same about the evidence of either the plaintiff or the defendant. Given the peculiar nature of the relationship between the plaintiff and the defendant I have endeavoured, where possible, to look for and rely on independent evidence rather than on the testimony of the parties. That is not to say that I have rejected their respective testimonies entirely. This will emerge as the reasons develop.
Events Concerning the Club Prior to 3 July 1997
Before I consider what imputations arise from the Objection Letter and whether the words complained of are defamatory I need to describe in more detail what happened before and at the meetings on 3 July 1997 and 5 July 1997 and at the meeting of the General Committee on 15 July 1997.
The Rules of the Cottesloe Golf Club provide for a Committee that is responsible for the management of the Club and which has absolute authority regarding the conduct of all of the affairs and business of the Club unless otherwise specified: r 18. The president and Captain are ex‑officio members of the Committee and the Captain is the chairman of the Committee. Rule 19 provides for sub‑committees, including a membership committee, with members appointed by the Committee. The powers and duties of the sub‑committees are not otherwise specified or set out in the Rules. The Captain is an ex‑officio member of all sub‑committees. Rule 17 provides for the appointment of a paid Manager. He or she is not a member of the Committee. The duties of the position include keeping minutes of all proceedings of all committee meetings and dealing with correspondence. The provisions governing applications for membership are, relevantly, as follows:
"34.Every applicant for admission as a Member of the Club … shall be duly proposed and seconded in writing by two Members, both of whom shall be answerable for the eligibility of such applicant and each of whom shall have been a Member for a period of not less than five years. The proposer must submit the names of three Members of the Club who have personal knowledge of the applicant and who are willing to support the applicant's candidature.
35.The nomination paper of every applicant for membership shall be displayed on the noticeboard of the Club for at least fourteen days before the day of election, and such nomination paper shall contain the applicant's full name, address and occupation and be signed by the applicant, the proposer, and the seconder.
36.All .. Members, … shall be elected by the Committee on a day to be notified. Each election shall be by ballot and two adverse votes shall exclude the applicant from membership."
No documentary evidence (for example a minutes of a Committee meeting) was led to establish that in 1997 a membership committee had been formally appointed or was acting as such. It can therefore be ignored for formal purposes although it is apparent from the evidence of some of the witnesses that they thought the body existed and was active. Counsel for the plaintiff was particularly sensitive to evidence being led on this issue. In the end, I think it was relevant primarily to the qualified privilege question and I think it is possible to deal with that defence in a broader way.
On 24 November 1994 the plaintiff's application for membership of the Club was lodged. It was supported by letters from Thomas Morley, the proposer and Charles Clifford, the seconder. Shortly before the application came up for formal consideration Clifford took the plaintiff to the Club and introduced him to Howard as a prospective member. I will deal with Howard's response in the next paragraph. By the time the application came to the "top of the pile" Morley had died. The Committee decided that the application was invalid. On 14 September 1996 the then manager wrote to the plaintiff advising him accordingly and returning his deposit. He was told that a fresh application could be lodged. On 25 September 1996 Brent Sunderland, a member, proposed the plaintiff for membership. Clifford continued as seconder.
Howard's evidence was that after he had been introduced to the plaintiff he checked the application. He was not impressed by the level of detail which Morley and Clifford had provided concerning their knowledge of the plaintiff. In Howard's view the proposer and seconder had taken a rather casual approach to the requirements for applications. Howard was cross‑examined at some length about the letters written by the proposer and seconder and why he thought they were deficient (T 445‑448). I am satisfied with his explanation. He also said that around this time there was enormous demand for memberships and the Club was subjecting applications to considerable scrutiny. Johnson gave evidence to similar effect. Howard said that he had taken a decision not to support the application. He also said that shortly after the meeting with the plaintiff he had been approached by the defendant. The defendant had asked him what the plaintiff had been doing at the Club that night and Howard responded that the plaintiff was an applicant for membership. According to Howard, the defendant expressed reservations about the plaintiff being a member of the Club but did not expand on them. Howard was aware that a letter of objection would be provided. Howard also testified that the letter from Sunderland did not influence (in the sense of change) his decision to vote against the application.
I accept the evidence of Howard and Johnson that I have just outlined.
The Meeting of 3 July 1997
On 3 July 1997 the defendant handed the Objection Letter to Howard and was invited to the manager's office to discuss it. The only persons present at that meeting were the defendant, Howard and Baumgartel. The evidence of Howard and Baumgartel was that the meeting lasted about 30 minutes.
Howard's evidence was that he read the letter and handed it to Baumgartel. He then asked the defendant to go through the letter and explain its contents. The defendant said that it was the first time he had made an objection. He had not enjoyed it but felt under an obligation to the Club to do so. He said that what was in the letter was largely based on what other people had told him. Howard reassured him that what he had written would be treated as confidential. The defendant made comments on individual aspects, which I will detail later. Howard agreed in cross‑examination that apart from the paragraph on the second page of the letter referring to Mr Nichevich, the defendant did not say, in relation to any part of the letter, "you should ignore that paragraph". Howard denied that at the end of the meeting the defendant insisted that the application be rejected there and then. He said that he told the defendant that the Club intended to follow its normal procedure and that it would go up to the Committee. Howard then asked Baumgartel to arrange a further meeting at which the Club President could be present.
Baumgartel confirmed that he did not take notes of the meetings of 3 and 5 July and, so far as he could recall, nor did anyone else. Baumgartel's evidence as to the course which the meeting took is materially the same as that of Howard.
On 5 July 1997 the defendant attended a further meeting in the manager's office with Howard, Baumgartel and Johnson. It lasted about 30 minutes. Baumgartel testified that he showed the letter to the persons present and that the defendant went through it again. Howard said that the meeting followed much the same course as had the earlier discussion. Johnson testified that Howard invited the defendant to explain the letter of objection that he had written. Johnson said that he was not particularly interested in the contents of the letter. What was more significant to him was the fact that a member had an objection to the plaintiff's application. The defendant had expressed concern at having to write the letter but that he thought it was in the best interests of the Club. Johnson read the letter but could not remember the details. The defendant then proceeded to explain the contents. Johnson's recollection was that there was little or no comment by anyone other than the defendant at the second meeting.
There are no material differences in these versions and I accept the evidence that I have outlined.
I turn now to consider the evidence as to what the defendant said by way of explanation of the contents of the Objection Letter. The defendant gave evidence of these discussions. However, consistent with the general approach that I have mentioned, I have preferred to rely on the evidence of Howard, Baumgartel and Johnson as to what was said. I say this in the full knowledge that none of those witnesses pretended to be reciting what had been said word for word. Each was making a best endeavour to give the gist of what had been said according to his recollection.
I have set out as Table "A" to these reasons a schedule which takes each paragraph of the Objection Letter and then compares the evidence of the defendant, Howard, Baumgartel and Johnson in this respect. Leaving to one side the evidence of the defendant, there was little in the cross‑examination to cause me to doubt the reliability of that testimony.
I should, however, mention a couple of points. Although it was not mentioned in his witness statement, Howard gave viva-voce evidence‑in‑chief and in cross‑examination that when discussing the eleventh paragraph of the Objection Letter the defendant had said of the plaintiff: "He's not a criminal". It was not in his statement of evidence but in cross-examination Baumgartel said that during the course of the meeting the defendant told those present that he had reported the plaintiff to the police after the plaintiff had taken some documents from his office. However, the defendant had also said that the police report was not the reason why he had written the letter and he did not want it taken into account.
In cross-examination Johnson said he could not recall the defendant making mention of a report to police. Johnson also said, in relation to the tenth paragraph of the Objection Letter, that he had said to the defendant: "There has been media coverage on previous [Club] members". The defendant had responded with words to the effect: "These people are not in his league". Howard made no mention of the defendant having said he had reported the plaintiff to the police. Nonetheless, I have no reason not to accept Baumgartel's recollection of the exchange.
In relation to the imputation concerning the plaintiff's participation in the pyramid selling scheme, I specifically accept Baumgartel's evidence that the "defendant simply read that part of the letter". Neither he nor Howard testified that the defendant had in any way qualified the words in the Objection Letter: "he was one of the 'Mr Bigs' in the Concorde Airline Club" (my emphasis). As will appear shortly, this is an important finding in relation to the content of the imputation that the defendant has to justify.
I make these findings. The Objection Letter came into the possession of, and was read by, Howard, Baumgartel and Johnson in the way that I have described. On 3 July 1997 and 5 July 1997 meetings occurred between the defendant and Howard and Baumgartel or Howard, Baumgartel and Johnson in the terms that I have described. The defendant explained parts of the letter to them. I find that the explanations that I have listed below (in each case corresponding to a paragraph number in the Objection Letter) were given.
1. Second Paragraph
The defendant said he believed the plaintiff was not a fit and proper person to be a member of the Club. The defendant also said that he had reported the plaintiff to the police when the plaintiff had taken some documents from his office.
2. Third Paragraph
The defendant did little more than read from the letter. He said that he had not been able to ascertain whether Brajkovich had been warned off all race tracks in the State but he understood that he (Brajkovich) had been involved in some dispute with the WA Turf Club.
3. Fourth Paragraph
Some reference was made to Mr Martin but no detail was given as to what was said and the paragraph therefore stands on its own.
4. Fifth Paragraph
Howard told the defendant that it was not particularly relevant that the plaintiff had been made bankrupt because that was no bar to membership under the Rules. The defendant agreed but said that was not the point he was trying to make. Although he did not give specific details the defendant said that the plaintiff had been very hard on his creditors.
5. Sixth Paragraph
The defendant referred to the newspaper clippings which reported that the plaintiff had been found to have sexually discriminated against a man in not allowing him entry to the Racquet Club nightclub. The defendant said that the plaintiff was an owner‑manager of the Racquet Club and referred to another newspaper clipping which stated that a girl had been barred for being ugly. When it was pointed out to him that the text of the article was not included in the Objection Letter the defendant said that he had not done so because the incident related to a bouncer and did not directly involve the plaintiff. He said that the clipping was relevant because the plaintiff was the owner‑manager of the Racquet Club. The defendant also mentioned that overcrowding convictions had been recorded in relation to the Racquet Club that were either against the nightclub or against the plaintiff.
6. Seventh Paragraph
The defendant referred to one of the newspaper clippings in which it had been reported that the plaintiff had been found not to be a credible witness.
7. Eighth Paragraph
The defendant simply read that part of the letter. He said he had heard the plaintiff being involved in the Concorde Airline Club from a number of people but that he had no personal knowledge of the plaintiff's involvement in the schemes. He was relying on what he had been told by the plaintiff's former solicitor and partners.
8. Ninth Paragraph
The defendant as told by those present at the meeting that it was a Mr Starcevich (not a Mr Nichevich) who had made an unsuccessful application for membership of the Club. He then told those present to disregard that paragraph.
9. Tenth Paragraph
The defendant said that he tried to obtain information as to other matters in which the plaintiff may have been involved but had been unable to do so because of confidentiality restrictions imposed by some agencies.
10. Eleventh Paragraph
The defendant said that he did not associate the plaintiff with the comments or the persons referred to in the second‑last paragraph. He added words to the effect that "these people are not in his league" and "he's not a criminal".
The Committee Meeting of 15 July 1997
The next relevant event was the Committee meeting of 15 July 1997. By that time a second letter of objection had been received although it was confined to the fact of opposition without going into detail.
Howard testified that he was not concerned with the content of the Objection Letter but rather with the fact that an objection had been lodged. It was the policy of the Club not to table objection letters. When the subject came up for discussion at the Committee meeting on 15 July 1997 Howard reported that there were two letters opposing the plaintiff's application, one was short and the other long. The letters were not tabled and nor were their contents discussed. Howard voted against the application.
Hope was also present at the meeting. He had not read or seen the Objection Letter and nor was it tabled at the meeting. Howard had identified the authors of the two letters of objection but had not gone further. Hope had decided to vote against the plaintiff's application and he did so. His reason for so doing appears from this exchange in his cross‑examination:
"Is the reason you voted no that you wanted to avoid a conflict between Mr Brown and a member of the club?---I wanted to avoid a conflict between Mr Brown and members of the club. I had understood that there wasn't only one member who had expressed reservations about Mr Brown.
There were two objections before the meeting, were there not, that you were advised of?---I think Mr Howard told the meeting that he had received letters from two members expressing reservations and I have a recollection that I had been advised that other people had expressed concerns as well."
In the days leading up to the meeting Hope had overheard conversations at the Club between two or three other members (not the defendant but probably including Howard) that a number of people had reservations. This explains the last part of that exchange. It would be trite to say that this is not evidence that other members were opposed to the plaintiff's admission but simply as to Hope's state of mind.
Stewart was also present at the Committee meeting of 15 July. He supported Howard's evidence that the Objection Letter was not tabled and nor were its contents discussed. He never saw the letter and nor did he discuss it with the defendant or with any other person. He too voted against the plaintiff's application. He did so on the basis that objections had been made and without any knowledge of the contents of the objections.
Johnson also testified to having voted against the plaintiff's application. He, of course, had been at the meeting on 5 July 1997 and was aware of the contents of the letter. However, he said that he was more concerned with the fact that an objection had been lodged than with the contents of the letter.
I accept all of the evidence of Howard, Hope, Stewart and Johnson that I have just outlined. In particular, I accept that Howard, Hope, Stewart and Johnson voted against the plaintiff's application because of the fact that objections had been lodged and were not influenced by the content of the letter. Howard was also influenced by his concern about what he described as the casual manner in which the proposers had presented information. Of course, neither Hope nor Stewart were aware of the contents of the Objection Letter.
The Importance of the Qualifications
It is a critical part of the defendant's case that the Objection Letter is not to be viewed in isolation. Rather it is to be considered in the light of what was said at the meetings of 3 July 1997 and 5 July 1997. The plaintiff challenged that contention, both as a matter of law and on the facts. It is necessary to resolve the issue before going on to consider the substance of the plaintiff's claim and of the matters raised by way of defence.
It is trite law that words complained of have to be viewed in their context. The point was raised when the defendant sought leave to amend the defence during the interlocutory stages of these proceedings. In Brown v Marron, unreported, SCt of WA (Steytler J); Library No 980686; 1 December 1998 Steytler J said, at 6 ‑ 7:
"There is no doubt that in considering whether or not defamatory imputations arise it is necessary to take into consideration, not only the actual words used, but their context (see Nevill v Fine Arts & General Insurance Co Ltd [1897] AC 68 at 72, per Lord Halsbury LC). Gatley on Libel and Slander, 9th ed, para 3.28, suggests that it follows from the fact that the context and circumstances of the publication must be taken into account that the plaintiff cannot pick and choose parts of the publication which, standing alone, would be defamatory. There can, I think, be little doubt as to the correctness of that proposition (see Charleston v News Group Newspapers Ltd [1995] 2 AC 65 and Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410). Thus, where a newspaper article refers to another report in the same issue either party is entitled to have that other report read as part of the context in which the meaning of the words complained of is to be determined (see Thornton v Stephen [1837] 2 M & Rov 45 and Gatley, supra, para 3.30). It may, in an appropriate case, even be necessary to go outside the document in which the words complained of are contained in order to obtain the necessary context (see Smyth v MacKinnon [1897] 34 SLR 1086).
That being so, it seems to me to be plain that a defendant should be entitled to raise contextual material in the defence where that contextual material has not been pleaded by the plaintiff and where it might affect the meaning put upon the words complained of by the ordinary reasonable reader.
It seems to me also to be plain that contextual material of that kind might include, as it is said to do in this case, newspaper cuttings attached to the letter the subject of the plaintiff's complaint. Moreover, it seems to me that an oral explanation or qualification of written material made simultaneously with the reading of that material might also comprise relevant contextual material. There is, I think, no relevant distinction between that situation and one of the kind which occurred in Thornton v Stephen, supra, in which one newspaper article referred to another in the same issue or in Smyth v MacKinnon, supra, in which a letter was required to be read in its context in the whole of the correspondence of which it formed a part. The fact that the contextual material is oral rather than in writing seems to me to be of no significance if, in truth, it qualifies the meaning of the written material at the time at which that material is read.
It consequently seems to me that it is open to a defendant to plead contextual material of that kind."
I acknowledge that Steytler J was dealing with a pleading point, not with an issue of substance. Nonetheless, what his Honour said seems to me to follow as a matter of principle and logic beyond the pleadings and into the substance of the action. I have no hesitation in adopting this dicta.
Of course, this does not provide the complete answer. The problem is that, generally speaking, the tort is complete at the moment of publication: Gorton v The Australian Broadcasting Commission (1973) 22 FLR 181 at 183; Grapelli v Derek Block Holdings [1981] 1 WLR 823 at 831. So it is, for example, that a defamatory publication followed by a retraction, perhaps the next day or even an hour or so later, does not destroy the cause of action arising from the original publication. But it still begs the question, what is "the publication"? In Gatley on Libel and Slander, 9th Ed (to which I will refer from time to time simply as "Gatley") at par 3.30 the authors give a number of examples of instances where context is important. One is where an apparently innocuous statement is made on p 100 of a book but when the reader moves to p 110 there is another piece of information from which the true meaning emerges. The statement on p 100 is defamatory. Similarly where a book is published in serial form, with parts appearing perhaps a week apart, the situation may necessitate the entire series being considered in order to decide how the ordinary reasonable reader would understand one particular passage.
Each case must depend on its own facts. There must be an intimate connection between the primary source of the alleged defamation and the other material which is said to form part of the context. The primary and secondary sources must be so closely connected, interwoven or enmeshed that it is necessary to take them effectively as one transaction in order to arrive at the true import and meaning of what was written and said. The requisite degree of intimacy will usually (although not always, for example in the serialisation situation) demand contemporaniety. It will be necessary to consider all of the surrounding circumstances to decide whether the secondary materials are so intimately connected with the primary sources that they are to be taken to be a part of the context which might affect the way in which the ordinary reasonable reader would understand the words complained of.
In this case there was a very close temporal proximity between the delivery of the letter to Howard, the reading of the letter by Howard and Baumgartel and the verbal presentation by the defendant. I think it emerges from the evidence that the defendant was physically present when Howard and Baumgartel read the letter. The same can be said of Johnson's involvement. The defendant was present when Johnson read the letter and he moved straight on to explain its contents. Accordingly, to the extent that par 16 of the statement of claim founds a separate cause of action, the same considerations apply.
In my view, in the circumstances of this case, it is appropriate to regard what was said at the meetings on 3 July 1997 and 5 July 1997 as part of the context against which the words complained of in the Objection Letter are to be assessed.
The Defence of Justification - A Preliminary Comment
Logically, the next step is to consider whether the words complained of bear all or any of the imputations contended for by the plaintiff in pars 4 and 11 of the statement of claim and whether they are defamatory. It will be convenient to consider, at the same time, the alternative imputations or meanings contended for by the defendant in par 4 of the defence. I should explain why.
Once an imputation is shown to be defamatory it is presumed to be false: Belt v Lawes (1882) 51 LJQB 359 at 361. In the common law jurisdictions (of which Western Australia is one) truth, or justification as it is technically known, is a complete defence. The onus is on the publisher to prove that the imputations arising from the words complained of are substantially true: West Australian Newspapers Ltd v Bridge (1978-79) 141 CLR 535 at 544; Gobbart v West Australian Newspapers Ltd [1968] WAR 113 at 118.
Where more than one imputation is conveyed by the words complained of the publisher may seek to justify some but not all of them. But if it does so, the publisher will be liable in damages on the imputations that have not been justified unless some other defence applies: Cohen v Mirror Newspapers Ltd [1971] 1 NSWLR 623 at 627. In other words, in Western Australia there is no defence of partial justification as there is in some jurisdictions where the common law has been modified by statute. Alternatively, if there is a "common sting" to the imputations they are not to be regarded as separate and distinct defamatory statements and the publisher is entitled to justify the sting rather than the individual allegations: Polly Peck (Holdings) Ltd v Trelford [1986] 1 QB 1000 at 1032.
With the defence of truth it is only the meanings that the words complained of actually bear that the publisher is required to justify: Gatley at par 11.4. A publisher is entitled to contend that the words complained of, in their context, bear a different meaning or imputation from that alleged by the plaintiff. This is the essence of the Polly Peck doctrine as it has been approved and applied in this jurisdiction: Gumina v Williams (No 2) (1990) 3 WAR 351 ; Cash v Morris (1993) 10 WAR 518 . Notwithstanding criticism of the Polly Peck doctrine by some members of the court in Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519, it remains good law in this State.
I did not understand the defendant to argue that the various imputations bore a common sting. Accordingly, that aspect of the Polly Peck doctrine can be ignored. However, the defendant set up, and sought to justify, alternative meanings or imputations to or from those contended for by the plaintiff. It is, therefore, necessary for me to decide what imputations the Objection Letter bear.
The Imputations
As the authors of Gatley remark, at par 1.5, there is no wholly satisfactory definition of a defamatory imputation. Three formulae have been particularly influential. First, an imputation that tends to "lower the plaintiff in the estimation of right thinking members of society generally": Sim v Stretch (1936) 52 TLR 669 at 671. However, the phrase "right thinking members of society" was criticised by Griffiths CJ in Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7. His Honour preferred the phrase "a [person] of fair average intelligence". Secondly, an imputation that tends to cause others to "shun or avoid the plaintiff": Yousoupoff v MGM Pictures (1934) 50 TLR 581 at 587. Thirdly, an imputation that tends to expose the plaintiff to "hatred, contempt or ridicule": Capital and Counties Bank Ltd v Henry (1882) 7 App Cas 741 at 771.
I think it is probably sufficient for the purposes of this case if I were to say that an imputation is defamatory if it is likely to lead the recipient, as an ordinary person, to think less of the person to whom it relates: Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 at 638.
What I have said to date is more concerned with the essential character of the words complained of as conveying a defamatory meaning than it is with the categorisation of the "ordinary person". I think the tests in relation to the latter (usually referred to as "the ordinary reasonable reader") are equally well known. They arise from cases such as Jones v Skelton [1963] 1 WLR 1362, particularly at 1370 ‑ 1371, Lewis v Daily Telegraph Ltd [1964] AC 234, particularly at 258 ‑ 259 and Morgan v Odhams Press Ltd [1971] 1 WLR 1239 at 1245, 1254. In this respect I cannot add much to what I said in Smith v Littlemore (1996) 15 WAR 289 at 294 ‑ 295.
The first imputation contended for by the plaintiff is that the plaintiff was a rude, arrogant and ill‑mannered person. The defendant's version omits the words "ill mannered". I do not think there is much difference between the two versions. The words used in the third paragraph of the Objection Letter are that the plaintiff has a "manner which is extremely rude and arrogant". The imputation (whether it be in the form contended for by the plaintiff or the defendant does not matter) clearly arises from the words complained of. The Shorter Oxford Dictionary defines the word "rude" to mean, among other things: "ill-mannered, impolite; offensive or discourteous". The word "arrogant" is defined to mean, among other things: "aggressively conceited or presumptuous". Reading the Objection Letter as a whole, even taking into account the qualifications, I think the imputation has been made out and it is defamatory in the sense that it would tend to cause the ordinary reasonable reader to think less of the plaintiff.
The plaintiff's second imputation is that the plaintiff was an unethical real estate agent. The defendant says that the meaning which arises is this: "the plaintiff had acted unethically in a real estate business dealing in the 1970's". In the particulars to par 4.3 of the defence the defendant cites two instances. The first is that the plaintiff complained to the Real Estate Institute of Western Australia (Inc) and to the Land Agents Supervisory Board about the sale of the South Perth flats to the defendant when there was no grounds for making the complaint. The second was an instance when the plaintiff had made an approach to a vendor notwithstanding that a "for sale" sign indicated that the vendor was represented by another agent.
The critical words appearing in the Objection Letter are these: "During the seventies he had a real estate business trading as Brown & Brajkovich, most in the industry were cautious about dealing with him because of the unethical manner in which he operated". In accordance with the findings that I have set out above there was no relevant qualification of this aspect of the Objection Letter. It cannot reasonably read as being confined to "a real estate business dealing in the 1970's" (my emphasis) or to two incidents as contained in the particulars to par 4.3 of the defence. In fact evidence was led of a third incident, involving John Malloch. To say that people in the industry were cautious about dealing with the plaintiff "because of the unethical manner in which he operated" does give rise to the imputation that he was "an unethical real estate agent". On this point I therefore find in favour of the imputation as formulated by the plaintiff and not in the terms contended for by the defendant. I also think it is defamatory to say of anyone in commerce that they have, in an industry which is governed by a statutory licensing regime, acted in an unethical manner.
The third imputation in the statement of claim is that the plaintiff associated with undesirable people. This comes from various parts of the Objection Letter. In the third paragraph the defendant says that his intention in writing the letter was to "explain … the type of person [the plaintiff] associated with and may introduce to the club". In the fourth paragraph he refers to Brajkovich and says that he had read in the press that Brajkovich had been warned off all race tracks in the State. He then refers to Robert Martin as a former partner of the plaintiff who was a large defaulting borrower of Teachers Credit Society and who had been gaoled for bribery. The ninth paragraph contains a reference to a Mr Nichevich, a person who had recently had his application for membership at Cottesloe Golf Club declined and to the plaintiff having a close friend "fitting this name description".
There is no relevant qualification of the first part of that statement. In relation to Brajkovich the qualification is that the defendant had been unable to ascertain whether he had been warned off but the defendant understood that he was in dispute with the WA Turf Club. As I have said, there was no relevant qualification of the statements concerning Martin. When told that Nichevich was not the person who had suffered a rejection of a membership application the defendant said that the persons at the meeting should disregard that paragraph.
In par 4.4 of the defence the defendant denies that the meaning is as contended for by the plaintiff and says that the words complained of mean that the plaintiff had associated with people who were not fit and proper persons to be members of the Club.
The defendant's contention seems to be that he was simply drawing attention to the type of person the plaintiff "may introduce to the club" in the sense of proposing them for membership. That seems to be the import of the reference to persons who are not fit and proper to be members of the Club. If that is the case, it begs the rhetorical question: so what? There is a mechanism within the Club rules by which undesirable elements of society can be identified and sent away to take their recreation on public golf courses or at some other club with lesser standards. I think that the defendant's contentions involve an understanding of the entire publication that is too narrow. It relates to the "character" of the plaintiff and to the type of person he "associates with". It is not confined to those he may introduce to the Club in the sense that I have outlined.
In my view the sting of the words complained of (even taking into account the qualification concerning the Brajkovich comment and, taking the best view for the defendant, ignoring completely the reference to Nichevich) is that the plaintiff's character is suspect because he associates with undesirable people. Again, on this point I find that the imputation is as contended for in par 4.3 of the statement of claim and it is defamatory.
The fourth imputation in the statement of claim is that the plaintiff had been adjudged bankrupt. The words are: "around 1983/84 [the plaintiff] was placed into Bankruptcy". In my view this was appropriately qualified at the meeting and does not, of itself, give rise to a separate defamatory imputation. I do not need to deal with par 4.5 of the defence.
The fact of the bankruptcy, or more accurately an arrangement under Part X of the Bankruptcy Act 1966 (C'th), is relevant to the fifth and sixth imputations in the statement of claim. It is said that the plaintiff acted brutally with his creditors and former partners. That is pretty well what the words in the sixth paragraph say. The qualification was that the plaintiff was hard (not brutal) on his creditors. I would have been tempted to say that this was not defamatory. I think the ordinary reasonable reader would know that insolvency arrangements often leave significant deficiencies. It is always "hard" on creditors to suffer a loss. I am not sure that that imputation, without more, is defamatory. However, the plea in pars 4.6 and 4.7 seems to assume the defamatory character of the imputations and I should deal with it in accordance with the pleadings. In other words, I will approach it on the basis that the meaning is "hard" rather than "brutal".
As the case developed, I think the allegation concerning "former partners" was confined to Robert Martin. I will deal with it in that way. When the plaintiff underwent the Part X arrangement, Martin was left to deal with the creditors of the failed venture.
The next imputation is that the plaintiff had a number of convictions. Despite the apparently broad wording of the seventh paragraph of the Objection Letter, counsel for the plaintiff seemed to accept in closing (T 665) that the imputation was as pleaded in par 4.8 of the defence, namely, that the plaintiff had a conviction for overcrowding at the Racquet Club. This seems to render irrelevant (at least for the purposes of this imputation) the evidence about the sexual discrimination incident concerning Daniel King. The qualification made at the meeting is that a conviction had been recorded either against the nightclub or against the plaintiff. In my view (and this is in accordance with the pleading) that still leaves open the possibility that the plaintiff himself had suffered the conviction. In my view it is defamatory to say of a person involved in the entertainment industry that he has been convicted of an offence in relation to that industry.
In the statement of claim it is also said that the words complained of meant that the plaintiff had acted improperly by refusing entry to a night club to a girl because she was ugly. The qualification was to the effect that the incident related to a bouncer at the club and did not directly involve the plaintiff. However, the plaintiff was the owner-manager of the club. Paragraph 4.9 of the defence sets up an alternative meaning. It is that a bouncer at the plaintiff's nightclub had acted improperly by refusing entry to a girl for the stated reason that she was "too ugly". It is also said that the operation and conduct of the night club was the plaintiff's responsibility. In light of the qualification I accept that the imputation is as contended for by the defendant in par 4.9 of the defence.
It is convenient to deal with the ninth and tenth imputations together. They are that the plaintiff contravened the law by being a major promoter in a pyramid selling organisation and that he had caused loss to others by engaging in pyramid selling. In pars 4.10 and 4.11 of the defence the defendant says that the only imputation to arise from the words complained of is that the plaintiff had been involved in a pyramid selling game. The words complained of in the eighth paragraph of the Objection Letter refer to the defendant's understanding that the plaintiff was one of the 'Mr Bigs' of the Concorde Airline Club, a pyramid selling organisation. It is also said that "thousands lost money, the Ministry of Fair Trading made public statements about the legality of the scheme and are still looking to lay charges against the organisers". The qualification was that the defendant had heard the 'Mr Bigs' allegation from a number of people but that he had no personal knowledge of the plaintiff's involvement in the schemes. He was relying on what he had been told by the plaintiff's former solicitor and partners.
In this instance I am not sure that the qualification assists the defendant at all. It is trite law that "for the purposes of the law of libel a hearsay statement is the same as a direct statement, and that is all there is to it": Lewis v Daily Telegraph Ltd at 284, cited with apparent approval in Stephens v West Australian Newspapers Ltd (1993-94) 182 CLR 211 at 246. To add the rider that he had no personal knowledge of the plaintiff's involvement is not sufficient to remove an otherwise defamatory character from the statement. Even if the rider were to go so far as the defendant expressing a doubt as to the truth of the allegation (which this one did not), the defendant would not be relieved of liability: see Gatley at par 6.29. The rider may be relevant to other defences but it does mean that the imputation does not arise or that it is not defamatory.
The letter refers to the plaintiff as a "Mr Big" of the Concorde Airline Club, a pyramid selling organisation, that thousands lost money in the scheme, that the Ministry of Fair Trading had made statements about the legality of the scheme and was looking to lay charges against the organisers. In my opinion the ordinary reasonable reader would regard a "Mr Big" as an "organiser" or "major promoter" of the scheme. The reader would understand the reference to statements made by a regulatory authority concerning the legality of the scheme as carrying the implication that involvement in the scheme was contrary to law. However, I am not sure that the statement "thousands lost money in the scheme" carries with it the implication that the plaintiff "caused" losses to others by engaging in the scheme. I am satisfied that the ninth imputation arises but not the tenth.
The next question is whether it is defamatory. There are always difficulties in deciding between allegations of guilt and suspicion of guilt: see Corse v Robinson, unreported; FCt SCt of WA; Library No 970669; 23 October 1997. In this case I think the ordinary reasonable reader would glean from the words complained of the meaning that the plaintiff had contravened the law by being a major promoter of a pyramid selling scheme. That is defamatory.
The eleventh imputation contended for by the plaintiff is that the plaintiff acted improperly as a real estate agent. Once again, an allegation in defamation litigation that a person acted "improperly" is destined to cause problems. It is apparent from par 4.12 of the defence that those advising the defendant thought this imputation was no different from the second imputation in the statement of claim. I take the same view.
The bald assertion in the twelfth imputation that the plaintiff acted improperly as a licensee is unhelpful. In par 4.13 of the defence the defendant sets up an alternative meaning, namely that the plaintiff acted improperly during his involvement in the nightclub business. It then gives a number of particulars. One is the sexual discrimination allegation concerning Daniel King. Another is that the Equal Opportunities Tribunal had, in a judgment, found that the plaintiff was not a credible witness. Thirdly, the allegation about the bouncer and "the ugly girl". Fourthly, the conviction for overcrowding. I am prepared to proceed on the basis that the imputations as contended for by the defendant arise from the words complained of. That having been said, the allegations concerned are all covered elsewhere and simply repeat meanings that have already been pleaded. I do not think they add to the claim or the defence.
In par 4.13 of the statement of claim it is pleaded, as an imputation, that the plaintiff had committed many indiscretions. This is, once again, unhelpful. The qualification was that the defendant had tried to obtain information as to other matters in which the plaintiff may have been involved but had been unable to do so because of confidentiality restrictions imposed by some agencies. That is the import of par 4.14 of the defence. In my view, the meaning is as contended for by the defendant and it is not defamatory.
The fourteenth imputation contended for by the plaintiff is that the plaintiff was so unsuitable for membership of the Club that any other person on the waiting list would be a better choice. I presume that this comes from the final paragraph of the Objection Letter. The defendant admits that this is the meaning that arises from the words complained of. The defendant does not seek to justify that imputation. The defence contains a denial that the words were published maliciously and a denial that because of the publication the plaintiff has been injured in his character and reputation. It is implied in par 4.15 that the imputation is not defamatory. I think the ordinary reasonable reader would understand the words complained of as meaning that the plaintiff was so lacking in character that any other person who had made an application for membership would be a better prospect. That, it seems to me, goes further than saying the plaintiff was not a fit and proper person to be a member. It is defamatory.
The final imputation is that the plaintiff had so conducted himself as to give rise to a reasonable concern that he would be convicted of criminal offences and imprisoned. The qualification was to the effect that the defendant did not associate the plaintiff with, or put the plaintiff in the same league as, other Club members who had been convicted and gaoled and he was not saying the plaintiff was a criminal. This is the effect of par 4.16 of the defence. In my view the meaning is as contended for by the defendant and it is not defamatory.
Summary of Findings on Imputations
I find that the following defamatory meanings or imputations arise from the Objection Letter as qualified.
1.The plaintiff was a rude and arrogant person.
2.The plaintiff was an unethical real estate agent.
3.The plaintiff associated with undesirable people.
4.The plaintiff had been hard on his creditors and on Martin, a former partner.
5.The plaintiff had a conviction for overcrowding in the nightclub.
6.The plaintiff, being responsible for the operation and conduct of the nightclub, was responsible for the actions of a bouncer who had improperly refused to admit a girl to the nightclub because she was "too ugly".
7.The plaintiff had contravened the law by being a major promoter in a pyramid selling organisation.
8.The plaintiff was so unsuitable for membership of the Club that any other person on the waiting list would be a better choice.
The imputations numbered 1, 4, and 6 in that list are the subject of a plea by the defendant that they are true in substance and in fact. They can be dealt with on the merits without further comment.
If I were to take a strict approach the defendant may have some difficulty with the defence of justification on the imputations numbered 2 and 7 in the list. This is because he has failed to convince me that the meanings for which he contends, and which he seeks to justify, are the meanings which arise from the words complained of. However, I propose to take a broad view of the pleadings. I do not think that the meanings pleaded for by the defendant are so dissimilar to those contended for by the plaintiff that serious prejudice would arise if I were to afford the defendant the chance to establish the defence on the merits. All of the issues in this case were comprehensively dealt with both in evidence and in submissions. If, in relation to the second imputation, emphasis is placed on the word "business" rather than "transaction" the true sense emerges. As regards the seventh imputation, the concentration should be on whether the plaintiff was involved in pyramid selling schemes and, if so, to what extent.
I do not, however, take the same view of the third imputation. The allegation that the plaintiff associated with undesirable people is so different from the meaning contended for by the defendant that the two simply do not meet.
The fifth imputation presents a problem. It is dealt with in par 4.8 of the defence and there is no plea that it is true in substance and in fact. However, the case seems to have proceeded on the basis (see for example T 620) that it, too, was subject to the defence of justification. That is how I will approach the matter.
In relation to the final imputation on the list, the defendant admitted that the meaning set out in the statement of claim arose from the words complained of. The defendant did not plead, and nor did I understand him to contend, that it was subject to a defence of truth. Logically it could not have been in the absence of evidence identifying the other persons on the waiting list.
Accordingly, there are two imputations that have been found to be defamatory and to which the defence of justification does not extend. It will be necessary to consider whether the defence of justification has been made out in relation to all or any of the other six imputations. Of course the entirety of the publication is said to have occurred on an occasion of qualified privilege. That is a separate defence. I will deal with the defence of justification and then with the qualified privilege question.
The Cause of Action Against the Company
Before I turn to the substantive defences, it will be convenient to deal with the cause of action against the Company. It proceeds on the basis that the letter was written on the letterhead of the Company and signed by the defendant in his capacity as its managing director. The defence is that the letter was written by the defendant solely in his personal capacity.
In his evidence in chief the defendant said:
"Although the business name Marron Property Group was deregistered several years ago, I continue to use one or two letterheads for personal reasons. It was never intended that the letter was to be written on behalf of [the Company]. I wrote the letter in my own right and as a member of the club. I can see that I have signed my name above the words 'Managing Director' but I did so without the authority of the Company and without at any time intending that my letter be written on behalf of the Company. The use of the words 'Managing Director' when signing correspondence of this kind was done by me as a matter of course to identify my occupation rather than to suggest that I was writing on behalf of my company."
Some of that is self serving and expresses conclusions. Nonetheless, its general thrust is clear and acceptable. The reference to "one or two letterheads" goes, I think, to explain how the paper on which the Objection Letter was written contains the ACN of the Company. The defendant said in cross-examination that some of the letterhead had the number on it and some of it did not. The defendant explained that the phrase "Managing Director" was a computer generated block that appeared on his correspondence. He was referred, in his evidence, to other examples where he had written letters to the Club using the same letterhead and signing over the block "Managing Director". One such letter was to advise the Club that he had broken a toe and would not be playing golf for a while. That could hardly be described as company business. It seems to me to support the contention that the use of the letterhead was indiscriminate and did not necessarily signal a communication on behalf of the Company. Evidence was also given of correspondence from the Club to the defendant on matters that could only be described as personal to the defendant but which were addressed to him as the managing director of the Marron Property Group.
The question of authority was raised but not pursued with much vigour. The defendant said that he and his wife were the directors of the Company. On some occasions he sought formal authority to act on behalf of the Company and on other occasions he did not. I have no reason to reject the defendant's evidence that on this occasion he was not acting on behalf of the Company and that he did not have its authority to write the letter on its behalf.
I am satisfied with the defendant's explanation as to how the writing of the Objection Letter and the use of the Marron Property Group letterhead came about. The cause of action against the Company has not been made out. Accordingly, it is not necessary to go to the alternative defence of qualified privilege arising from some sponsorship arrangements between the Company and the Club.
Justification - Rude and Arrogant
The defendant says that the plaintiff is generally a rude and arrogant person. This, of itself, is unhelpful. However, the defendant goes on to refer to a number of incidents or events which, he says, goes to establish the general description of the plaintiff by that phrase. I will deal with each of them in turn. Before doing so, I wish to make one comment. Counsel for the plaintiff pressed on me the need for slavish and meticulous attention to the way that the defence was pleaded. I indicated at the time that I was minded to take a broader view of the matter and look at the alleged conduct rather than at the minutiae of the pleading. I say, unashamedly, that this is the approach I have taken.
The Daniel King Incident
King gave evidence that he made a group booking to go to the Racquet Club on 25 April 1992 as part of a work social function. The party went to a restaurant and towards the end of the evening seven men decided to go on to the nightclub. King spoke to the doorman to gain entry. The plaintiff came over while King was talking to the doorman. The plaintiff told King that he would not let a group of men into his club. He refused King's invitation for him to check the group to satisfy himself they were well dressed and not drunk. King said that while he was talking to the plaintiff two groups of women were permitted to enter the club. This exchange occurred during his evidence in chief:
"How did Mr Brown deal with you when you were trying to get into the nightclub?---He was very abrupt. He didn't want to listen to any reason.
What caused you to believe that he didn't want to listen to you? What happened?---Well, he started making accusations about us trying to get into the club under false pretences and things. We had made arrangements earlier in the week and I had spoken to Mr Brown on the telephone and made a booking.
And he made those accusations. What did you do when he made the accusations?---I said - invited him to view the rest of the people that were with me so he could see first hand that his allegations and accusations were unfounded, that we were all neatly dressed and that we were all in a sober condition. He refused to even look at us."
King said that he did not want to cause trouble and the group left. He had felt humiliated by the plaintiff's decision and attitude. On 12 May 1992 he lodged a complaint with the Equal Opportunities Commission for sexual discrimination. The plaintiff and Franquin Pty Ltd trading as The Racquet Club were named as respondents.
On 20 December 1994 the Tribunal handed down a decision on the complaint and the reasons for decision were adduced in evidence. The Tribunal concluded the complaint had been established. In the course of the reasons for decision the Tribunal had cause to remark that the members "did not regard [the plaintiff] as a credible witness".
I see no reason not to accept King's evidence that the plaintiff was abrupt, did not listen to reason, accused him of trying to gain entry by false pretences and refused to make his own assessment of the group's sobriety and state of dress. The findings of sexual discrimination against the plaintiff and the club have been established through the tender of the Tribunal's judgment. However, the finding that the plaintiff was not a credible witness is not something upon which I would act. No doubt the members of the Tribunal felt entirely comfortable with that finding. But I was not there and in any event the proceedings before the Tribunal were of a different character from the cause that I have had to try.
The North Fremantle Fence Incident
The plaintiff's son, Craig Brown, and an acquaintance, John Quilty owned a block of land in North Fremantle. It was the subject of a "purple title" in a housing development constructed according to that type of ownership. They intended to construct a strata title unit development on the part of the site to which their title related. The plaintiff, who had expertise in strata title developments that the owners did not have, was to do most of the work to obtain the strata titles. A meeting of nearby residents was held to explain the development as it would affect the other titles. Sarah Woolett, a resident, attended the meeting. Her evidence was that the plaintiff told those present that he could apply for a sale by auction of the whole of the land or they could apply to the court for an order for the land to be sold by auction unless one or more of the co-owners undertook to purchase their shares. Woolett said that she felt shaken and was in disbelief at what the plaintiff had said during the meeting. After the meeting further discussions were held with individual residents. There was disagreement among the residents as to whether, and if so how, to proceed. Negotiations went on over a period of about six months.
In April 1989 the plaintiff had the land surveyed. There was a fence between lot 1 (the lot owned by Brown and Quilty) and the adjoining lot 2. A question arose as to whether the fence was on the boundary line or whether it encroached onto lot 1. Over a period of about six months the plaintiff negotiated with the owner of lot 2 to remove the fence but to no avail. The plaintiff says that in December 1989 he intended to make a development application to the Council. Before doing so he thought the site should be cleared of rubbish and shrubs. He, his son and Quilty arranged for a bobcat to be taken to site to do the clearing work
Woolett testified that on 4 December 1989 the plaintiff arrived at the site without warning and started clearing work. The fence was knocked down and left on the ground. Some of the residents (including her) re‑erected the fence.
On 6 December 1989 the Fremantle Council wrote to Quilty and Brown saying it had come to their attention that the owners had commenced development on the property without first obtaining the consent of Council. The letter went on to say that the matter was viewed seriously and that the owners should not proceed until all approvals had been obtained.
Woolett also testified that on 3 January 1990 the plaintiff, his son and Quilty returned to the site and demolished the fence again. This time the remains of the fence were loaded on a truck and removed. Woolett says that she physically placed herself in front of the bobcat in an attempt to stop the demolition. At one stage she had to jump clear of the bobcat to avoid injury. She asked the plaintiff to stop the work but he ignored her. Police were called but declined to intervene.
On 10 January 1990 the residents took out a restraining order against the plaintiff, his son and Quilty. A certified copy of the restraining order went into evidence. It prohibits the plaintiff, his son and Quilty from entering or interfering with the applicant's quiet enjoyment of the portion of the property in dispute between the parties. They then gave a written undertaking in the same terms as the restraining order. The order then lapsed. In his evidence Brown said that in 1992, when further attempts to negotiate an arrangement with the owners failed, they sold the site.
Peter Webb is a planning consultant who does, or did, a lot of work with and for the plaintiff. He attended the meeting of residents about which Woolett spoke. He did not consider that the plaintiff was rude or inappropriate in the way he conducted the meeting or presented the proposal. He did, however, present it "in a direct and determined way". Webb says, although he was not the author of the survey diagram, that the disputed fence was about two metres inside the boundary of lot 1.
On 5 January 1990 the plaintiff wrote to the Council complaining about the activities of the co‑owners but not referring to the letter of 6 December 1989. On 8 January 1990 the Council wrote to Brown and Quilty again. They referred to the letter of 6 December and to the fact that the fence had been demolished and removed again on 3 January 1990. Council asserted that the fence was a structure and its demolition required planning consent. In cross‑examination the plaintiff acknowledged having seen both letters from the Council. He said that he did not think the first letter (6 December 1989) was in relation to the demolition of the fence. I found this explanation difficult to follow and I do not accept it.
I accept Woolett's testimony as to what occurred at the resident's meeting and as to the events of 4 December 1989 and 3 January 1990. I also find that the demolition of the fence was an unlawful act. The demolition of a structure is included within the definition of "development" in the Town Planning and Development Act 1928 (WA). The City of Fremantle Town Planning Scheme No 3 (which applied at the time) imports the statutory definition of "development". A fence is a "structure". It is contrary to the Scheme to commence development without approval. No approval was obtained. The plaintiff was therefore a party to an unlawful act in demolishing the fence, on two occasions. His explanation that he was unaware of the requirements, at least on the second occasion, is disingenuous.
The plaintiff may well have thought he had right on his side in the property dispute. The fence may have been 2.26 metres inside the boundary and it may have been impeding development. But that is not the point. The plaintiff conducted a residents meeting in a way that placed before them a proposal in a "direct and determined manner", terminology which, in my view, makes it not surprising that at least one of the residents was left "shaken and disbelieving". His conduct in demolishing the fence twice bordered on being brazen. The use of the bobcat when a resident was physically trying to prevent the work was unwise. His conduct was such as to cause a Magistrate to conclude, at least on prima facie grounds, that a restraining order ought to issue.
The Removal of Documents
It is convenient to deal with the allegations in par 4.2(e) and (f) of the defence together. They relate to an alleged assault by the plaintiff on the defendant and to the unauthorised removal by the plaintiff of documents from the defendant's office.
In the mid 1970's the defendant had an office at 91 Hay Street Subiaco. It was a two‑storey building. It was owned jointly by the defendant and an entity called M & M Nominees Pty Ltd. The defendant occupied the first floor and M & M operated from the ground floor. They had agreed to convert the building to strata title ownership on the expiration of a mortgage that existed at the time. M & M agreed to sell its interest in the building and its occupancy rights to the plaintiff and Brajkovich. At some time between September and November 1996 the plaintiff and Brajkovich moved in to the ground floor offices.
The defendant testified that he attended a meeting with the plaintiff, Brajkovich and representatives of M & M, at a solicitor's office. He told them he would only consent to the deal if he held all relevant documents, including the application for registration of the strata plan, the transfer of land and the discharge of mortgage. He says that in November 1996 after the plaintiff had moved into the building the plaintiff asked him for the documents. The defendant described the plaintiff's request as forceful, short and abrupt. The defendant refused the request. He says that the next day the plaintiff and another man stopped him in the building foyer and demanded the documents. The plaintiff pushed him and the other man made a physical threat. The defendant reported the incident to the police. There is no evidence that the police took any action.
In my view, an appropriate award of damages is $7,500.
Conclusion
The plaintiff is entitled to judgment against the defendant for damages in an amount of $7,500. The plaintiff's claim against the Company will be dismissed. Some thought will need to be given to the appropriate costs orders and I will hear counsel in that regard.
TABLE "A"
COMPARISON BETWEEN ALLEGATIONS MADE IN LETTER COMPLAINED OF
AND SUBSEQUENT QUALIFICATIONS
| ALLEGATIONS IN LETTER (references to paragraphs in Ex 1) | EVIDENCE AS TO QUALIFICATIONS MADE BY DEFENDANT IN MEETINGS HELD ON 3 & 5 JULY 1997 (references to paragraph in respective witness statements unless otherwise specified) | |||
| Marron Ex 45 | Baumgartel Ex 52 | Howard Ex 53 | Johnson Ex 57 | |
| 1. Not a "fit and proper person to be a member of the Club" (par 2). | · D had reported the P to the police on two occasions in the mid‑1970s | · D said he believed the P was not a fit and proper person to be a member of the Club (par 17) · D said he had reported the P to the police after the P had taken some documents from his office (xxn T422) | · D said he believed the P was not a fit and proper person to be a member of the Club (par 35) | |
| 2. "[H]is manner … is extremely rude and arrogant" (par 3). | ||||
| Letter | Marron | Baumgartel | Howard | Johnson |
| 3. During the 1970s, he ran a real estate business with Mr Brajkovich (par 4) à "most in the industry were cautious about dealing with him because of the unethical manner in which he operated" à read in press, "Mr Brajkovich was warned off all race tracks in the State". | · Knew P from his past dealings in real estate. · P had told others that they had fallen out over purchase of block of flats but that what had happened was that he had purchased block that P had wanted to buy and P was furious that he missed out and was v. aggressive about it · P had complained about Adams to media and to Land Agents Supervisory Board re: the block of flats, and that Adams had complained to the Board about the P. · Recalled reading about Brajkovich being in trouble at the races for payments he had made to jockeys, etc. but that the Club could check that out (pars 104 – 107) | · D "Basically read from the letter" · D said he had not been able to ascertain if Brajkovich had been warned off all race tracks in the State but he understood Brajkovich had been involved in some dispute with the WA Turf Club (pars 21 ‑ 22) | · D "basically read from the letter" · D recalled that Brajkovich had been called before the stewards of the WA Turf Club in relation to payments he had made to a trainer and jockeys (pars 39 and 41) | |
| Letter | Marron | Baumgartel | Howard | Johnson |
| 4. Later formed partnership with Robert Martin who was à one of 4 big defaulting borrowers from the Teachers Credit Society à charged with bribery and jailed (par 5) | · P went into a property development in West Perth that was not successful and that was what he believed was the reason for P going into bankruptcy · Robert Martin was his partner in that development · Martin's charges did not involve the P (in response to a question) (pars 108 and 117) | · D made some reference to Martin but "I cannot recall what was said" (par 40) | ||
| 5. Placed into bankruptcy in around 1983/4; "brutal to his creditors and former partners" (par 6) | See above. In addition · P had been very hard on his creditors and partners (par 109) | · Club Captain told D that it did not matter if P had filed for bankruptcy →D agreed but said that that was not the point he was trying to make →D said P was very hard on his creditors in his bankruptcy (but did not go into specific details) (pars 23 ‑ 25) | · "I made the point that I didn’t believe whether a person was bankrupt was all that relevant as it didn't bar him under the rules" – D mentioned he was told by a former partner that P was tough on his creditors but that he could not recall all details (pars 42 ‑ 43) | |
| Letter | Marron | Baumgartel | Howard | Johnson |
| 6. Involved in nightclub business and à "had a no. of complaints against him, incl. sexual discrimination, that resulted in convictions against him" à refused entry to a girl because she was ugly (par 7) | · Convictions referred to were for overcrowding at the Racquet Club and the sexual discrimination finding in favour of Danny King · The conviction for overcrowding was against the P or his club. The D referred to the newspaper articles which he had attached to the letter and explained: · There was an incident involving a girl being barred because she was apparently "too ugly" · That incident involved a bouncer at the Racquet Club and not the P personally · The newspaper story about the girl (to accompany the photo and headline supplied with the letter) could be provided at a later date or obtained from the newspaper | · D referred to newspaper clipping about P having been found to have sexually discriminated against a man in not allowing him entry to the Racquet Club nightclub · D said P was owner/manager of the Racquet Club nightclub and referred to another newspaper clipping which stated that a girl had been barred for being ugly · Explained the barring incident related to a bouncer and did not directly involve the P · Said the clipping was relevant because the P was the owner/manager of the nightclub | · D referred to newspaper clipping about P having been found to have sexually discriminated against a man in not allowing him entry to the Racquet Club nightclub · D said P was owner/manager of the Racquet Club nightclub and referred to another newspaper clipping which stated that a girl had been barred for being ugly · D said that he had not provided the full newspaper article because the incident mainly involved a bounder and not the P himself | · D said that the convictions mentioned in the letter were in relation to the overcrowding at the Racquet Club, of which the P was the owner. · D referred to the newspapers article about a judgment against the P or the nightclub for the sexually discriminating against a male patron of the club for refusing him entry · The attached article about the girl being barred for being ugly did not involve the P but a bouncer at his club (par 23) |
| Letter | Marron | Baumgartel | Howard | Johnson |
| 6. (continued) | · The newspaper articles attached explained the Danny King incident (pars 110 ‑ 113) | · Mentioned that overcrowding convictions had been made in relation to the Racquet Club, and may have been recorded against the P or against the nightclub (pars 18 ‑ 20) | · Mentioned that overcrowding convictions had been made in relation to the Racquet Club, and may have been recorded against the P or against the nightclub. (pars 36 ‑ 38) | |
| 7. Newspaper cuttings in relation to nightclub incidents quote Judge stating that he was "not a credible witness" (par 8). | · One of the newspaper articles attached to letter refers to the P as not being a credible witness (par 114) | · D referred to one of the newspaper clippings attached to letter (par 18) | · D referred to one of the newspaper clippings attached to letter (par 36) | |
| 8. "He was one of the 'Mr Bigs' of the Concorde Airline Club which is a pyramid selling organisation"; thousands lost money; Ministry of Fair Trading "made public statements about the legality of the scheme" (par 9). | · He had heard from a no. of people that the P. had been involved in pyramid selling · Explained what he meant by the Concorde Airline Club and the Aeroplane Game as it had been explained to him by Maher, Martin and Summers · He had no personal knowledge of whether or not the P. was involved in those schemes, but was relying on advice from his former partners and a solicitor. (par 115) | · D "simply read that part of the letter": · D added that he had heard (about P being involved in the Concorde Airline Club) from a number of people but that he had no personal knowledge of the P's involvement and that he was just relying on the advice of the P's former partners and a solicitor · D emphasised that the Club ought to examine the type of activity that the P had been involved in (pars 27 ‑ 28) | · D mentioned something about the P being involved in a pyramid selling scheme or that he had recently been told that by people · D said that he had no personal knowledge of the P's involvement in these schemes and was relying on the advice of the P's ex‑partners and a solicitor (par 45) | |
| Letter | Marron | Baumgartel | Howard | Johnson |
| 9 "I am sure that there are other matters relating to his indiscretions that have been brought to the attention of the authorities over the years" (par 11). | · There may be other matters about the P of which he was not aware but that the authorities who held that info would not make it available and the club could check this out · He had rung REIWA but they refused to provide any details of the P's history as an agent (par 118) | · D said that he had made attempts to obtain info as to other matters the P may have been involved in but he had been unable to obtain any info because of the confidentiality restrictions adopted by the various authorities (par 31) | · "I can recall [the def.] reading the third last paragraph of the letter out but I cannot recall any discussion about that paragraph" (par 47) | |
| 10 "Over the past few years, I know of 3 members of our club that have been charged with various types of criminal offences, two have been jailed …" (par 12). | · He did not associate the P in any way with the other members being jailed (par 120) | · D "simply read out the second last paragraph of the letter" (par 32) | · D said that he did not associate the P with these remarks (par 48) · D said "he's not a criminal" (xxn T437) | · D said that he did not associate the P with these comments or persons (par 25) · D said these people were not in the P's league (xxn T468) |
TABLE "B"
COMPARISON OF EVIDENCE AS TO MATTERS
TOLD TO THE FIRST DEFENDANT
(QUALIFIED PRIVILEGE)
| First Defendant's evidence | Robert Martin | Paul Summers | Kim Morrison |
| Statements said to be made by Robert Paul Martin Robert Martin told me that:- 1. P had access to all his financial statements, and that after there had been a breakdown of their relationship, he had a visit from the Taxation Office and, though he could not prove it, believed that P may have given his financial statements to the Taxation Office (Ex 45 para 76) | 1. (a) I told D that I had a very strong view that certain financial documents that P certainly would have had possession of in respect to the finance for Caversham Caravan Park came to the surface in a subsequent court hearing. I told him that I speculated that he had made the documents available either to the Fraud Squad or the DPP (T500 ‑ 501) (b) I have no reason to believe that P provided any of my details to the Tax Office and I don't recall saying that to D (T503) | ||
| First Defendant | Robert Martin | Paul Summers | Kim Morrison |
| 2. After their failed West Perth development, P had gone into a Part X arrangement with his creditors and that he (Martin) had traded through. Martin said that P and Steve Mailey had gone into bankruptcy (Ex 45 para 77) | 2. I told D that P had entered into a Part X arrangement with his creditors (T494) | ||
| 3. That the problem with the West Perth development arose from building and union problems (Ex 45 para 77) | 3. That the project was effectively sold up because of a complication with the building contractor (T494) | ||
| 4. P had had charges laid against him for sexual discrimination (Ex 45 para 78) | 4. No evidence given | ||
| 5. P had been involved in a pyramid selling game (Ex 45 para 78) | 5. I had been advised by a third party that P had been involved in pyramid selling (T500) | ||
| 6. I should talk to a private investigator, Bob Smith, who may be able to verify information about P (Ex 45 para 78) | 6. No evidence given | ||
| First Defendant | Robert Martin | Paul Summers | Kim Morrison |
| Paul Summers Paul Summers told me that:- 7. Mr Summers did not think that P would make a suitable member for the Club (Ex 45 para 81) | 7. D asked me if I thought P was a fit and proper person to be a member of the Club. I said no (Ex 64 para 28 & 29) | ||
| 8. P was involved in a pyramid selling game with a lady called Cheryl Saba (previously Cheryl Oddy) (Ex 45 para 82) | 8. I told D that I had heard that P and Cheryl Saba (nee Oddy) were partners in Aeroplane games some years ago and had made a substantial amount of money from such games. I made it clear to D that I had no direct knowledge of any involvement of P in pyramid selling (Ex 64 para 23 T534-535) | ||
| 9. P had been bankrupted (Ex 45 para 83) | 9. No evidence |
First Defendant | Robert Martin | Paul Summers | Kim Morrison |
| 10. P had a judgment against him for sexual discrimination against a male (Ex 45 para 84) | 10. No evidence | ||
| 11. He did not think that P was charged over the incident in which a girl had been barred for being too ugly (Ex 45 para 85) | 11. I believe I said that it was the bouncer who was convicted over the incident where a person was barred for being ugly and that P was the licensee of The Racquet Club (Ex 64 para 33) | ||
| 12. His mother had been sick with throat cancer and that at her lowest point of health P had set his wife up in business and had taken a number of agencies away from his mother's business (Ex 45 para 87) | 12. I recall telling D about the incident involving my mother set out above (Ex 64, paras 9 ‑ 15) (Ex 64 para 31): I do not recall telling D that Mrs Brown's business had taken a number of agencies from my mother's business. It did not happen (T536) |
| First Defendant | Robert Martin | Paul Summers | Kim Morrison |
| 13. When Summer's ex‑wife left his mother's business this had left his mother in a mess at a time when she could not attend to those matters due to ill health (Ex 45 para 87) | 13. I did not say this (T536) | ||
| 14. He believed P was the architect of (Summers' mother's) difficulties (Ex 45 para 87) | 14. I did not say this (T536) | ||
| Kim Morrison 15. I spoke to Morrison in June 97 (just before I wrote the letter) and again in Oct 97 (T231, 336) | 15. D rang me in June 97 seeking to verify information about P (Ex 63 par 4, T505) | ||
| 16. He told me he had a bitter falling out with P and P assaulted him and he had reported that to the police (T335) | 16. No evidence that prior to 3 Jul 97 Morrison told D about the alleged assault (T513‑518) | ||
| 17. Morrison told me he had had litigation with P arising during their partnership (Ex 45 par 136) | 17. There was litigation between Morrison and P concerning the conduct of their joint business affairs. It was settled out of court (T504) |
First Defendant | Robert Martin | Paul Summers | Kim Morrison |
| 18. He told me that: (a) He was aware that P was involved with a pyramid selling game when he and P shared an office in Colin Street, West Perth. (b) P was involved in pyramid selling with P's wife. He had seen a photograph in a newspaper of P going over a back fence of a house that was raided by authorities. (c) Morrison told me that P had been involved in a pyramid selling game with his wife and her relatives. He told me that P's wife's relatives had lost money in the scheme and P had to return the money to them. (d) When he and P shared an office in West Perth he was aware that P was involved in pyramid selling. Morrison told me that he had warned P not to do it because he may get into trouble. (Ex 45 par 135) | 18. I told D I knew that P participated in the Aeroplane Game. P spoke to me about his participation in the Aeroplane Game on a number of occasions. I warned P as a friend that he risked prosecution by such involvement. P told me that he was involved in the Aeroplane Game with a lady in London Court who originally introduced him to it. (Ex 63 par 6) |
NOTE: In his evidence the defendant included various matters which he said were reported to him by Bob Smith (Ex 45 par 79)
and Robert Maher (Ex 45 pars 67 ‑ 75). Neither Smith nor Maher were called to give evidence.
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BROWN -v- MARRON & ANOR [2001] WASC 100 (S)
CORAM: OWEN J
HEARD: 20-24, 27 & 28 MARCH 2000
DELIVERED : 20 APRIL 2001
SUPPLEMENTARY
DECISION :25 MARCH 2002
FILE NO/S: CIV 2038 of 1997
BETWEEN: MICHAEL BROWN
Plaintiff
AND
ERROL FRANCIS MARRON
First DefendantMARRON PROPERTY GROUP PTY LTD (ACN 009 398 583)
Second Defendant
Catchwords:
Costs - Turns on own facts
Legislation:
Nil
Result:
Orders made
Category: B
Representation:
Counsel:
Plaintiff: Mr R W Richardson
First Defendant : Mr M H Zilko
Second Defendant : Mr M H Zilko
Solicitors:
Plaintiff: Williams & Hughes
First Defendant : Simon Watson
Second Defendant : Simon Watson
Case(s) referred to in judgment(s):
Brown v Marron [2001] WASC 100
Case(s) also cited:
Australian Competition and Consumer Commission v Back on White Pty Ltd [2001] FCA 372
Australian Trade Commission v Disktravel [2000] FCA 62
Bullock v London General Omnibus Co [1907] 1 KB 264
Gallagher v CSR Ltd, unreported; SCt of WA (Ipp J); Library No 940163; 31 March 1994
Gladstone Park Shopping Centre Pty Ltd v Wills (1984) 6 FCR 496
Gould v Vaggelas (1984) 56 ALR 31
Hughes v Western Australian Cricket Association (Inc) (1986) ATPR 40748
Jelbarts Pty Ltd v McDonald [1919] VLR 478
Post v Colbert (1978) 20 SASR 62
Whyte v Seenikatty, unreported; DCt of WA (Jackson DCJ); Library No 4026; 23 May 1994
OWEN J: These reasons relate to the costs of the action that was the subject of judgment in Brown v Marron [2001] WASC 100.
I have had the advantage of written submissions from the plaintiff dated 27 February 2002 and 12 March 2002 and from the defendant dated 6 March 2002. The parties agree on the general principles that apply to a costs application of this type. However, they disagree on the application of those principles to the facts of the case.
The plaintiff was largely successful in the action against the first defendant. He asserted that the letter the subject of the action was defamatory and I found that it was. The plaintiff alleged that the letter bore a number of defamatory imputations. He established most, but not all, of them. The defendant asserted (among other things) that the imputations, if established, were true or that they were communicated on an occasion of qualified privilege. The defendant failed to establish those defences. However, there were some aspects of the defences on which succeeded. He satisfied me that one of the imputations was true and that the allegation of spite (as part of the retort to the defence of qualified privilege) had not been made out.
I accept that the several imputations are not separate causes of action. Nonetheless, in the circumstances of this case they are properly to be characterised as separate issues and success or failure can be reflected in a differential costs order.
The defendant also referred to a notice to admit facts dated 17 August 1999 which he delivered to the plaintiff. It should be apparent from pars 191 to 198 of the judgment that the only part of the notice on which the defendant could be said to have prevailed at trial was that in item (1). In my view that is not a sufficiently weighty matter to reduce the costs to which the plaintiff is otherwise entitled.
In a letter dated 20 March 2002 from the defendant's solicitors it is said that had the second defendant not been joined the first defendant would have continued, as he had done to that time, to act in person. I have no reason to doubt that statement. However, I do not think it should bear on the ultimate disposition of the costs problem.
As between the plaintiff and the first defendant I think the starting point is that the plaintiff was largely successful and should therefore have the costs of the action. However, I must also take into account that the defendant was successful on some identifiable issues which, in my view, extended the length of the trial. In the context of the case it would be very difficult to isolate the issues on which the defendant has been successful and award him the relevant costs. I think a preferable approach is to take a broad view of the relative time and effort attributable to those issues and to make a corresponding reduction in the costs to which the plaintiff is otherwise entitled. An approach of this type requires an intuitive assessment based on the way the trial was conducted. It is not an exact science. In my view, the best way to do it is to apply to the plaintiff's costs a percentage reduction based on that intuitive assessment.
I think the plaintiff ought to recover 80 per cent of the costs of the action as against the first defendant.
The plaintiff wholly failed against the second defendant. I accept, as the plaintiff has said in the written submissions, that the allegations against the second defendant did not take up a great deal of time. Nonetheless, they represented a discrete issue, based on the use by the first defendant of the second defendant’s letterhead and his method of operation in relation to the family company. The plaintiff wholly failed in this regard. In my view it is appropriate that the plaintiff pay the second defendant's costs of the action.
9
6
1