Capolingua v Nationwide News Pty Ltd

[2016] WASC 156

CAPOLINGUA -v- NATIONWIDE NEWS PTY LTD [2016] WASC 156

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2016] WASC 156
Case No:	CIV:1334/2015	Heard:	27 NOVEMBER 2015
Coram:	LE MIERE J	Delivered:	24/05/16
No of pages:	16	Judgment Part:	1 of 1
Result:	Paragraph 10 of the defence struck out Plaintiff's application otherwise dismissed
Category:	B
PDF Version

Parties:	ROSANNA CAPOLINGUA NATIONWIDE NEWS PTY LTD
Catchwords:	Defamation Strike out application Polly Peck defence Imputation likely to confuse Where it may prejudice, embarrass or delay a fair trial Turns on own facts Defamation Strike out Statutory privilege Common law privilege Inappropriate to determine defence in strike out application
Legislation:	Defamation Act 2005 (NSW), s 39 Defamation Act 2005 (WA), s 28, s 30, s 31 Tobacco Products Control Act 2006 (WA)
Case References:	Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70 Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652 John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291 Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 Leighton v Garnham [No 2] [2013] WASC 335 McCormick v John Fairfax &Sons Ltd (1989) NSWLR 485 Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 Setka v Abbott [2012] VSC 534

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : CAPOLINGUA -v- NATIONWIDE NEWS PTY LTD [2016] WASC 156 CORAM : LE MIERE J HEARD : 27 NOVEMBER 2015 DELIVERED : 24 MAY 2016 FILE NO/S : CIV 1334 of 2015 BETWEEN : ROSANNA CAPOLINGUA

Plaintiff

AND

NATIONWIDE NEWS PTY LTD
Defendant

Catchwords:

Defamation - Strike out application - Polly Peck defence - Imputation likely to confuse - Where it may prejudice, embarrass or delay a fair trial - Turns on own facts

Defamation - Strike out - Statutory privilege - Common law privilege - Inappropriate to determine defence in strike out application

Legislation:

Defamation Act 2005 (NSW), s 39

Defamation Act 2005 (WA), s 28, s 30, s 31
Tobacco Products Control Act 2006 (WA)

Result:

Paragraph 10 of the defence struck out

Plaintiff's application otherwise dismissed

Category: B

Representation:

Counsel:

Plaintiff : Mr M L Bennett
Defendant : Mr J D Maclaurin

Solicitors:

Plaintiff : Bennett + Co
Defendant : M + K Lawyers

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

Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70
Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652
John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Leighton v Garnham [No 2] [2013] WASC 335
McCormick v John Fairfax &Sons Ltd (1989) NSWLR 485
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460
Setka v Abbott [2012] VSC 534

LE MIERE J:

Summary

1 The plaintiff claims that the defendant media corporation published an article defamatory of her on its website. She claims an injunction and damages. The plaintiff has applied to strike out parts of the defendant's defence which plead a Polly Peck defence, a defence of statutory qualified privilege and a common law qualified privilege defence. For the reasons which follow par 10 of the defence which pleads the Polly Peck defences will be struck out and the plaintiff's application will be otherwise dismissed.

The pleadings

2 The plaintiff is a medical practitioner and was until 24 February 2014 the chairperson of the Western Australian Health Promotion Foundation (Healthway). The defendant is the publisher of The Australian Newspaper and maintains The Australian website (the Website). On 19 February 2015 an article under the headline 'WA Anti-Smoking Agency Cashed in on $220,000 Worth of Perks' was published to users of the Website. The plaintiff says that the article is defamatory of her.

3 The defendant denies that the article was defamatory and conveyed the meanings pleaded by the plaintiff. In the alternative, the defendant says the article was a fair summary of a public document within the meaning of s 28 of the Defamation Act 2005 (WA) and in the alternative was made upon an occasion of qualified privilege under s 30 of the Defamation Act and upon an occasion of qualified privilege at common law.

4 The defendant further pleads that, alternatively, if the article conveyed defamatory meanings it relevantly conveyed the meanings pleaded in pars 10.1 and 10.2 of the defence and each of those meanings was true or substantially true (the Polly Peck defence). In the further alternative the defendant says that if the article was defamatory of the plaintiff in respect of the meanings pleaded in par 6.4 of the statement of claim then the common law defence of fair comment or the statutory defence pursuant to s 31(2) of the Defamation Act is a complete defence.

5 The plaintiff has applied to strike out:

(a) the Polly Peck defence at par 10 of the defence;

(b) the statutory qualified privilege defence under s 30 of the Defamation Act at par 8 of the defence; and

(c) the common law qualified privilege defence at par 9 of the defence

on the ground that they disclose no reasonable defence.

The article

6 The article is accompanied by a photograph of the plaintiff captioned 'Healthway Chairwoman Rossana Capolingua was the second biggest user of VIP tickets obtained by the agency's executives. Source: News Limited'. The article is relatively brief. I will set it out in full:

WA anti-smoking agency cashed in on $220,000 worth of perks

The Australian / February 19, 2015 5:04pm

Andrew Burrell

WA Chief Reporter

Perth

The Western Australian government's controversial anti-smoking agency Healthway is embroiled in a corporate perks scandal after an investigation found that its chairwoman and senior executives wrongfully obtained VIP tickets for family and friends to attend sporting and arts events as part of the group's sponsorship deals. A damning report released today by the WA Public Sector Commission found Healthway's top brass enjoyed tickets and hospitality worth $220,000, which was 'inconsistent with the obligation to be scrupulous in the use of public resources'. The tickets were obtained through Healthway's sponsorship agreements with bodies including the Perth Wildcats, Perth Glory, WA Cricket Association and concert promoter Mellen Events. Healthway chairwoman Rosanna Capolingua, a former federal president of the Australian Medical Association, was the second biggest user of the VIP tickets behind executive chairman David Malone, who resigned last week.

The results of the investigation will increase pressure on the Barnett government to overhaul Healthway after it emerged last year that WA Opera had cancelled a planned performance of Carmen because the famous opera depicts people smoking.

The WA Opera has a $400,000 sponsorship deal with Healthway, which explicitly warns all arts organisations it funds that they cannot portray smoking on stage. The PSC report, which was tabled in state parliament, found there were insufficient controls around Healthway's sponsorship contracts to ensure that hospitality resources were used solely for a public purpose.

'In that environment, Healthway officers … derived a private benefit in the form of tickets or seats for their family in corporate boxes', the report said.

The report also found that tension between board members, and between some board members and Mr Malone, had distracted the board from tis integrity and fiduciary oversight responsibilities'.

Plaintiff's imputations

7 The plaintiff says the article gives rise to imputations that the plaintiff:

(1) utilised her position as Chairperson of Healthway to deliberately and wrongfully obtain VIP tickets to sporting and art events from Healthway-sponsored organisations for her family and friends;

(2) as Chairperson of Healthway, caused Healthway to grossly misuse public resources by funding sporting and art events on the basis that VIP tickets would be made available to the board and executive director of Healthway inter alia the plaintiff, for the use of the plaintiff and her family and friends;

(3) utilised her position as Chairperson of Healthway to personally cash in on a large portion of $220,000 worth of perks to which she was not legitimately entitled; and

(4) had been damned by an investigation conducted by the Public Sector Commission as having engaged in wrongful conduct in her capacity as Chairperson of Healthway.

Defendant's imputations

8 The defendant's imputations pleaded at par 10 of its defence are:

10.1 that the plaintiff had, in her position as Chairperson of Healthway and inconsistently with her obligation to be scrupulous in the use of public resources, wrongfully obtained VIP tickets to sporting and arts events from Healthway-sponsored organisations for her family and friends;

10.2 that the plaintiff had, in her position as Chairperson of Healthway and inconsistently with her obligation to be scrupulous in the use of public resources, derived a private benefit from a share of $220,000 worth of perks to which she was not legitimately entitled including VIP tickets of which she was the second biggest user.

The plaintiff says defendant's imputations are ambiguous

9 The plaintiff says the use of the phrase 'inconsistently with her obligation to be scrupulous in the use of public resources' in the defendant's imputations pleaded at pars 10.1 and 10.2 of its defence is weasely and vague in that the phrase has a variety of possible meanings which results in ambiguous imputations. The plaintiff says it is not clear what the defendant means by the phrase. Is the plaintiff charged with having a reckless disregard to public resources? Is she charged with negligently failing to meet her obligation to be scrupulous in the use of public resources? Or is she charged with deliberately ignoring her obligations so as to take advantage of her position in order to obtain VIP tickets?

Defence imputation 10.1

10 The defendant says that the phrase 'inconsistently with her obligation to be scrupulous in the use of public resources' specifies with precision particulars of that aspect of the plaintiff's acts that contribute to the defamatory meaning. The phrase refers to the standard to which the plaintiff is subject that informs and gives content to such defamatory meaning. The defendant says that it would arguably make the ordinary reasonable member of the community think the less of a person who holds the position of Healthway Chairwoman that in her position as a chairperson of a public body she had derived private benefits to which she was not legitimately entitled, inconsistently with her obligations to be scrupulous in the use of public resources. Further, the defendant says that the phrase must be viewed in the context of the whole imputation.

11 The phrase appears in the article complained of. However, that does not justify the use of the phrase in the imputation complained of. The defendant must plead the defamatory meanings which it claims were borne by the article as precisely as possible because properly pleaded meanings are key to the determination and proper conduct of all aspects of defamation litigation. The important point is to identify what the plaintiff is said to have done, not the opinion expressed by the defendant as to the quality of the act.

12 In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Gleeson CJ said that the degree of specificity of pleading required in a particular case is a matter of judgment the solution to which will usually be found in considerations of practical justice rather than philology. Gleeson CJ further said:

The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances (137).

In Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 Hunt AJA explained that merely pleading the words of the matter complained of as the imputation for which the party contends - where those words do not adequately distil the act or condition attributed to the plaintiff - does not comply with the requirements of the rules of pleading. Hunt AJA said:

Justification for pleading the imputations in the words of the matter complained of is sought in a statement by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation (at 137), that the requirement placed by r 11(2) on the plaintiff to specify the act or condition which he claims was attributed to him cannot go beyond doing the best that can reasonably be done in the circumstances. It is said that, as the plaintiff does not know the precise sense the defendant intended to convey, the most he can reasonably do in the circumstances is to use the defendant’s own words in his imputations. This is a complete misinterpretation as to what the Chief Justice said in Drummoyne.

Gleeson CJ said (at 137) that the requirement that the plaintiff specify the act or condition he claims was attributed to him raises questions of degree, and that the satisfaction of that requirement depends on the circumstances of the particular case, as the attribution of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. Therefore, the Chief Justice said, the requirement placed on the plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances, and the appropriate degree of specificity needs to be related to the nature and content of the defamatory matter. Those statements do not justify this new method of pleading imputations.

To start with, the issue is not what the defendant intended to convey; the issue is how the ordinary reasonable reader interpreted what the defendant said. What the Chief Justice made clear when he commenced his remarks on this subject was that the plaintiff must specify the act or condition 'which he claims was attributed to him' and he concluded his remarks by accepting the test formulated at first instance (already quoted in para [124] supra) that the issue which has to be decided in the particular case is 'whether there is likely to be confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends'. The plaintiff is required to specify the act or condition which he contends was understood by the ordinary reasonable reader as being attributed to him by the matter complained of. Unless his imputation identifies that act or condition, the defendant has no way of knowing whether he can plead various defences to the publication. He is entitled to have that identification made before pleading. The trial judge who has to decide the defences pleaded is also entitled to have identified the act or condition found by the jury to have been understood by the ordinary reasonable reader as being attributed to the plaintiff by the matter complained of [127 - 129].

13 The important point in this case is to identify what the plaintiff is said to have done or failed to do. The phrase 'and inconsistently with her obligation to be scrupulous in the use of public resources' is ambiguous or uncertain. 'Scrupulous' has two relevant meanings. One is showing a strict regard for what is right and being very concerned to avoid doing wrong. The other is to be diligent, thorough and extremely attentive to details, minutely careful, precise or exact. The phrase in question has the same two meanings. When the phrase is used as part of the imputation that in her position the plaintiff wrongfully obtained VIP tickets, it is unclear whether the imputation is that the plaintiff obtained the tickets wrongfully in that she acted without showing a strict regard for what is right on the one hand or that she failed to carry out her position with sufficient diligence and care to ensure that she did not obtain VIP tickets wrongfully.

14 The defendant complains that its imputation is no more uncertain than the plaintiff's imputation pleaded at par 6.1 of the statement of claim. There are two answers to that submission. First, I am not dealing with an application to strike out the plaintiff's imputation. Secondly, the addition of the phrase 'and inconsistently with her obligation to be scrupulous in the use of public resources' to the imputation that the plaintiff had wrongfully obtained the tickets renders the imputation uncertain and embarrassing. The adverb 'wrongfully' in pleading imputations should be avoided unless the context in which it is used makes clear its intended meaning and the degree of wrongfulness involved: McCormick v John Fairfax &Sons Ltd (1989) NSWLR 485, 494 (Hunt J). In the plaintiff's imputation, the word 'wrongfully' is qualified or elaborated upon by the word 'deliberately'. The defendant's imputation qualifies or elaborates upon the notion that the plaintiff obtained the tickets 'wrongfully' by adding that she did so 'inconsistently with her obligation to be scrupulous in the use of public resources' which, as I have said, is relevantly ambiguous. What is the plaintiff said to have done? Is it that she deliberately obtained the tickets wrongfully, in which case the imputation does not differ from the plaintiff's. Or is it that the plaintiff wrongfully obtained the tickets recklessly, negligently, carelessly or without sufficient diligence?

15 The imputation pleaded at par 10.1 of the defence is uncertain and likely to cause confusion. It should be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action.

Defence imputation 10.2

16 The plaintiff says that the imputation pleaded at par 10.2 of the defence should be struck out on the basis that it does not attribute any act or condition to the plaintiff and accordingly is not defamatory. The plaintiff says that as an alternative to the imputation pleaded at par 10.1, the defendant does not plead an imputation to the effect that the plaintiff deliberately, negligently or recklessly derived a private benefit to which she was not legitimately entitled; rather the imputation appears to be that the benefit simply fell into her lap. The plaintiff says that if it pleads something else, it overlaps or repeats the imputation in par 10.1. The plaintiff says that an imputation that the plaintiff derived a private benefit to which she was not legitimately entitled is not defamatory and should be struck out.

17 The defendant says that the plaintiff's contentions concerning the alternative imputation at par 10.2 of the defence fail to appreciate that words may be defamatory of the plaintiff in their business, profession or trade capacity without reflecting upon the character of the plaintiff. That is of course, correct. However, that does not mean that the defendant is not required to identify what the defendant is said to have done or what condition or characteristics are attributed to the plaintiff which injure her in her business or profession. The defendant referred to John Fairfax Publications Pty Ltd v Gacic [2007] HCA 28; (2007) 230 CLR 291; Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460 and Hardie v The Herald and Weekly Times Pty Ltd [2015] VSC 364. The imputations with which the appeal in Gacic was concerned were that the respondents sell unpalatable food at their restaurant, Coco Roco, and the respondents provide some bad service at Coco Roco. In holding that the imputations were defamatory of the respondents Gleeson CJ and Crennan J explained that to say of a restaurateur of a purportedly high class restaurant that they sold unpalatable food injures that person in their business or calling and because of that is defamatory. Similarly, to say that the respondents provided some bad service is defamatory. It should be noted that each imputation identified what the respondents were said to have done - the respondents sell unpalatable food and provide some bad service.

18 In Radio 2UE Sydney Pty Ltd v Chesterton the imputations in question each identified what the plaintiff was said to have done or a condition or characteristic attributed to the plaintiff - see the imputations set out at [14]. In Hardie v The Herald and Weekly Times Pty Ltd, Whelan JA held at [98] that the test to be applied in all but exceptional cases is whether the imputation would be likely to make an ordinary reasonable person think less of the plaintiff. Whelan JA said nothing to the effect that an imputation is not required to identify what the plaintiff is said to have done or some condition or characteristic attributed to her.

19 The imputation pleaded at par 10.2 of the defence fails to identify what the plaintiff is said to have done or some condition or characteristic attributed to her. The imputation says that the plaintiff derived a private benefit from a share of perks to which she was not legitimately entitled. It is essential to know whether it is said that the plaintiff did so deliberately, recklessly, negligently, carelessly or without any fault. The inclusion in the imputation of the words 'and inconsistently with her obligation to be scrupulous in the use of public resources' might mean that the plaintiff failed to exercise diligence and attention to detail to ensure that it did not happen or it might connote some more culpable conduct or failure on the part of the plaintiff. The imputation is likely to cause confusion at each stage of the proceeding. It should be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action.

The imputation pleaded at par 10.2 is not defamatory

20 The plaintiff says that the imputation pleaded at par 10.2 of the defence should be struck out on the basis that it does not attribute any act or condition to the plaintiff and accordingly is not defamatory. I am unable to determine whether or not the imputation is defamatory because its meaning is uncertain. The imputation is capable of varying degrees of seriousness or not being defamatory at all.

Statutory qualified privilege

21 In par 8 of the defence, the defendant pleads that the publication of the article was made on an occasion of qualified privilege under s 30 of the Defamation Act. Section 30(1) provides that there is a defence of qualified privilege for the publication of defamatory matter to a person (the recipient) if the defendant proves that: -

(a) the recipient has an interest or apparent interest in having information on some subject;

(b) the matter is published to the recipient in the course of giving to the recipient information on that subject; and

(c) the conduct of the defendant in publishing that matter is reasonable in the circumstances.

The plaintiff says that the requirements of pars (a) and (c) are not met.

Interest in having information on the subject

22 The plaintiff says that the article was published on the defendant's website. The defendant does not plead that it was available only to subscribers to the website and, accordingly, the article was capable of being published to the world at large and was in fact published to all users of the website who downloaded it. There is no presumption of law that there has been publication in respect of an internet publication. However, where a platform of facts is proved by the plaintiff, an inference of substantial publication can be drawn. The plaintiff says that the court ought to take judicial notice of the fact that the defendant is a national and respected mass media news publisher, being the publisher of The Australian newspaper and maintainer of the website. The article remained on the website for several months. The plaintiff says that those matters are a sufficient platform of facts for the court to draw an inference that the article was published to readers outside Western Australia, if not internationally.

23 The plaintiff says that readers outside Western Australia did not have the requisite interest pursuant to s 30(1) of the Defamation Act. Healthway is a Western Australian agency founded pursuant to the Tobacco Products Control Act 2006 (WA) and funded by the Western Australian government. The plaintiff says that only Western Australian readers had the requisite interest in a publication regarding the outcome of the investigation undertaken by the Public Sector Commission into Healthway. The defendant does not identify in its defence a basis upon which any follower of the website who elected to view a news story about the subject matter disclosed in the title to the article, 'WA anti-smoking agency cashed in on $220,000 worth of perks', would have the relevant interest in the information conveyed. The headline is sensational and designed to capture the attention of any reader, not just readers from Western Australia who may have an interest in how government funds are spent.

24 The defendant says that the admission in its defence goes no further than that the article was published on its website. No evidence has yet been adduced as to how many users of the website downloaded and read the article or where these users were located. These matters are said to be matters for trial and cannot be resolved or even inferred for the purposes of this application. Further, the defendant says that it is not unarguable that persons outside Western Australia would be relevantly interested in matters concerning the public functions of a person in the situation of the plaintiff; such matters are arguably of interest to a recipient, regardless of the State in which the body is established. The defendant gives the example of reports concerning like bodies interstate. It is not unarguable to say that publications concerning interstate bodies but involving the same types of issues would be of interest to a local constituency.

25 The defendant further says that it is arguable that an occasion of qualified privilege can exist where there is publication in a format that, whilst publication to disinterested persons cannot be completely discounted, the manner of publication is such that it is the most effective and practical way of publication to interested parties can be likely achieved. The defendant says that this is a developing area of law, or is capable of development, and hence not the proper subject of a strike-out application.

26 In my opinion, this is not a suitable matter for a strike-out application. There is no presumption in law that a plaintiff in an internet defamation case is able to rely on to prove publication: Al Amoudi v Brisard [2006] EWHC 1062 (QB); [2006] 3 All ER 294 [37]. Whether the court is able or willing to infer that such a publication has occurred, and if so the extent of that publication and the place where it has been downloaded, will depend on all the circumstances. It is open to the court to infer that the article was downloaded by a substantial number of people who are not ordinarily residents of Western Australia. However, whether the inference should be drawn and the extent of publication that should be inferred are matters for trial and not matters to be inferred for the purposes of a strike-out application. See my discussion of this issue in Leighton v Garnham [No 2] [2013] WASC 335 [30] - [37].

27 The interest that may justify the statutory qualified privilege is wider than under common law qualified privilege. The requirement of reasonableness in the circumstances replaces the need to prove reciprocity and the privilege/duty created by the occasion as at common law. The requisite interest must be something more than a matter of curiosity, gossip or merely news; it may be direct or indirect but must come under the protection of the privilege. The court must hear all the evidence since interest is a question of fact. It is inappropriate to summarily determine whether or not the persons to whom matter was published have a relevant interest in the defamatory matter except in the clearest of cases. This is not such a case.

Reasonableness of publication

28 The plaintiff says that the matters relied upon do not support the claim that the publication was reasonable in the circumstances. The defendant pleads in par 8(d) of its defence that the conduct of the defendant in publishing the article was reasonable in the circumstances. The circumstances are set out in par (d)(i) - (viii). Those circumstances go to why publication of an article about the tabling of the Public Sector Commission report may have been reasonable, not why publication of the defamatory matter was reasonable. I will not strike out the pleading on that basis. The pleading may reasonably be understood to be a plea that the conduct of the defendant in publishing the matter defamatory of the plaintiff was reasonable in the circumstances.

29 The plaintiff says that the defamatory imputations carried by the article are very serious. The defendant does not plead that it distinguished between suspicions, allegations and proven facts; rather, the defendant only claims to have 'distinguished what were findings of an investigation and report, and identified the report and the body that produced it'. However, the first paragraph of the article states that an investigation found Healthway's 'chairwoman and senior executives wrongfully obtained VIP tickets for family and friends to attend sporting and arts events as part of the group's sponsorship deals'. The word 'wrongfully' is not used in the report; nor does the report conclude that the plaintiff or any Healthway officer deliberately set out to obtain a private benefit. A reader of the article who had not read the report would take the quoted sentence as a statement of fact, not an allegation or opinion. Similarly, the fourth paragraph of the article states that the plaintiff 'was the second biggest user of the VIP tickets behind executive chairman David Malone'. This is a statement of fact which is not supported by the report. In my opinion, these are properly matters for trial and not for the summary determination of the defendant's defence of statutory qualified privilege.

30 The plaintiff further says that the defendant does not plead that the matter published contained the substance of the plaintiff's side of the story; nor does the defendant plead that it attempted to obtain and publish a response from the plaintiff. The defendant pleads that the report itself contained a document signed by the plaintiff headed 'Healthway Response to Findings and Recommendations'. However, the response to the report itself is entirely different to a response to the article and is not sufficient to bring the publication of the defamatory matter into the realm of what is reasonable. Any response the plaintiff made to the full report in context is not the same as a response to an article that purports to highlight key findings and would not have been read by all readers of the article.

31 The defendant says that a determination of whether the conduct of the defendant in publishing the article was reasonable is not one that is properly resolved in a strike-out application. In Hockey v Fairfax Media Publications Pty Ltd [2015] FCA 652, White J said at [225] that s 30(3) of the Defamation Act 2005 (NSW), which is in the same terms as s 30(3) of the Defamation Act 2005 (WA), sets out the matters which a court may take into account when deciding the defendant's conduct is reasonable, the list is not exhaustive. White J said at [228] that the matters listed in s 30(3) are not to be regarded as 'a series of hurdles to be negotiated by a publisher before it can successfully rely on qualified privilege' and it is to be remembered that reasonableness 'is not a concept that can be subjected to inflexible categorisation'.

32 Whether the conduct of the defendant in publishing the matter is reasonable in the circumstances is a matter for trial and should not be determined on a strike-out application. Section 30 of the Defamation Act does not provide that the conduct of the defendant in publishing the matter is not reasonable, and therefore the defence of qualified privilege is not available, if the publication did not contain the substance of the complainant's side of the story and a reasonable attempt was not made by the publisher to obtain and publish a response from that person.

33 Section 30(1) provides that there is a defence of qualified privilege if the defendant proves, amongst other things, that the conduct of the defendant in publishing the defamatory matter is reasonable in the circumstances. Section 30(3) provides that in determining for the purposes of s 30(1) whether the conduct of the defendant in publishing matter about a person is reasonable in the circumstances, the court may take into account the 10 factors then listed. The defendant does not have to prove each factor in the non-exhaustive list. The court may give different weight to each of the factors depending on the circumstances of the case. Some factors may not apply at all in some cases. The defendant might prove that the publication was reasonable notwithstanding that it has not proved either limb of s 30(3)(h). For example, in Enders v Erbas & Associates Pty Ltd [2014] NSWCA 70, the Court of Appeal of New South Wales found that contrary to the primary judge's finding that s 30(3)(h) was made out by the respondents, it was not, but nevertheless upheld the primary judge's finding that the respondents' conduct in publishing the defamatory matter was reasonable in the circumstances.

34 It is not appropriate to determine on a strike-out application whether the defence of statutory qualified privilege must fail because of a failure by the defendant to publish the plaintiff's side of the story or to make a reasonable attempt to obtain and publish a response from the plaintiff.

Lange defence - common law privilege

35 The defendant pleads at par 9 of its defence that the publication of the article was made on an occasion of qualified privilege at common law. The defendant pleads that the article was a communication that concerned government and political matters and that the conduct of the defendant was reasonable in the circumstances.

36 The plaintiff does not dispute that the article was a communication concerning government and political matters in the relevant sense. However, the plaintiff contends that the public interest in the article is limited to Western Australian readers. The plaintiff says that an inference should be drawn that the article was published to readers outside Western Australia and that such readers did not have the requisite interest in its subject-matter.

37 The defendant says that it has not been established whether the article was read by anyone outside Western Australia. Furthermore, if the article was read by persons outside Western Australia, the defendant says there is no authority to support the proposition that a publication regarding a government and political matter in respect of Western Australia is only of interest to people currently situated in and accessing the publication in Western Australia. The defendant says it is at least arguable that readers of the article based outside Western Australia have the requisite interest. Further, persons might access the publication online from outside Western Australia who might be entitled to vote in Western Australia.

38 The matters raised by the plaintiff are matters to be determined at trial, not summarily. The extent of publication and whether or not, and the extent to which, the article was read by persons outside Western Australia are not matters to be inferred at a strike-out application. Except in the clearest of cases the court should hear all the evidence before determining whether readers have the requisite interest in the publication because interest involves questions of fact. Furthermore, the boundaries of the common law qualified privilege defence are yet to be delineated: Setka v Abbott [2012] VSC 534 [33] (Beach J).

39 In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, the High Court said:

Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond (574). (emphasis added)

40 Whether the making of a publication was reasonable should be determined when all of the evidence has been heard and not determined summarily on a strike-out application.

Conclusion

41 Paragraph 10 of the defence will be struck out. The plaintiff's application will otherwise be dismissed.