Carr v Lipscombe
[2006] WASC 142
CARR -v- LIPSCOMBE [2006] WASC 142
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 142 | |
| Case No: | CIV:1655/2004 | 26 JUNE 2006 | |
| Coram: | MASTER NEWNES | 21/07/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | JOHN MALCOLM CARR DONALD RAY LIPSCOMBE |
Catchwords: | Defamation Application to strike out defence of qualified privilege Words complained of published by father to his children Whether capable of being occasion of qualified privilege Turns on own facts |
Legislation: | Nil |
Case References: | Adam v Ward [1917] AC 309 Adams v Coleridge (1884) 1 TLR 84 Baird v Wallace-James (1916) 85 LJPC 193 Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13 Howe v Lees (1910) 11 CLR 361 Kearns v General Council of the Bar [2003] 1 WLR 1357 London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15 Macintosh v Dun [1908] AC 390 Moffatt v Coates (1906) 44 SLR 20 Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd [1963] NSWR 1446 Ronald v Harper (1910) 11 CLR 63 Stuart v Bell [1891] 2 QB 341 Toogood v Spyring (1834) 1 Cr M & R 181 Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185 Brown v Marron [2001] WASC 100 Guise v Kouvelis (1947) 74 CLR 102 Jenoure v Delmege [1891] AC 73 Watt v Longsdon [1930] 1 KB 130 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DONALD RAY LIPSCOMBE
Defendant
Catchwords:
Defamation - Application to strike out defence of qualified privilege - Words complained of published by father to his children - Whether capable of being occasion of qualified privilege - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Mr C S Gough
Defendant : Mr R I Viner AO QC
Solicitors:
Plaintiff : Minter Ellison
Defendant : Norton & Smailes
Case(s) referred to in judgment(s):
Adam v Ward [1917] AC 309
Adams v Coleridge (1884) 1 TLR 84
Baird v Wallace-James (1916) 85 LJPC 193
Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13
Howe v Lees (1910) 11 CLR 361
Kearns v General Council of the Bar [2003] 1 WLR 1357
London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15
Macintosh v Dun [1908] AC 390
Moffatt v Coates (1906) 44 SLR 20
Motel Holdings Ltd v Bulletin Newspaper Co Pty Ltd [1963] NSWR 1446
Ronald v Harper (1910) 11 CLR 63
Stuart v Bell [1891] 2 QB 341
Toogood v Spyring (1834) 1 Cr M & R 181
Case(s) also cited:
Australian Consolidated Press Ltd v Uren (1966) 117 CLR 185
Brown v Marron [2001] WASC 100
Guise v Kouvelis (1947) 74 CLR 102
Jenoure v Delmege [1891] AC 73
Watt v Longsdon [1930] 1 KB 130
(Page 3)
1 MASTER NEWNES: This is an application by the plaintiff to strike out the defendant's plea of qualified privilege as embarrassing on the ground that no material facts are pleaded in support of that defence. In fact, as I understood it, the plaintiff's primary complaint is that the matters contained in the particulars of the plea are not capable of establishing that the words complained of were published on a privileged occasion.
The background
2 It appears from the pleadings that the action has its genesis in an agreement between Leageon Pty Ltd, a company associated with the plaintiff, and Pex Publications Pty Ltd, a company associated with the defendant, by which Leageon Pty Ltd agreed to purchase the business of Oil and Gas Industry newsletter publisher carried on by the defendant and Pex Publications Pty Ltd.
3 Following completion of the agreement in about July 2003, the plaintiff entered into possession of the business and the defendant worked as a consultant to it. A dispute arose between the plaintiff and the defendant in the course of which the plaintiff claimed that the defendant had deceived him in connection with the sale.
4 It is alleged in the statement of claim that, on 10 February 2005, the defendant sent to each of his six children an email concerning the sale of the business and making a number of statements about the plaintiff in connection with it. The plaintiff says that those statements are defamatory of him and he has brought the present proceedings for damages for libel.
The plea of qualified privilege
5 The defendant, among other things, has pleaded that the publication of the email to his children was an occasion of qualified privilege. The particulars of that plea refer to the sale of the agreement and state that the defendant was then aged 70 years, he had successfully undertaken the business for some 40 years, that before and about the time of the publication of the email disputes had arisen between the plaintiff and the defendant in respect of payments and obligations under the various agreements relating to the sale, and that on 4 February 2004 the plaintiff, by his solicitors, made unfounded allegations about the defendant in respect of the sale, allegations which had caused the defendant great distress and anxiety, adversely affecting his health and well-being.
6 In the plea of qualified privilege it is alleged that the defendant and each of his children had a common and corresponding interest in the
(Page 4)
- subject matter of the email and the defendant was under a moral or social duty to publish the email to his children and they had a like duty or interest to receive it, or that the defendant published the email in the legitimate protection of his own interests.
The plaintiff's submissions
7 It was submitted on behalf of the plaintiff that no relevant facts are pleaded of any common or corresponding interest of the defendant and his adult children that could give rise to a privileged occasion. There was no allegation that the defendant honestly believed it was his duty to send the email to his children and there was no allegation that the defendant had reasonable grounds for believing what he wrote in the email. The facts alleged are not capable of giving rise to any duty or interest that the defendant had to send, and the recipients had to receive, the email.
The defendant's submissions
8 Senior Counsel for the defendant argued that there was a community of interest between the defendant and his children concerning the conduct of the plaintiff. Accusations had been made by the plaintiff against the defendant, and the defendant was defending or protecting his personal interest in his relations with his children. Counsel argued that the defence squarely pleaded the material facts relating to the relevant matters of fact and law to be decided by the trial Judge; namely the circumstances of the case, the situation of the parties, the relations of all concerned, the events leading up to and surrounding the publication. Whether or not the facts were made out and, if made out, constituted an occasion of privilege were matters for trial.
9 Counsel referred to the judgment of Lord Loreburn in Baird v Wallace-James (1916) 85 LJPC 193, where his Lordship said that where a defence of qualified privilege is pleaded the Court "will examine by whom it was published, to whom it was published, when, why and what circumstances it was published and see whether these things establish a relation between the parties which gives social or moral right or duty".
10 Senior Counsel for the defendant said that, in the circumstances, the defendant had felt that he must disclose to his children the communications from the plaintiff's solicitors in which the allegations were made and his response to them.
11 I should say that it was not in dispute that the children of the defendant who received the email are all adults. It was also not in dispute
(Page 5)
- for the purposes of this application that the allegations made by the plaintiff against the defendant had not been published by the plaintiff to the defendant's children or to anyone apart from the defendant.
Is the plea defective?
12 One of the classic descriptions of an occasion of qualified privilege is contained in the judgment of Lord Atkinson in Adam v Ward [1917] AC 309 (at 334) as follows:
"A privileged occasion is … an occasion where the person who makes a communication has an interest, or a duty, legal, social, or moral, to make it to the person to whom it is made, and the person to whom it is so made has a corresponding interest or duty to receive it. Here reciprocity is essential."
13 An earlier classic statement to similar effect is to be found in Toogood v Spyring (1834) 1 Cr M & R 181 at 193.
14 The basis of the defence of qualified privilege was described by Lord Macnaghten in Macintosh v Dun [1908] AC 390, in the following way (at 399):
"The underlying principle is 'the common convenience and welfare of society' – not the convenience of individuals or the convenience of a class but, to use the words of Earl CJ in Whiteley v Adams 'the general interest of society'."
15 In the present case, it is alleged that the defendant is a 70 year old man who had suffered great stress and anxiety, adversely affecting his health and well-being, as a result of the allegations made by the plaintiff. As I understood the defendant's case, it is contended that by reason of the close family relationship he had a social or moral duty or interest to inform his children of matters adversely affecting his health and well-being and they had a legitimate interest to be informed of them. That is, in this context, the defendant had a social or moral obligation to inform his children of the plaintiff's allegations which were affecting his health and well-being and he had a duty or interest to inform his children, and they had a legitimate interest in being informed, of his response to the allegations.
16 The existence of a close family relationship has been recognised in some situations as establishing the requisite duty or interest relationship.
(Page 6)
- In Gatley on Libel and Slander, 10th ed, at par 14.39, the learned authors say:
"The fact that a close family relationship exists between A and B may make it the special duty of A to inform B of facts which he knows about C, in order that B's interest may be protected, and any such information, though volunteered, will be privileged, provided it is given bona fide and with the honest purpose of protecting B's interest."
18 It is, of course, necessary to establish not simply that a close family relationship existed but that, by reason of that relationship, the necessary reciprocity of duty or interest existed.
19 I was not referred to any case in which a plea of the present kind had been considered and it was common ground that there appeared to be no reported case where a defence of the specific nature pleaded in this action had been considered. The fact that a claim of qualified privilege of the nature advanced by this defendant appears not to have been the subject of previous judicial consideration is not, of course, determinative, one way or the other. In London Association for Protection of Trade v Greenlands Ltd [1916] 2 AC 15, Lord Buckmaster said (at 22 – 23):
"The circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. New arrangements of business, even new habits of life, may create unexpected combinations of circumstances, which, although they differ from well known instances of privileged occasion, may none the less fall within the plain yet flexible language of the definition [of the circumstances in which a publication is privileged]."
20 In my view, the Court should therefore be slow to conclude on an interlocutory application of this sort that the particular circumstances relied upon for a plea of qualified privilege are not capable of establishing a privileged occasion. There are obviously cases where the circumstances pleaded are plainly incapable of making out an occasion of privilege and
(Page 7)
- other cases where they are equally plainly capable of doing so. But by reason of the flexible nature of the definition of qualified privilege and the infinite variety of circumstances that may arise from time to time, there will inevitably be many cases which do not clearly fall into one or other of those categories. For the purposes of this application, the question is whether the circumstances pleaded are arguably capable of establishing an occasion of privilege. I consider that they are.
21 It has been suggested that little purpose is served by attempting to fit any particular case into one or other of the duty/interest or common interest categories referred to in the classic statements of principle: Kearns v General Council of the Bar [2003] 1 WLR 1357, per Keene LJ at 1373. What is important is the relationship between the maker of the statement and the recipient, and the reason for reciprocity.
22 However, it is clear that in the context of a plea of qualified privilege a "duty" includes a moral or social duty. What is capable of constituting a social or moral duty is not confined to fixed or closed categories and cannot be exhaustively stated. In Stuart v Bell [1891] 2 QB 341 at 350, Lindley LJ said:
"I take moral duty to mean a duty recognised by English people of ordinary intelligence and moral principles, but at the same time not a duty enforceable by legal proceedings whether civil or criminal."
23 In Baird v Wallace-James (supra), Lord Loreburn observed (at 164) that whether there is a relationship between the parties which give a social or moral duty to publish the words complained of to the recipient may involve the consideration of questions of public policy.
24 The learned authors of Gatley on Libel and Slander (supra), note at par 14.10 that:
"… there is no sure or unfailing criterion of what does or does not constitute a moral or social duty; indeed, as was pointed out by Earle CJ in Whiteley v Adams, 'Judges … have all felt great difficulty in defining what kind of social or moral duty will afford a justification.' "
25 The learned authors of Duncan & Neill on Defamation, 2nd ed, suggest that the standard to be applied is, what would people of ordinary intelligence and moral principle have done in the circumstances?
(Page 8)
26 The nature of an "interest" is equally not confined to fixed or closed categories. In Howe v Lees (1910) 11 CLR 361, Higgins J said:
"The word 'interest' is not used in any technical sense. It is used in the broadest popular sense, as when we say that a man is 'interested' in knowing a fact - not interested in it as a matter of gossip or curiosity, but as a matter of substance apart from its mere quality as news."
27 In the same case, O'Connor J said:
"So long as the interest is of so tangible a nature that for the common convenience and welfare of society it is expedient to protect it, it will come within the rule."
28 It is against that background that I turn to the case pleaded by the defendant.
29 I consider it is arguable that it is in the general interest of society that a communication of this nature to these recipients is on an occasion of privilege. A close family relationship may make it the social or moral duty of a parent, or afford a parent an interest, to inform their children of matters affecting the parent's health and well-being, and the interest of the children to know of such matters. Communications in relation to a commercial dispute which affects a parent's health or well-being may arguably fall within that category. In normal circumstances no legal duty will arise, but there may be a social or moral duty or interest arising out of the natural love and affection between a parent and child which is sufficient to establish a privileged occasion. Whether or not the circumstances in fact establish an occasion of privilege is, of course, a matter for trial.
30 I do not, therefore, consider that the plaintiff's primary attack on the plea of qualified privilege is made out.
31 The plaintiff also contended that the plea was deficient because the defendant did not plead that he sent the email to his children in good faith and that he honestly believed it was his duty to do so to protect his children. In my view, those are not matters that are necessary for a plea of qualified privilege.
32 As to the first, in relation to a defence of qualified privilege there is a presumption of bona fides on the part of the defendant: Ronald v Harper (1910) 11 CLR 63 per Griffith CJ at 74; see also Motel Holdings Ltd v
(Page 9)
- Bulletin Newspaper Co Pty Ltd [1963] NSWR 1446; Bates v Queensland Newspapers Pty Ltd [1996] 1 Qd R 13. If the plaintiff contends that the occasion was misused by the defendant, that is a matter to be raised by the plaintiff by way of reply.
33 As to the second, the question of whether or not the defendant had a relevant duty does not depend upon his belief as to the existence of that duty, but whether he was right or mistaken in that belief: Stuart v Bell (supra) at 349. Whether or not the defendant acted under a sense of duty may, however, be important on the question of malice, if that is raised by the plaintiff.
34 It was also contended by the plaintiff that the plea was embarrassing because it was not clear whether the privilege is claimed in relation to one or all of the imputations pleaded by the plaintiff. With respect, that is to misconceive the nature of the defence of qualified privilege. The defence is not pleaded to specific imputations. The defence is that the occasion of the publication of the matter complained of is protected by qualified privilege.
35 I would dismiss the application.
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