De Poi v Advertiser-News Weekend Publishing Co Pty Ltd - [2012] SADC 129

DISTRICT COURT OF SOUTH AUSTRALIA
(Civil: Interlocutory Application)
DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD
[2012] SADC 129
Judgment of His Honour Judge Stretton
12 October 2012
DEFAMATION - ACTIONS FOR DEFAMATION - PLEADING
Appeal and cross appeal against a decision of a Master to refuse applications to strike out parts of a statement of claim for defamation and a particular of justification pled in the defence, and an application to strike out a further particular of justification. The defendant published an article in the Sunday Mail newspaper in March 2010 alleging that the plaintiff whilst impersonating a member of the Family First party had handed out misleading how-to-vote cards preferencing the Labour Party in the form of her partner a Labour MP, and further alleged she had close connections with the ALP and had over several years sat as a WorkCover director whilst in receipt of substantial rehabilitation consulting work from WorkCover in circumstances which may have amounted to a conflict of interest.
Held: Appeal allowed in part. Further application refused. The inference pled that her electoral conduct was to preserve her ALP connections could not be inferred by the ordinary reasonable reader from the published article, and should accordingly be struck out. The inference pled that she did it to shore up good relations with the Labour Party to influence her future allocation of WorkCover consultancy work could not be inferred from the published article by the ordinary reasonable reader, and accordingly should also be struck out. The inference pled that she conducted dishonest electoral practices, consistently with her past preparedness to act in conflict of interest in her professional relationships with a view to financial benefit could be inferred from the published article by the ordinary reasonable reader, and accordingly the Master's refusal to strike it out was correct.
Both defence particulars of justification were properly relevant to the defence of justification, and accordingly the appeal against the Master's decision to refuse the application to strike out one particular is dismissed, and the new application to strike out the other particular is refused.
Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716; Lewis v Daily Telegraph Limited [1964] AC 234, referred to.

DE POI v ADVERTISER-NEWS WEEKEND PUBLISHING CO PTY LTD
[2012] SADC 129

This is an appeal and cross appeal from the decision of a Master refusing to strike out parts of defamation pleadings between the parties. There is also a new application that a particular of justification be struck out.
Background
The plaintiff, Sandra De Poi, is suing the defendant Advertiser-News Weekend Publishing Company Pty Ltd over an article it published in its 28 March 2010 edition of the Sunday Mail.
The article said that Ms De Poi, whilst wearing a “Family First” T-shirt, had handed out misleading how-to-vote cards, purporting to be from the Family First party, which gave preferences to the Labour candidate her partner Mr Leon Bignell MP. It said that, in fact, the Family First party had preferenced another party. The article went on to say that Ms De Poi had close connections with the Labour party, and was a director on the board of WorkCover. It said that while a director of WorkCover, her rehabilitation consultancy business had received nearly $10m in contracts from WorkCover since 2004. It then quotes several persons who comment on whether that activity amounted to a conflict of interest, and whether the conflict was adequately managed.
Ms De Poi claims that the article defamed her and has injured her reputation. The Advertiser claims the article did not defame her, attracts qualified privilege as a reasonable discussion of government and political matters, or was otherwise variously justified as fair reporting and/or true and/or fair comment and/or honest opinion in the public interest.
The issue on appeal
The issue is whether three of the imputations pled by Ms De Poi should be struck out on the basis that the article was not capable of conveying the asserted defamatory meanings.
I will deal with the cross appeal and the new application later in these reasons.
The law
A pleading will be struck out where the material published is not capable of giving rise to the defamatory implications alleged.
There is a plethora of judicial comment on how to apply this principle in a case at bar, much of which has been set out by the Master in his reasons, however I do no more than draw conveniently from the High Court in Favell v Queensland Newspapers Pty Ltd[1] to summarise the following.
[1] (2005) 79 ALJR 1716.
·     The test is what reasonable, ordinary persons could understand the complained words to mean.
·     The court will reject those meanings which can only emerge as the product of some strained, or forced, or some utterly unreasonable interpretation.
·     The court must keep in mind that the ordinary person does not live in an ivory tower, inhibited by rules of construction. That person can and does read between the lines in the light of their general knowledge and experience of worldly affairs.
·     Ordinary readers can draw implications more freely than lawyers, especially when they are derogatory.
·     It is the broad impression of the publication that has to be considered and not the meaning of each word under analysis.
·     It will depend on the degree of assurance with which the requisite conclusion is or can be arrived at.
·     Striking out should not be undertaken lightly, but with great caution.
·     The fact that reasonable minds may differ about whether or not the defamatory meaning is or can be arrived at is a strong perhaps insuperable reason for not exercising the discretion to strike out.
·     Once however the conclusion is firmly reached that the material is not capable of giving rise to the defamatory implication the pled implication should be struck out without delay.
The article
The article reads as follows;
Bignell partner’s $10m bonanza
The woman at the centre of Labor’s how-to-vote dodgy documents scandal is a WorkCover director whose consultancy has received nearly $10 million in contracts from WorkCover since 2004.
Sandra De Poi, the partner of Labor MP Leon Bignell, is also a director of the State Government’s affordable home finance lender, HomeStart. Ms De Poi was photographed by the Sunday Mail on polling day wearing a blue T-shirt emblazoned with “Family First” and handing out what appeared to be Family First how-to-vote cards.
However, the cards were actually Labor Party documents which directed voters to give their second preference to Mr Bignell, rather than to Liberal candidate Matthew Donovan, which Family First wanted.
Mr Bignell has been dating Ms De Poi for three years. She has impeccable Labor Party left faction contacts, having worked as campaign manager for leadership aspirant Jay Weatherill and being involved in fundraising for faction heavyweight Patrick Conlon.
Ms De Poi is managing director of De Poi Consultancy Services, a workplace injury management and occupational rehabilitation provider. She declined to speak to the Sunday Mail about her role in the apparent ruse.
The how-to-vote scandal – which Premier Mike Rann has vowed to outlaw after Labor was caught out – is not the first time she has been embroiled in controversy.
In 2008, Parliament’s Statutory Authorities Review Committee, which inquired into WorkCover Corporation, was told she had a conflict of interest as a board member whose company benefited from WorkCover contracts.
No formal steps were taken as a result of the enquiry.
Construction, Forestry, Mining and Energy Union officer Les Birch told the committee hearing Ms De Poi should be removed from the WorkCover board.
“How is it not a conflict of interest to have on the board a person who obtains around 12 per cent of all rehabilitation provider services in this state?” Mr Birch asked.
“The reality is ... that the proprietor of that organization has a very good relationship with politicians in the Labor Party,” he said. “I suggest that that is probably one of the main reasons she gets such a huge amount of work.”
The conflict of interest claim prompted WorkCover chairman Bruce Carter to write a letter to the Editor of The Advertiser defending Ms De Poi saying “from the outset, Ms De Poi has appropriately declared her potential conflict of interest. In accordance with usual board rules of conduct, Ms De Poi removes herself from all board deliberations and decisions where there is a conflict of interest (real or perceived) relating to her commercial interests”.
The latest WorkCover annual report has a section dedicated to defending Ms De Poi from claims of conflict of interest. It reads: “In relation to Ms De Poi, the companies in which she has an interest, De Poi Consulting Pty Ltd, have current contracts with WorkCoverSA for the provision of rehabilitation services as directed by WorkCoverSA’s claims agents. The value of the transactions during the year ended 30 June 2009 was $3,090,689 (2008: $2,739,941). The terms and conditions of the transactions were no more favourable than those available or which might reasonably be expected to be available, on similar transactions to non-board member related entities on an arm’s length basis.”
The De Poi Consulting website notes Ms De Poi has more than 17 years experience in the workers’ compensation area. She is a member of the Australian Rehabilitation Providers Association and the Australian Institute of Company Directors.
The Institute is aware of Ms De Poi’s role in the how-to-vote cards but declined to comment on whether, if it received any complaint, it would take action against her under its code of conduct, which notes:
THE member has an obligation, at all times, to comply with the spirit, as well as the letter, of the law and with the principles of this Code.
Electoral Commissioner Kay Mousley said the tactic of seemingly impersonating other parties does not technically breach the law, however it has been widely condemned by political commentators as being outside the spirit of the law.
The disputed inferences
The plaintiff has pled that in their natural and ordinary meaning, the article meant in relation to the plaintiff that:
5.1     …
5.2The plaintiff is prepared to take action to preserve her ALP connections by participating as one of the principals in dishonest electoral practices.
5.3The Plaintiff was one of the main instigators of dishonest electoral practices with the intention of shoring up her good relations with the ALP which has the capacity to influence the amount of work she gets through her WorkCover consultancy.
5.4     …
5.5The plaintiff was one of the main instigators of dishonest electoral practices, which conduct is consistent with her past history of a preparedness to place herself in a conflict of interest in her professional relationships with a view to financial benefit.
5.6     …
Discussion
The thrust of the article is that Me De Poi was and is closely connected to the political party in question, and personally connected to the MP contesting the seat where she was observed in a “Family First” T-shirt handing out the allegedly misleading how to vote cards.
The article claims that she has impeccable factional connections with the party, having worked as campaign manager and in fundraising for senior members of that party. The article claims that she had been the partner of the MP concerned for three years. It goes on to recount the fact that she is both a director of WorkCover, and had been in receipt of considerable consultancy work from it since 2004, and quotes divergent views about whether that amounted to a conflict of interest. It quotes a union officer speculating that her good relationship with politicians from the party “is probably one of the main reasons she gets such a huge amount of work”.
So, could the reasonable ordinary person understand the article to mean what the plaintiff has pled in paragraphs 5.2, 5.3 and 5.5 of the statement of claim?
Paragraph 5.2
I turn to paragraph 5.2, the thrust of which is that the article conveys the meaning that the plaintiff handed out the cards to preserve her ALP connections.
The article makes no such ostensible claim. The issue is whether as a whole, that implication could be drawn.
Doing the best the court can to place itself in the reasonable ordinary person’s shoes, I do not think the reasonable ordinary person could conclude that the article was asserting that the plaintiff was doing what she did to preserve her ALP connections.
The article purports to convey that she already had the strongest of connections, as reflected in her factional and ministerial contact, and in her personal relationship with the MP concerned. The benefits that the article asserts she had received over the time of and perhaps due to those connections, had been in place and allegedly working for years without the need of the alleged electoral conduct in recent times.
The suggestion that she is doing it to somehow preserve her political connections is beyond what the reasonable ordinary person could take from the article. Whilst such an interpretation could conceivably be drawn by some, it is beyond what the article could be interpreted by the reasonable ordinary person as saying.
Paragraph 5.3
I turn to paragraph 5.3, the thrust of which is that the article conveys the meaning that the plaintiff handed out the cards to shore up her good relations with the political party, which in turn could influence the amount of WorkCover rehabilitation consultancy work her firm would receive.
Again doing the best the court can do to place itself in the reasonable ordinary person’s shoes, I do not think that the reasonable ordinary person could conclude that the article was asserting that the reason she took the action concerned was to keep good relations with the political party to in turn influence the amount of WorkCover work her consulting firm would receive.
The conduct alleged is most likely to be viewed by the reasonable ordinary person as designed to get preferences for her partner the MP and assist his consequent election, by potentially deceiving Family First voters into thinking that Family First had officially preferenced him. It is far from clear that were such conduct to be widely known by a mainstream political party in whose aid it was employed, it would be approved of at all by that party, not only because of the objective deception allegedly involved, but also because of the obvious potential electoral flak and fallout that might clearly accompany the discovery of such deception. It would also require quite a leap to further conclude that WorkCover’s claims agents would ever get to know about it, let alone be impressed by it, let alone decide to allocate the plaintiff extra rehabilitation services work on account of it. It is also quite a leap to conclude, as adverted to in the Master’s reasons, that the conduct could be designed to secure re-election of the party through the re-election of her partner and thereby secure continued patronage as a WorkCover director and hence receipt of consultancy work, or that the reasonable reader could simply conflate that in a less sophisticated way to nevertheless arrive at the defamatory implication pled in paragraph 5.3.
I appreciate that the reasonable ordinary person may not have a close appreciation of the steps required for such influence to work, and may indeed see things in a much more general impressionistic way. But even allowing for that, the connection between the claimed conduct and the asserted benefit to flow to the plaintiff is too distant and speculative to be one that could reasonably be made from the article.
Paragraph 5.5
I turn to paragraph 5.5, the thrust of which is that the plaintiff’s conduct in allegedly dishonestly handing out the cards is consistent with her past history of preparedness to put herself in a position of conflict of interest in her professional relationships with a view to financial benefit.
Again doing the best the court can do to place itself in the reasonable ordinary person’s shoes, the article could convey to such a person that the plaintiff seemingly impersonated a member of the Family First party, to hand out misleading how to vote cards to potentially deceive Family First voters into thinking that Family First had officially preferenced her partner the MP, and could convey that such actions whilst technically within the law were outside its spirit and dishonest in the sense of not reflecting the truth. The article could also, in the court’s view, convey primarily by the juxtaposition of such allegations, that this was consistent with her alleged (and allegedly conflicted) role in both sitting as a WorkCover director and receiving a substantial amount of WorkCover rehabilitation consultancy work from WorkCover.
Whilst such connection is not made in so many words, indeed the two topics are simply linked with the words “The how-to-vote scandal – which Premier Mike Rann has vowed to outlaw after Labour was caught out – is not the first time she has been embroiled in controversy”, at the conclusion of the discussion about the alleged WorkCover conflict, the article returns to the topic of the how to vote card allegations.
In the court’s view, the reasonable ordinary person could form the “broad impression”[2] that the article was saying that her electoral conduct was dishonest, consistent with her earlier conflicted behaviour over WorkCover.
[2] In the sense articulated by Lord Devlin in Lewis v Daily Telegraph Limited [1964] AC 234 at 277, cited with approval by the High Court in Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 at 1720.
The cross-appeal and the further application to strike out
The plaintiff cross-appeals that the Master erred in refusing to strike out paragraph 9(i) of the current defence. That paragraph is a particular of justification pled by the Advertiser, claiming that voters were misled by the how-to-vote cards in question and complained to the Electoral Commission. The plaintiff suggests it be struck out on the basis that evidence that people were actually misled and complained is irrelevant to the pled issue of whether Ms De Poi “knowingly engaged in and placed herself at the centre of dishonest electoral practices.”
The plaintiff also applies to strike out paragraph 9(j) of the current defence. Paragraph 9(j) is a particular of justification claiming that the plaintiff knew that the how-to-vote cards were misleading and misrepresented the preferences of the Family First party.
The defamatory imputation relevant to the cross appeal and the further application to strike out
Paragraph 5.4 of the current statement of claim pleads that “The Plaintiff knowingly engaged in and placed herself at the centre of dishonest electoral practices;”.
The challenged particulars of justification
One of the defendant’s answers to this aspect of the plaintiff’s claim is a plea of justification. The defendant pleads that if the article had the alleged meaning, it was true or substantially true to say that Ms De Poi knowingly engaged in and placed herself at the centre of dishonest electoral practices. It particularizes that position by pleading a number of matters, including the plaintiff’s claimed handing out of the allegedly misleading cards on election day in her partners’s electorate while wearing a “Family First” T-shirt.
Particular 9(i) claims that “A number of voters were confused or misled by the said how-to-vote cards, and a number of voters made complaints to the Electoral Commission SA and/or ALP in relation to the same.”

Simply put, whether people were misled and to the degree whereby they complained to the Electoral Commission is potentially relevant to whether the conduct causing that reaction was misleading. Whether the conduct was misleading is a factor potentially relevant to whether it was dishonest.
Particular 9(j) claims that “The plaintiff knew that the how-to-vote cards were misleading and misrepresented the preferences of the Family First party.”
Simply put, knowledge that one’s actions are misleading about such a fundamental issue as who an elector thinks they are voting for, is plainly relevant to the honesty of such conduct.
For these reasons the application to strike out particular of justification 9(i) was rightly refused by the master and the application to strike out particular 9(j) should also be refused.
Conclusion
Paragraphs 5.2 and 5.3 of the Statement of Claim plead defamatory implications which an ordinary reasonable person could not draw from the published article, whereas that person could draw the defamatory implication pled in paragraph 5.5.
Both the challenged particulars of justification, 9(i) and 9(j), are potentially relevant to the defendant’s plea of justification on the basis of truth.
Accordingly the appeal against the decision of the master is allowed in part, and the application to this court in respect of paragraph 9(j) is dealt with, as reflected in the following orders.
Orders
1.     Paragraph 5.2 of the Statement of Claim is struck out.
2.     Paragraph 5.3 of the Statement of Claim is struck out.
3.The appeal against the master’s decision refusing to strike out paragraph 5.5 of the Statement of Claim is dismissed.
4.The appeal against the master’s decision not to strike out paragraph 9(i) of the Defence is dismissed.
5.     The application to strike out paragraph 9(j) of the Defence is refused.
I will hear the parties in relation to costs and any further or consequential orders.