Douglas v Macdonald
[2006] WASC 48
•17 MARCH 2006
DOUGLAS & ANOR -v- MACDONALD & ANOR [2006] WASC 48
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 48 | |
| 17/03/2006 | |||
| Case No: | CIV:1872/2004 | 14 NOVEMBER & 8 DECEMBER 2005 | |
| Coram: | MASTER NEWNES | 15/03/06 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Amendment allowed | ||
| B | |||
| PDF Version |
| Parties: | OLIVER DOUGLAS INTERIM ADVANCE CORPORATION PTY LTD TRADING AS AUSSIE CASH (ACN 094 743 843) SUSAN GAY MACDONALD SUSAN GAY MACDONALD AND MALCOLM MACDONALD TRADING AS AUSSIE CASH NORTHAM |
Catchwords: | Defamation Application to amend defence Adequacy of plea of qualified privilege Whether plea sufficiently identifies interest relied upon Turns on own facts |
Legislation: | Nil |
Case References: | Adam v Ward [1917] AC 309 Baird v Wallace-James (1916) 85 LJ PC 193 Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 Buckeridge v Walter [2006] WASCA 22 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 Hunt v Great Northern Railway [1891] 2 QB 189 Quartz Hill Co v Beal (1882) 20 Ch D 501 Shaw v Morgan (1885) 15 R 865 Sims v Wran [1984] 1 NSWLR 317 Toogood v Spyring (1834) 149 ER 1044 Andreyevich v Kosovich (1947) 47 SR (NSW) 357 Atkinson v Fitzwalter [1987] 1 All ER 483 Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183 Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961 Emmens v Pottle (1885) 16 QBD 354 Gerhold v Baker [1918] WN 368 Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32 Huntley v Ward (1859) 6 CBNS 514 Re Parton, Townsend v Parton (1882) 30 WR 287b Reynolds v Nationwide News Pty Ltd, unreported; SCt of WA; 18 May 2001 State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
INTERIM ADVANCE CORPORATION PTY LTD TRADING AS AUSSIE CASH (ACN 094 743 843)
Second Plaintiff
AND
SUSAN GAY MACDONALD
First Defendant
SUSAN GAY MACDONALD AND MALCOLM MACDONALD TRADING AS AUSSIE CASH NORTHAM
Second Defendant
Catchwords:
Defamation - Application to amend defence - Adequacy of plea of qualified privilege - Whether plea sufficiently identifies interest relied upon - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Amendment allowed
Category: B
Representation:
Counsel:
First Plaintiff : Ms C H Meighan
Second Plaintiff : Ms C H Meighan
First Defendant : Mr S J Lemonis
Second Defendant : Mr S J Lemonis
Solicitors:
First Plaintiff : Talbot & Olivier
Second Plaintiff : Talbot & Olivier
First Defendant : Fairweather & Lemonis
Second Defendant : Fairweather & Lemonis
Case(s) referred to in judgment(s):
Adam v Ward [1917] AC 309
Baird v Wallace-James (1916) 85 LJ PC 193
Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193
Buckeridge v Walter [2006] WASCA 22
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Hunt v Great Northern Railway [1891] 2 QB 189
Quartz Hill Co v Beal (1882) 20 Ch D 501
Shaw v Morgan (1885) 15 R 865
Sims v Wran [1984] 1 NSWLR 317
Toogood v Spyring (1834) 149 ER 1044
(Page 3)
Case(s) also cited:
Andreyevich v Kosovich (1947) 47 SR (NSW) 357
Atkinson v Fitzwalter [1987] 1 All ER 483
Bellino v Australian Broadcasting Corporation (1996) 185 CLR 183
Dunford Publicity Studios Ltd v News Media Ownership Ltd [1971] NZLR 961
Emmens v Pottle (1885) 16 QBD 354
Gerhold v Baker [1918] WN 368
Hooker Corp Ltd v Commonwealth (1986) 65 ACTR 32
Huntley v Ward (1859) 6 CBNS 514
Re Parton, Townsend v Parton (1882) 30 WR 287b
Reynolds v Nationwide News Pty Ltd, unreported; SCt of WA; 18 May 2001
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146
(Page 4)
1 MASTER NEWNES: This is an application by the defendants for leave to amend their defence. The application is opposed by the plaintiffs on the ground that the proposed amendments disclose no reasonable cause of defence or are embarrassing.
2 Following the hearing of the application, the defendants proposed further amendments to the defence which had the effect of omitting the defence of innocent dissemination and pleading a defence of unintentional publication. The plaintiffs did not seek to pursue their objection to that part of the proposed amended defence in light of those further amendments. The only issue that remains is the proposed plea of qualified privilege.
3 The first plaintiff is a director of the second plaintiff, which is the franchisor of a business known as Aussie Cash. The defendants are husband and wife and carry on business as franchisees of the second plaintiff, under the business name "Aussie Cash Northam".
4 The plaintiffs allege in par 5 of the statement of claim that between January and June 2004 one or the other or both defendants published to a third person a document (the "Letter") containing allegations of dishonest and unlawful conduct by the plaintiffs. The contents of the Letter are pleaded in par 4 of the statement of claim.
5 In answer to the allegation in par 5, the defendants plead as follows:
"5. As to paragraph 5 of the Statement of Claim, the Defendants say that:
(a) in or about January/February 2004, they received an anonymous letter addressed to Mr & Mrs McDonnell from a friend (the 'Letter');
(b) the Letter contained the words set out at paragraph 4 of the Amended Statement of Claim;
(c) Ms Helen Carr is and was at all material times a franchisee of the business trading as Aussie Cash in Geraldton;
(d) in or about June/July 2004, the Defendants met with Ms Carr for the common purpose of discussing the operation of their respective franchises;
- (e) at the conclusion of the meeting, one or both of the Defendants gave to Ms Carr a bundle of copied press clippings in relation to the Plaintiffs;
(f) unknowingly and by reasonable mistake,unintentionally and without any want of care on their part, the bundle of documents included a copy of the letter;
(g) the Defendants had no ground for supposing that the Letter was included in the bundle of documents;
(h) by reason of the matters set out in this paragraph, the provision of the Letter was by means of innocent dissemination was an unintentional publication that was not due to any want of care on their part;
(i) alternatively to paragraph (h), the provision by one or both of the Defendants of the Letter to the Plaintiff [sic, Ms Carr] was an occasion of qualified privilege by reason of the following matters:
(i) the Defendants and Ms Carr were fellow franchisees of the Aussie Cash business and therefore had a common interest in publications on that subject matter;
(ii) the letter was provided to Ms Carr at the conclusion of a meeting held to discuss the Aussie Cash business and their respective franchises;
(iii) the subject matter of the Letter pertains to the conduct of the First Plaintiff in relation to Aussie Cash and is therefore connected to the common interest of the Defendants and Ms Carr as franchisees of Aussie Cash.
(j) otherwise, the Defendants deny each and every allegation in paragraph 5 of the Statement of Claim."
(Page 6)
6 The marking up in par 5(f) and (h) indicates the further amendments proposed by the defendants' counsel, to which I referred earlier.
7 The plaintiffs' objection to the plea of qualified privilege in par 5(i) is that it does not sufficiently identify the nature and extent of the common interest upon which the claim of qualified privilege is founded. It was submitted that it is insufficient to say that the subject matter of the Letter pertains to the conduct of the first plaintiff in relation to Aussie Cash, as that was capable of embracing any conduct of the first plaintiff in connection with Aussie Cash down to the most mundane and unexceptional; that is, it could relate to any matter connected with the Aussie Cash business, whether relevant to the franchisees or not. Counsel referred to the judgment of McHugh J in Bashford v Information Australia (Newsletters) Pty Ltd (2004) 204 ALR 193 at [58], [60] where his Honour said:
"A defendant who claims that the occasion was privileged must show that 'both the givers and the receivers of the defamatory information had a special and reciprocal interest in its subject matter'…
...
… the practical working of the doctrine of qualified privilege requires that the occasion be defined concretely and precisely. That ordinarily requires the interest of the recipient to be defined first, and to be defined concretely and precisely, although sometimes it is necessary first to define the duty in that way. Unless the interest is so defined, the issues of duty, occasion, relevance and malice cannot be determined - at all events correctly."
8 It was argued on behalf of the defendants that the subject matter of the Letter was the conduct of the first plaintiff in relation to the second plaintiff, the franchisor, and that was sufficiently connected to the operation of the franchises conducted by the defendants and Ms Carr. The matter of common interest is the Aussie Cash franchises operated by them.
9 It is apparent that the plea contains a typographical error in that it refers to the provision of the Letter to the plaintiff. Presumably it is intended to plead that it was provided to Ms Carr.
(Page 7)
10 The classic statement of the principle to be applied in determining whether the occasion of publication of matter was one of qualified privilege is the statement of Parke B in Toogood v Spyring(1834) 149 ER 1044 at 1049 - 50; 1 Cr M & R 181at 193:
"In general, an action lies for the malicious publication of statements which are false in fact, and injurious to the character of another (within the well-known limits as to verbal slander), and the law considers such publication as malicious, unless it is fairly made by a person in the discharge of some public or private duty, whether legal or moral, or in the conduct of his own affairs, in matters where his interest is concerned. In such cases, the occasion prevents the inference of malice, which the law draws from unauthorized communications, and affords a qualified defence depending upon the absence of actual malice. If fairly warranted by any reasonable occasion or exigency, and honestly made, such communications are protected for the common convenience and welfare of society; and the law has not restricted the right to make them within any narrow limits."
11 As Lord Atkinson stressed in Adam v Ward [1917] AC 309 at 334, reciprocity of duty or interest is essential:
"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. This reciprocity is essential."
12 The position where the person making the communication and the recipient have an interest in it was expressed in the following way in Hunt v Great Northern Railway [1891] 2 QB 189, in the well-known passage from the judgment of Lord Esher MR (at 191):
"A privileged occasion arises if the communication is of such a nature that it could fairly be said that those who made it had an interest in making such a communication, and those to whom it was made had a corresponding interest in having it made to them."
13 The question of whether the occasion is privileged is a question of law for the Judge at trial; where there are disputed questions of fact upon which the question depends they must first be determined by the tribunal of fact - the jury, if there is one or the Judge, if there is not. The question
(Page 8)
- of whether the occasion is privileged turns on whether the defendant had an interest in publishing, or a duty to publish, the words complained of to the particular recipient.
14 In Baird v Wallace-James(1916) 85 LJ PC 193, Earl Loreburn said (at 198):
"In considering the question whether the occasion was an occasion of privilege the Court will regard the alleged libel, and will examine by whom it was published, to whom it was published, when, why, and in what circumstances it was published, and will see whether these things establish a relation between the parties which gives a social or moral right or duty; and the consideration of these things may involve the consideration of questions of public policy."
15 It is trite law that the occasions of qualified privilege can never be catalogued or stated exhaustively. But it is clear that a business or commercial interest or relationship may be sufficient, so that "if a statement is made … in the reasonable attention to a man's own business and affairs which gives him legitimate cause to write or speak to his neighbour, the occasion displaces the presumption of malice … and he is only answerable if malice be shown to have existed in fact": Shaw v Morgan (1885) 15 R 865, per Lord Young at 870.
16 Any continuing commercial transaction or association is likely to give rise to a common interest in it to the parties concerned. Thus it is clear, for example, that shareholders of a company have a common interest in the affairs of the company, as do the officers of the company: Quartz Hill Co v Beal (1882) 20 Ch D 501 (CA). A number of other examples are cited in Gatley on Libel and Slander 10th ed at par 10.46.
17 It is therefore clearly arguable that franchisees of a business have a common interest in the franchise business. The question is whether par 5 of the defence sufficiently pleads the interest relied upon for the plea that the publication of the Letter to Ms Carr occurred on a privileged occasion.
18 In Sims v Wran [1984] 1 NSWLR 317, Hunt J considered what was necessary for a plea of qualified privilege at common law. His Honour was there concerned with a rule that specifically required the defendant to subscribe to his pleading particulars of the facts and matters upon which the defendant relied to establish that the matter complained of was published under qualified privilege. His Honour said (at 326 - 327):
(Page 9)
- "If the defendant claims that the publication took place upon an occasion of qualified privilege at common law, the particulars which are to be subscribed to his pleading should be sufficient to enable the plaintiff (and the trial judge) to identify the nature of the occasion of qualified privilege relied upon … but the plaintiff is not entitled to have identified in the particulars the specific right or duty to publish, or the specific interests of those to whom the publication was made in receiving the information conveyed, for which the defendant contends … [I]t is not helpful, having regard to the objects for which particulars are required, to order a defendant to state what are really conclusions argumentatively drawn from the essential facts and matters which have already been specified by way of particulars in accordance with the rules".
19 It is pleaded in the proposed amended defence that the defendants and Ms Carr were fellow franchisees of the Aussie Cash business, of which the second plaintiff was the franchisor, and therefore had a common interest in publications on the subject of the Aussie Cash business. It is pleaded that the contents of the Letter (which are not in dispute and are set out in par 4 of the statement of claim) pertained to the conduct of the first plaintiff in relation to the Aussie Cash business. It is common ground that the first plaintiff is a director of the second plaintiff. It is alleged that the Letter was published to Ms Carr at the conclusion of a meeting held to discuss the Aussie Cash business and their respective franchises. The conduct of the first plaintiff in relation to the Aussie Cash business is said therefore to be connected to the interests of the defendants and Ms Carr as franchisees of the Aussie Cash business.
20 The plea may not be a model of a plea of qualified privilege but in my view it is a sufficient plea to enable the plaintiffs to identify the grounds relied upon for the plea that the publication of the Letter to Ms Carr was on an occasion of qualified privilege. In that context it is important to bear in mind what was said in Buckeridge v Walter [2006] WASCA 22, where the Court of Appeal (at [4], [23]) endorsed the comments of Kirby J in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52, to the effect that excessive refinement of pleading issues is to be discouraged and courts should discourage, or minimise, the impediment to a fair trial presented by the process of "trial by interlocutory ordeal", which is especially prevalent in defamation proceedings.
21 It follows from what I have said that I do not accept theplaintiffs' complaint thatthe proposed pleadoes not sufficiently identify the interest
(Page 10)
- upon which the claim of qualified privilege is founded. The question of whether the plaintiffs are entitled to obtain upon request any further particulars of the plea is a matter to be determined if that issue arises.
22 Accordingly, I would allow the amendment to the defence in terms of the minute.
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