Dowling v Myalup Community Association (Inc)
[2005] WASC 118
DOWLING -v- MYALUP COMMUNITY ASSOCIATION (INC) & ORS [2005] WASC 118
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 118 | |
| Case No: | CIV:1858/2003 | 30 MAY 2005 | |
| Coram: | MASTER NEWNES | 8/06/05 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application to amend allowed in part | ||
| B | |||
| PDF Version |
| Parties: | CHRISTOPHER DOWLING MYALUP COMMUNITY ASSOCIATION (INC) PETER BROWN STEPHEN SANDERS ETHEL SANDERS MICHAEL McGUIGAN ELAINE FRANCE AMANDA BROWN ELISSA McGUIGAN GRAEME McPHERSON |
Catchwords: | Defamation Application to amend statement of claim Whether imputations capable of being conveyed Whether embarrassing Whether particulars relied on are relevant to claim for aggravated damages Turns on own facts |
Legislation: | Nil |
Case References: | Berezovsky v Forbes Inc [2001] EWCA Civ 1211 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gumina v Williams (No 1) (1990) 3 WAR 342 Jones v Skelton [1963] 1 WLR 1362 Lewis v Daily Telegraph Ltd [1964] AC 234 Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Taylor v Jecks (1993) 10 WAR 309 Triggell v Pheeney (1951) 82 CLR 497 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; 143 FLR 180; NSWCA Atkinson v Fitzwater [1987] 1 All ER 483 Australian Liquor, Hospitality & Miscellaneous Workers Union (WA Branch) v Mulligan (1996) 15 WAR 385 Birmingham v West Australian Newspapers Ltd [1999] WASC 19 Bruce v Odhams Press Ltd [1936] 1 KB 697 Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81675 Composite Buyers Ltd v Clarke [1988] 2 Qd R 682 Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86 David Syme & Co v Canavan (1918) 25 CLR 234 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Heytesbury Holdings Pty Ltd v The City of Subiaco (1998) 19 WAR 440 Jones v E Hulton & Co [1909] 2 KB 444 Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332 Morgan v Odhams Press Ltd [1971] 1 WLR 1239 Sinclair v James [1894] 3 Ch 554 Singleton v Hudson (1998) 20 WAR 191 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Smith v Littlemore (1996) 15 WAR 289 Vitale v Bednall [2000] WASC 207 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MYALUP COMMUNITY ASSOCIATION (INC)
First Defendant
PETER BROWN
STEPHEN SANDERS
ETHEL SANDERS
MICHAEL McGUIGAN
ELAINE FRANCE
AMANDA BROWN
ELISSA McGUIGAN
GRAEME McPHERSON
Second Defendants
Catchwords:
Defamation - Application to amend statement of claim - Whether imputations capable of being conveyed - Whether embarrassing - Whether particulars relied on are relevant to claim for aggravated damages - Turns on own facts
(Page 2)
Legislation:
Nil
Result:
Application to amend allowed in part
Category: B
Representation:
Counsel:
Plaintiff : Mr R W Bower
First Defendant : Ms C Galati
Second Defendants : Ms C Galati
Solicitors:
Plaintiff : Corser & Corser
First Defendant : Edwards Wallace
Second Defendants : Edwards Wallace
Case(s) referred to in judgment(s):
Berezovsky v Forbes Inc [2001] EWCA Civ 1211
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Lewis v Daily Telegraph Ltd [1964] AC 234
Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Taylor v Jecks (1993) 10 WAR 309
Triggell v Pheeney (1951) 82 CLR 497
(Page 3)
Case(s) also cited:
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158; 143 FLR 180; NSWCA
Atkinson v Fitzwater [1987] 1 All ER 483
Australian Liquor, Hospitality & Miscellaneous Workers Union (WA Branch) v Mulligan (1996) 15 WAR 385
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Bruce v Odhams Press Ltd [1936] 1 KB 697
Channel Seven Sydney Pty Ltd v Parras (2002) Aust Torts Reports 81675
Composite Buyers Ltd v Clarke [1988] 2 Qd R 682
Consolidated Trust Co Ltd v Browne (1948) 49 SR(NSW) 86
David Syme & Co v Canavan (1918) 25 CLR 234
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Heytesbury Holdings Pty Ltd v The City of Subiaco (1998) 19 WAR 440
Jones v E Hulton & Co [1909] 2 KB 444
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Morgan v Odhams Press Ltd [1971] 1 WLR 1239
Sinclair v James [1894] 3 Ch 554
Singleton v Hudson (1998) 20 WAR 191
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Smith v Littlemore (1996) 15 WAR 289
Vitale v Bednall [2000] WASC 207
(Page 4)
1 MASTER NEWNES: This is an application by the plaintiff to re-amend the statement of claim. The application is opposed by the defendants, essentially on the grounds that the imputations pleaded in the minute of re-amended statement of claim are not reasonably capable of being conveyed by the words complained of, and that the particulars of the claim for aggravated damages do not support that claim.
2 The plaintiff pleads that he was at all material times a resident of the town of Myalup. The first defendant is an incorporated association and the second defendants were members of the committee of the association.
3 The plaintiff pleads that the second defendants were present at a meeting of the first defendant, held on or about 10 September 2002, at which a letter addressed to the plaintiff was read to, and unanimously approved by, among others, the second defendants. It is alleged that, on or about 4 October 2002, the defendants caused the letter to be placed on a public notice board at the front of the Myalup Community Store, which is prominently located in the town of Myalup and frequented by many residents of Myalup.
4 The relevant contents of the letter are pleaded in par 7 of the minute as follows:
"Welcome to the Myalup Community. We like to think that Myalup is one of the most picturesque, aesthetically pleasing & friendly communities in the State. As long term residents we are always pleased to invite new residents to become involved [sic in] our relaxed lifestyle: fishing & other beach activities, social events, volunteer service for the community, relaxing, ... etc. Myalup only has a small population with a very limited number of sites available for residential construction, inherently making it somewhat of an exclusive enclave. The one hundred or so permanent residents are quite proud of the thousands of hours of volunteer labour and the countless dollars, mostly hard earned, that have been contributed toward improving the town site. Even today this continues, with extensive planting programmes & beautification works being just part of the everyday life in Myalup.
I'm sure that you can appreciate their efforts; obviously you would recognize the beauty & the tranquillity of the town, otherwise you would not have bothered purchasing a residence here. We would invite you at this time to join with the rest of
(Page 5)
- the community in our collective efforts towards the beautification of the town. If you choose not to participate, then so be it; the choice & offer is there awaiting your response. Should you decide not to include yourself, then all we ask is that you respect the efforts & hard work of others. A prime example of this would be the apparent destruction of Banksia odournata shrubs on public lands adjacent to Myalup Beach Rd. These trees were privately purchased, planted, watered weekly, weeded & generally maintained by two of our oldest and longest-term residents. Their desire was to replace native trees missing as a result of clearing. This particular species is important as a food source, both directly for bird species, and for the myriad of insects that feed upon the trees & are then in turn preyed upon. Obviously the wanton destruction of these trees is not only environmental vandalism, but is highly disrespectful of those efforts of those who are prepared to donate generously for the enjoyment & benefit of all. The residents of Myalup are quite tolerant and friendly: they are quite able & ready to lend assistance & support to anyone, and are ever tolerate of the varying nature of people's needs and interests. As I am sure you will have already noticed, with the majority of residents, if you need advice or assistance, all you need do is ask.
Please allow me this opportunity to apologise for the delay in welcoming you, on behalf of the Myalup Community Association, to Myalup. Once again, we invite you to participate in the fullest in all this unique place has to offer.
Regards
Peter Brown
B.App.Sci., Dip.Ed., Dip.App.Sci.(OP)
President
Myalup Community Association
Mobile Phone: 0419-965-950 [Emphasis added]"
(Page 6)
- "(a) was personally responsible for the destruction of Banksia odournata shrubs on public land adjacent to Myalup Beach Road
(b) was personally responsible for the wanton destruction of these trees
(c) was an environmental vandal and;
(d) was disrespectful of those who had donated their time for the enjoyment and benefit of all in the Myalup community."
6 The principles to be applied on an application of this sort are well established. An application to amend a pleading will not be allowed if the pleading as amended is liable to be struck out as disclosing no reasonable cause of action or as embarrassing. Imputations will be struck out at this stage if they are plainly incapable of being conveyed by the words complained of: Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319.In determining whether words are capable of bearing the imputation alleged, there is, with respect, much to be said for the view that that is "an exercise in generosity, not parsimony": Berezovsky v Forbes Inc [2001] EWCA Civ 1211 at [16].
7 The test to be applied in determining whether the defamatory imputations alleged are capable of being conveyed by the words complained of was discussed is the well-known passage from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371:
"In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital and Counties Bank v George Henty & Sons [1882] 7 AC 741, 745 Lord Selborne LC said:
'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'
The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect
(Page 7)
- meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1963] 2 WLR 1063; [1963] 2 All ER 151 HL(E). The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense."
8 The person to whom it is alleged the words were spoken will be assumed to be a reasonable person, not unusually suspicious or unusually naive, nor avid for scandal. In Lewis v Daily Telegraph Ltd [1964] AC 234 Lord Reid said, at 258:
"There is no doubt that in actions for libel the question is what the words would convey to the ordinary man: it is not one of construction in the legal sense. The ordinary man does not live in an ivory tower and he is not inhibited by knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of world affairs."
9 There is, however, an important distinction to be drawn between a person's understanding of a publication and judgments or conclusions which that person may arrive at as a result of his or her own beliefs and prejudices: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J at 301.
10 It is also well established that an imputation must specify the precise act or condition the plaintiff alleges was asserted of, or attributed to, him by the words complained of: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678; Taylor v Jecks (supra).
11 Counsel for the defendants argued that a reasonable reader not avid for scandal would not understand the words complained of to bear any of the meanings alleged in par 9. The letter was simply a letter of welcome to the plaintiff from the first defendant and only a reader of unduly
(Page 8)
- suspicious mind would understand it to be anything more than that. A reasonable reader would not understand the reference to the destruction of the Banksia odournata shrubs as suggesting that the plaintiff was responsible for their destruction.
12 It is, of course, necessary to read the words complained of without the emphasis which has been added in the pleading. Nevertheless, when so read, I consider it is arguable that the words are capable of conveying to a reasonable reader the meanings alleged. The fact that the letter is couched in terms of a letter of welcome is, of course, by no means decisive. Defamatory words may take many, and not always the most obvious, forms. As Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137:
"Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person 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. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is the person is said or suggested to have done wrong."
13 It might be added that it is also well known, for example, that an apparently extravagant panegyric may contain a defamatory sting as effectively as the most vitriolic criticism, as famous literary instances illustrate. Accordingly, the fact that the words complained of are contained within what appears to be a letter of welcome does not preclude the possibility that they may contain a defamatory sting.
14 Whether the words complained of in this case convey the imputations pleaded, is, in my view, a matter for trial. It is alleged that the defendants caused the letter, addressed to the plaintiff, to be placed on a public notice board at the front of a prominent local community store. In the context of what appears to be a letter of welcome in the most general terms, specific and relatively extensive reference is made to a particular incident involving the destruction of certain flora. I consider it is arguable that a reasonable reader who was not unusually suspicious or avid for scandal, but who has the normal capacity to read between the
(Page 9)
- lines, would understand the words complained of to bear the imputations alleged.
15 The defendants also complained that the imputation pleaded in par 9(b) was repetitive of the imputation pleaded in par 9(a). I do not accept that. There is, in my view, a clear distinction between being personally responsible for the destruction of flora and being personally responsible for the wanton destruction of it.
16 Counsel for the defendants then raised a further complaint that the imputation in par 9(b) was so vague as to be embarrassing, in that it is not clear what is meant by the imputation that the plaintiff was "personally responsible" for the wanton destruction; that is, for instance, whether it was done by his own hand or whether by causing or inciting others to do it. The imputation did not, therefore, clearly specify the act or condition which the plaintiff claims was attributed to him.
17 I do not consider that, in the context of the words complained of, the imputation is objectionable. The requirement of specificity in an imputation was discussed by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation(supra), where his Honour said (at 137):
"The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say the statement which he says was made about him … is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case the judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology … Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant, their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter … The requirement upon a plaintiff cannot go beyond doing the best that can be reasonably done in the circumstances … As I have indicated, the question is ordinarily one to be resolved by considerations of practical
(Page 10)
- justice in the circumstances of a particular case, rather than considerations of the possibility of linguistic refinement. I agree with the test formulated by Hunt J in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155 where his Honour said:
'… 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.' "
19 A similar complaint was made in respect of par 9(d). Counsel for the defendants submitted that it was not clear what the imputation meant.
20 The fact that the terms of the imputation are drawn from the words of the letter itself is not, of course, enough to demonstrate that the pleaded imputation is beyond attack. It is the meaning alleged to have been conveyed by the words, rather than the words themselves, which it is important to have precisely defined in the imputation: Monte v Mirror Newspapers (supra). What, therefore, must be clear from the pleading is what meaning the plaintiff contends was conveyed to a reasonable reader by the words complained of. But, as Gleeson CJ observed in the passage to which I have referred, the nature of the words complained of is a relevant consideration in determining the degree of specificity with which an imputation must be pleaded. In the circumstances of the present case, I do not consider the imputation pleaded in par 9(d) to be insufficiently clear and I would not refuse the amendment on that basis.
21 The defendants also objected to par 11 of the minute, which is in the following terms:
"The Plaintiff will rely on the following facts and matters to support his claim for aggravated damages.
Particulars of Aggravation of Damages
a) The words set out in paragraph 7 hereof were published in a place and manner calculated to publicly and maliciously denigrate the Plaintiff in the Myalup commuity.
(Page 11)
- b) The Defendants knew or ought to have known that the meanings set out in paragraph 9 hereof imputed by the words set out in paragraph 7 hereof were unjustifiable.
c) An inference arises from the matters pleaded in paragraphs 1 to 10 hereof that the Defendants published the words in the knowledge that they were libelous or with reckless disregard as to whether or not they were libelous.
d) The Defendants' conduct in refusing to apologise to the Plaintiff is improper and lacking in good faith.
e) The Defendants' consistent refusal to apologise despite the Plaintiff's repeated requests for an apology has increased the hurt to the Plaintiff's feelings by causing him distress and embarrassment and has heightened the damage to his reputation."
22 On the hearing of the application, counsel for the plaintiff foreshadowed that the plaintiff would omit the heading "Particulars of Aggravation of Damages", so that the matters set out in the subparagraphs which follow would become material facts rather than particulars. I do not think anything turns on that for the purposes of this application. Counsel for the plaintiff also conceded that the pleas in pars 9(d) and (e) were objectionable in their current form and did not press to amend the statement of claim in those terms. Counsel indicated that amendments would be made to those pleas and in those circumstances it is unnecessary to deal with the defendants' objections to them.
23 I did not understand counsel for the defendants to press any objection to par 11(a), except to contend that the words complained of were not reasonably capable of being understood to denigrate the plaintiff. That objection, it was accepted, stood or fell with the defendants' objection to the capacity of the words to convey the imputations pleaded. As I have found against the defendants on the latter question it is unnecessary to deal further with par 11(a).
24 I think it is fair to say that the focus of the defendants' attack was on pars 11(b) and (c). It was submitted that the allegation in par 11(b) that the defendants "ought to have known" that the imputations were unjustifiable was not capable of supporting a claim for aggravated damages or was embarrassing. If that expression was intended to mean no more than the defendants simply failed to make enquiry, it did not support
(Page 12)
- the plea. If, on the other hand, it was intended to assert, for instance, that the defendants were reckless in failing to make enquiry, that did not emerge from the plea as it was currently formulated. The defendants also complained that it was unclear what was meant by the word "unjustifiable".
25 I accept those submissions. To establish an entitlement to aggravated damages it must be shown that the defendants acted improperly or unjustifiably, or lacked bona fides: Triggell v Pheeney (1951) 82 CLR 497 at 514 and Mirror Newspapers Ltd v Fitzpatrick [1984] 1 NSWLR 643 at 653 – 654. A mere failure to make enquiry would not, of itself, make out an entitlement to aggravated damages. If the words "ought to have known" are intended to assert something more than that, that does not emerge from the plea. I also accept that, in the context of this plea, the meaning intended by the word "unjustifiable" is unclear.
26 The defendants also submitted that the inference pleaded in par 11(c) was not capable of arising from the matters pleaded in pars 1 to 10 of the minute. There was nothing in those paragraphs to suggest that the defendants published the words in the knowledge that they were libellous or with reckless disregard as to whether or not they were libellous. All that is pleaded is that the defendants published the words.
27 I accept that submission. In my view, there is nothing pleaded in pars 1 to 10 of the minute that goes to the state of mind of the defendants in publishing the words and therefore nothing which is capable of establishing that the defendants published the words in the knowledge alleged.
28 I would therefore refuse leave to amend in terms of pars 11(b) and (c) of the minute.
29 I will hear the parties on the appropriate form of orders and on the question of costs.
0
18
0