Emerson v Walker - [2001] WASC 7

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: EMERSON -v- WALKER & ORS [2001] WASC 7

CORAM: OWEN J

HEARD: 18 JULY 2000

DELIVERED : 18 JANUARY 2001

FILE NO/S: CIV 1879 of 1999

BETWEEN: ROSS EMERSON
Plaintiff
AND
PATRICK WALKER
First Defendant
DENIS ROGERS
Second Defendant
AUSTRALIAN BROADCASTING CORPORATION
Third Defendant
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Fourth Defendant

Catchwords:

Defamation - Statements amount to defamation - Application to strike out parts of statement of claim - Turns on own facts

Legislation:

Nil

Result:

Part of statement of claim struck out

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     No appearance
Second Defendant         :     Mr R W Richardson
Third Defendant           :     Mr R L Le Miere QC
Fourth Defendant          :     Ms C Galati

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     No appearance
Second Defendant         :     Jackson McDonald
Third Defendant           :     Blake Dawson Waldron
Fourth Defendant          :     Edwards Wallace

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

Berkoff v Burchill [1996] 4 All ER 1008
Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449
Corse v Robinson, unreported; SCt of WA (FCt); Library No 970669; 8 November 1997
Drummond-Jackson v British Medical Association [1970] 1 WLR 688
Emerson v Walker [1999] WASC 265
John Fairfax & Sons Ltd v Punch [1980] 47 FLR 458
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418
Youssoupoff v MGM Pictures (1934) 50 TLR 581

Case(s) also cited:

ABC v Comalco Ltd (1986) 12 FCR 510
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Crane v Nationwide News [1999] WASC 113
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Evans v John Fairfax & Sons Ltd (1993) 112 FLR 74
Gascoine v McGinty (1995) 14 WAR 542
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gumina v Williams (No 1) (1990) 3 WAR 342
Jones v Skelton [1963] 1 WLR 1362
Leslie v Mirror Newspapers (1971) 125 CLR 332
Lewis v Daily Telegraph [1964] AC 234
Livingstone-Thomas v Associated Newspapers Ltd (1969) 90 WN (NSW) (Pt 1) 223
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW; Library No 21293 of 1995; 21 June 1996
Smith v Littlemore (1996) 15 WAR 289

OWEN J: These reasons cover applications by three of four defendants in a defamation action to strike out the plaintiff's statement of claim.

Background

This not the first time that the plaintiff's statement of claim has been under attack. In Emerson v Walker [1999] WASC 265 (which I will call "Emerson") Steytler J dealt with applications by all four defendants to strike out the claim. On 16 December 1999 his Honour handed down reasons in which, in relation to each defendant, the claim was struck out in part with leave to replead. On 25 February 2000 the plaintiff filed an amended statement of claim in accordance with that leave. The first defendant appears to be satisfied with the amended pleading, at least in so far as it affects him, and has not sought further relief. However, on 11 April 2000 each of the second, third and fourth defendants took out an application to strike out, either wholly or in part, the amended statement of claim. Those applications were heard together.
The background is set out in Emerson and it will be necessary to read these reasons together with what Steytler J has said in that decision. These reasons are themselves a little unusual because they will consist very significantly of large portions of text taken from Steytler J's judgment. The reason for me taking that course of action will become apparent a little later.
In relation to the third defendant the plaintiff complains about a radio broadcast made on 26 January 1999. It is to be found in Emerson at [8]. It is short and I will set it out in full:
"Newsreader: 'It has been revealed that the Australian umpire at the centre of cricket's latest throwing row, Ross Emerson, has been off work because of what's believed to be a stress-related illness. Emerson, who called Sri Lankan spinner Muttiah Muralitharan for throwing at the one day match against England at the weekend has been off work at the Ministry of Fair Trading in Perth for more than 4 weeks. The Ministry's Chief Executive, Pat Walker, says he's surprised Mr Emerson can't work but can officiate in international cricket matches.
First Defendant: He has been off work for a number of weeks. He's filed an application for workers compensation. Mr Emerson's doctor, while indicating that he is not able to work has indicated that he believes cricket umpiring is within his present capabilities.' "
The third defendant had originally pleaded that in its natural and ordinary meaning the radio broadcast meant and was understood to mean:
"7.1 the Plaintiff was a malingerer; alternatively
7.2 the Plaintiff had been deceitful in umpiring an international cricket match, knowing that he was mentally and physically incapable of competently performing his duties as an international cricket umpire due to a stress related condition."
Steytler J held that the imputation that the plaintiff was a malingerer was not so manifestly untenable that it ought to be struck out. In relation to par 7.2, it will be apparent that the cause of action against the third defendant arises because it broadcast words spoken by the first defendant. His Honour had earlier ruled that the words spoken by the first defendant could not give rise to a defamatory meaning based an allegation that the plaintiff had been deceitful. Paragraph 12.2 of the statement of claim contained a plea to that effect. In that respect Steytler J had said this:
"As to par 12.2 counsel for Mr Walker contends that there is nothing in the words attributed to Mr Walker which is even arguably capable of suggesting that the plaintiff had been deceitful in any respect at all.
It seems to me that that submission has merit. Even if, as counsel for the plaintiff submitted, the surprise attributed to Mr Walker might be taken by some listeners to be surprise that the plaintiff is able to officiate in international cricket matches that does not mean that the plaintiff had, in any sense, been deceitful. Mr Walker is reported to have said that the plaintiff had consulted his doctor and been told that he was able to umpire cricket matches. That is hardly consistent with deceit on the plaintiff's part in umpiring when he knew that he was incapable of doing so competently because of a stress related illness.
I should add, in any event, that it is not apparent just what is the deceit referred to in par 12.2. The word "deceitful" is not, in my opinion, apt to describe conduct in the form of umpiring an international cricket match when knowing of an incapacity to do so competently. Rather, it seems to me, it conveys something more than this as, for example, the suggestion of concealment of the incapacity from the Australian Cricket Board. While that meaning was disavowed by counsel for the plaintiff it seems to me that, if no such additional meaning is both intended and made clear in the pleading, the word "deceitful" should not be permitted to stand.
I should also add, although no point was taken in this respect, that there is nothing in Mr Walker's comments which suggests that the plaintiff had a stress-related illness.
I consequently propose to strike out par 12.2."
His Honour said of par 7.2:
"However it seems to me that imputation 7.2 is plainly unsustainable. There is nothing in the radio broadcast which could even arguably be taken to suggest that the plaintiff had been deceitful in any respect or even that he knew that cricket umpiring was not within his capabilities. Rather, the broadcast makes it plain that the plaintiff had been told by his doctor that cricket umpiring was within his capabilities. I refer, as regards this imputation, to what I have said in respect of par 12.2."
In the amended pleading, the plaintiff has retained the allegation in par 7.1 but deleted par 7.2. No challenge is now made to that amendment but I have mentioned it because the question of "deceit" is relevant to other amendments.
So far as concerns the radio publication, the third defendant has not sought to replead the defence which was previously in par 7.2. The case will therefore proceed against both the first and third defendants on the imputation that the plaintiff was a malingerer. I should add that when the solicitors for the plaintiff prepared the amended statement of claim they overlooked that Steytler J had struck out certain words at the end of par 9. Counsel for the plaintiff conceded that this was an oversight. All words from and after the words "and the third defendant … " in the third line of par 9 will therefore be struck out.
The third defendant is also in the firing line, so to speak, because of a television broadcast aired of 7 January 1999. It is set out in full in Emerson at [13] and I will not repeat it. However, it includes the following:
"Introduction:      'Controversial one day umpire suspended by the Cricket Board.
[…]
Newsreader: The Australian Cricket Board has stood down the umpire at the centre of last week's growing [sic] controversy in Adelaide. It's been revealed that Ross Emerson was umpiring despite being on stress leave from his regular job in Perth, but disciplinary proceedings against Sri Lankan captain Arjuna Ranatoonga [sic] over the incident have been adjourned.
[…]
Reporter:     … It's believed that Emerson was on stress related leave from his job with the Ministry of Fair Trading in Perth when he stood in the Sri Lankan match. The Australian Cricket Board has spoken to Emerson about the issue but the umpire wouldn't comment as he left Adelaide this afternoon.
Plaintiff:     I don't wish to comment … [accompanied by footage of the Plaintiff at the airport].
Reporter:     Late today the Australian Cricket Board held a media conference confirming a decision regarding the umpire.
Second Defendant: I am announcing today that umpire Ross Emerson has been stood down from his 2 international umpiring appointments at Perth this weekend.
Reporter:     The ACB says Emerson has a stress condition they were not made aware of until late last night.
Second Defendant: If he's not fit to be at work the question has to be asked is he fit to officiate in a cricket match?
Reporter:     A medical procedure review by the Board is now underway. The ACB claims today's adjourned hearing was not related to news of umpire Emerson's condition."
In par 18 of the statement of claim the plaintiff initially pleaded that those words meant and were understood to mean, in their natural and ordinary meaning, that:
"18.1 the Plaintiff was a malingerer; alternatively
18.2 the Plaintiff had been deceitful in umpiring an international cricket match knowing that he was not mentally and physically capable of competently performing those umpiring duties due to a stress related illness;
18.3 the Plaintiff deceitfully concealed from the Australian Cricket Board his lack of competency to umpire an international cricket match due to his stress-related illness;"
In par 30 of the statement of claim, the plaintiff had pleaded an imputation against the second defendant in almost identical terms to par 18 arising from the words said to have been uttered by him at a press conference and included in the television broadcast. In relation to par 30, Steytler J had this to say:
"It seems to me that there is nothing in the words attributed to Mr Rogers which could arguably give rise to the imputation that the plaintiff was a malingerer.
Mr Rogers is attributed as saying that the plaintiff "had a stress condition". Moreover it seems, from what was said by Mr Rogers, that it was this stress condition which led to the plaintiff being stood down from his two international umpiring appointments. It is in that context that the question is put, "If he's not fit to be at work, the question has to be asked, is he fit to officiate in a cricket match?". The emphasis is on the plaintiff's fitness to officiate in a cricket match and not on his fitness to be at work. Nothing can, in this context, be drawn from the use of the word "If". The use of that word, in its overall context, is not in my opinion even arguably capable of suggesting to any reasonable listener that Mr Rogers believed that the plaintiff was fit to be at work. Rather, the context of the question is such that any reasonable listener would understand it to mean, "In circumstances in which the plaintiff is not fit to be at work, a question has to be asked, is he fit to officiate in a cricket match?".
I consequently propose to strike out par 30.1.
As to par 30.2 it seems to me that there is nothing in the words attributed to Mr Rogers which could arguably give rise to an imputation that the plaintiff had "acted deceitfully" in any respect. There is nothing to suggest that the plaintiff knew that he was mentally and physically incapable of competently performing his umpiring duties because of his stress related illness. Indeed there is nothing in the words complained of to suggest that the plaintiff had umpired a cricket match at all. I should also repeat what I have said as to the use of the word "deceitfully" in respect of par 12.2.
I consequently propose to strike out par 30.2 also.
As to imputation 30.3 it seems to me that the complaints in respect of this imputation are likewise well made. While it might be inferred from what is pleaded in par 29.2 that the plaintiff had not disclosed his stress condition until the previous evening or, perhaps, at all, there is nothing in the quoted words which is even arguably capable of suggesting that he had deliberately and deceitfully concealed from the Australian Cricket Board his lack of competence to umpire an international cricket match. There is, as I have earlier said, nothing in the quoted words to suggest that the plaintiff was even aware of any lack of competence to umpire an international cricket match due to his stress condition.
I should add, in any event, that there may be some overlap between imputations 30.2 and 30.3 if the word "deceitful" in par 30.2 does convey the notion of concealment of an incapacity to umpire competently, that notion being the subject of the imputation pleaded in par 30.3.
I consequently propose to strike out imputation 30.3 also."
In relation to the third defendant Steytler J came to the same conclusion. When dealing with par 18, he incorporated the reasoning he had outlined when discussing par 30 and added:
"As to the imputation pleaded in par 18.1, that the plaintiff was a malingerer, it seems to me that there is nothing in the television broadcast which is arguably capable of giving rise to this. The mere statement that it had been revealed that he was umpiring despite being on stress leave from his regular job is not enough, more particularly in circumstances in which the Australian Cricket Board is reported as saying that the plaintiff "has a stress condition". Moreover the reporter spoke of "news of umpire Emerson's condition". There is no suggestion that it is an "alleged condition". Rather, the suggestion is that it is an actual "condition". The words "If he's not fit to be at work the question has to be asked is he fit to officiate in a cricket match?" attributed to Mr Rogers must be seen in the context to which I have earlier referred when dealing with Mr Rogers' application in respect of par 30.1.
As to the imputation pleaded in par 18.2, there is nothing in the television broadcast which is arguably capable of giving rise to any suggestion of deceit on the plaintiff's part in the respect pleaded. There is nothing in the published words to suggest that the plaintiff knew that he was incapable of competently performing his umpiring duties because of his stress-related illness (if, indeed, that was the case) and consequently that he was "deceitful" in umpiring when he knew that he could not competently do so. Furthermore, I repeat what I have previously said about the use of the word "deceitful" in this context.
I consequently propose to strike out par 18.2.
Similarly, the imputation of deceit in par 18.3 is not arguably capable of being supported by anything said in the television broadcast. While the reporter is recorded as saying that the Australian Cricket Board was only made aware of the plaintiff's stress condition "late last night" there is no suggestion that the plaintiff had been deceitful in not disclosing that fact until that time. Nor is that conclusion altered by the use of the word "revealed" in the newsreader's initial comments. Even if the fact that the plaintiff suffered from a stress related illness was "revealed" by someone other than the plaintiff this could not, in my opinion, even arguably give rise to an imputation, without more, that the plaintiff had been deceitful in not disclosing that fact himself. The deceit which is said to be inferred is one in failing to disclose his inability to umpire competently. While it might be inferred from the television broadcast that the Australian Cricket Board questioned his competence, as a result of his stress-related illness, there is, as I have said, nothing to suggest that the plaintiff believed that he was not capable of umpiring competently and therefore that he deliberately concealed any such lack of competency from the Australian Cricket Board."
The amended par 18 casts the imputations alleged against the third defendant in these terms (and to save me repeating the words, the imputation pleaded against the second defendant in par 30 is in the same terms):
"In its natural and ordinary meaning the [publication] meant and was understood to mean:
18.1the plaintiff was not fit to umpire international cricket matches because of a stress related condition;
18.2the plaintiff umpired an international cricket match while not fit to do so;
18.3the plaintiff had acted improperly as an international cricket umpire in failing to inform the Australian Cricket Board of his stress leave prior to umpiring an international cricket match."
In relation to par 30, the words attributed to the second defendant at the press conference were set out in par 29. They were confined to those words which were included in the third defendant's broadcast. However, the reformulated par 29 contains additional words said to have been spoken by the second defendant at the press conference. They are:
"29.4'the moment that the Australian Cricket Board became aware of Mr Emerson's condition, we took steps to relieve him of his international umpiring commitments'
29.5'the only reason that Mr Emerson has been stood down was because the Board became aware of his ill health'
29.6'it is the ACB's position that in these circumstances it is both entitled and required to satisfy itself and the cricket public that his admitted medical condition does not impact on his ability to umpire international cricket matches'
29.7'the ACB is under a stringent duty of care to minimise the risk of injury to its employees and therefore must do a comprehensive review of Mr Emerson's condition'
29.8'Mr Emerson told me that he does not believe his stress condition affects his umpiring ability'
29.9'the decision to stand down Mr Emerson has nothing to do with his controversial no-ball call for throwing of Sri Lankan spinner Muttiah Muralitharan in Adelaide on Saturday'."
The case against the fourth defendant arises from two articles published in the newspaper, the first on 27 January 1999 and the second on the following day. The first article, which is set out in full in Emerson at [16]. I will not set it out in full but it includes the following:
"Stress Umpire Stood Down
Embattled WA Umpire Ross Emerson arrived back in Perth yesterday - but he need not have bothered.
He has been stood down from umpiring and will not be officiating in the England-Sri Lanka clash at the WACA ground on Friday. The move comes after The West Australian revealed Mr Emerson was on stress leave from his work at the Ministry of Fair Trading.
……………
Mr Emerson has been off work on stress leave for several weeks but has continued to umpire international matches.
Australian Cricket Board Chairman Denis Rogers announced yesterday that Mr Emerson had been stood down because it was discovered he was on stress leave from work.
'If he is not fit to be at work, the question has to be asked, is he fit to officiate in a cricket match?' Mr Rogers said.
Ministry Chief Executive Pat Walker said a doctor confirmed Mr Emerson's condition, which was being investigated by State Government Insurance manager Risk Cover.
'Mr Emerson had an application for workers compensation' he said. 'That's being dealt with by Risk Cover and there are some enquiries by Risk Cover in relation to that claim.'
'Mr Emerson's doctor, while indicating that he is not able to work, has indicated that he believes that cricket umpiring is within his present capabilities.'
Mr Rogers said ….. .
'It is the ACB position that in these circumstances it is both entitled and required to satisfy itself and the cricket public that his admitted medical condition does not impact on his ability to umpire international cricket matches' he said.
Mr Rogers said Mr Emerson had told him that his stress condition did not affect his umpiring ability.
But the ACB was under a stringent duty of care to minimise the risk of injury or illness to its employees and therefore must do a comprehensive review of Mr Emerson's condition.
Mr Emerson has been stood down for 2 international umpiring appointments in Perth this weekend.
………….."

In its original form par 22 of the statement of claim alleged the same imputations as those contained in pars 18 and 30 in their original form, that is, that the plaintiff was a malingerer, he was deceitful in umpiring when not capable of doing so and he was deceitful in concealing from the Board his lack of competence. Steytler J allowed the imputation was a malingerer to stand but he struck out both imputations based on deceitful conduct on the grounds that they were not capable of arising from the newspaper report. His Honour said:
"There is, once again, nothing to suggest that the plaintiff had been deceitful in any respect. While it is true that the first newspaper article reports that it was The West Australian itself which revealed that the plaintiff was on stress leave, that does not give rise to an imputation that the plaintiff had been deceitful in continuing to umpire international cricket matches knowing that he was incapable of competently doing so or that he had deceitfully concealed his lack of competence from the Australian Cricket Board. Rather, the first newspaper publication quotes Mr Walker as saying that the plaintiff's doctor believes that cricket umpiring is within the plaintiff's capabilities. I should also repeat, as regards par 22.2 and par 22.3, what I have said in respect of par 30.2 (save that it does appear from the words quoted in par 21 that the plaintiff had been umpiring while on stress leave) and par 30.3."
The reformulated par 22 retains the imputation about the plaintiff being a malingerer and asserts that the report in its natural and ordinary meaning meant and was understood to mean:
"22.2the plaintiff was not fit to umpire international cricket matches because of a stress related condition;
22.3the plaintiff umpired an international cricket match whilst not fit to do so;
22.4the plaintiff acted improperly as an international cricket umpire in failing to inform the Australian Cricket Board of his stress leave prior to umpiring an international cricket match."
That brings me to the second newspaper report published by the fourth defendant. It is to be found in Emerson at [19] and includes the following:
"Stress Umpire Left Police
Stressed international cricket umpire Ross Emerson was one of two former New South Wales police employed by the WA Ministry of Fair Trading as investigators.
Both were detective-constables who had left the New South Wales Police Service after receiving threats.
……………
Mr Emerson was stood down from umpiring by the Australian Cricket Board on Tuesday, the same day the West Australian revealed he had been off work for several weeks due to stress. After standing down Mr Emerson, ACB Chairman Dennis Rogers said 'if he is not fit to be at work the question has to be asked is he fit to officiate in a cricket match?'
Mr Rogers said the decision to stand down Mr Emerson had nothing to do with his controversial no-ball call for throwing against Sri-Lankan Muttiah Muralitheran in Adelaide on Saturday.
The call sparked a near walk off by the Sri Lankans [ … ]"
In relation to this second report, par 26 of the statement of claim in its original form was virtually identical to pars 18, 22 and 30. Steytler J noted that a number of paragraphs that appeared in the article were not included in the pleading. He went on to say:
"The imputation in par 26.1 that the plaintiff was a malingerer could only arise, if it is capable of arising, from the revelation that he had been off work for several weeks due to stress coupled with the comment of Mr Rogers to the effect that "If he is not fit to be at work the question has to be asked is he fit to officiate in a cricket match?". It seems to me that that comment, in its context (including the reference to the fact that the plaintiff had been stood down) is not arguably capable of giving rise to an imputation that the plaintiff was a malingerer. I reiterate, in this respect, what I have said in respect of par 30.1 of the statement of claim.
As to par 26.2 and par 26.3 I am, once again, of the opinion that there is nothing in the publication which is even arguably capable of giving rise to an imputation of deceit on the plaintiff's part. There is nothing in the second newspaper publication to suggest that the plaintiff knew that he was not mentally and physically capable of competently performing umpiring duties. I should also repeat, in regard to these paragraphs, what I have said in respect of par 30.2 (save that it does appear from the words quoted in par 25 that the plaintiff had been umpiring while on stress leave) and par 30.3."
The plaintiff has amended par 25 to include the paragraphs of the article that had been omitted from the pleading in its original form. I can say immediately that while the fourth defendant was quite entitled to insist on the entire article being included so that the words complained of could be seen in context, I do not think the additional paragraphs have any bearing on the questions that I am now called on to answer. Nonetheless, I should set out the additional words because I have to assess the imputations in their entire context:
"Minister for Fair Trading Doug Shave detailed the backgrounds of Mr Emerson and Mr Stockton in Parliament last year in response to questions by Labor MLA Alan Carpenter.
Mr Shave said Mr Emerson received a medical discharge from the NSW Police Service after he suffered an 'on-duty injury'.
Mr Shave did not specify whether the injury was physical but said Mr Emerson had been threatened by crooked NSW detective Roger Rogerson.
'He was involved in internal investigations in NSW' he said.
'There was a lot of concern and threats were made by people such as Roger Rogerson about the way he was behaving.
He was a very fine officer'."
The reformulated par 26 is in virtually identical terms to the new version of pars 18 and 30. Nonetheless, I will set it out:
"In its natural and ordinary meaning the [report] meant and was understood to mean:
26.1the plaintiff was not fit to umpire international cricket matches because of a stress related condition;
26.2the plaintiff umpired an international cricket match while not fit to do so;
26.3the plaintiff had acted improperly as an international cricket umpire in failing to inform the Australian Cricket Board of his stress leave prior to umpiring an international cricket match."
The second defendant also challenges pars 39 and 41 of the amended pleading, which relate to damages. These challenges do not depend on what Steytler J decided and I will deal with them separately.

Strike Out Applications - Legal Principles

With great respect, I would be entirely unable to improve on the exposition of the legal principles relating to strike‑out applications of this nature given by Steytler J in Emerson at [27] to [29]. I adopt what his Honour has there said.
Counsel for the several parties cited previous decisions in attempts to draw analogies with the allegations in this case. That can sometimes be helpful but I think it has to be approached with caution. The ultimate question is whether the ordinary reasonable reader would regard these publications as conveying a defamatory meaning. Each case depends so much on its context.

The Challenges by the Third Defendant

The plaintiff concedes that there is a clerical error in par 9 of the amended statement of claim and the plaintiff. There should be a full stop after the word "re‑published" in the third line and all words appearing after that word should be deleted. Leave is granted to the plaintiff to make that further amendment.
The third defendant seeks to have par 18 struck out on the ground that the defamatory imputations simply do not arise from the television broadcast and accordingly, it does not disclose a reasonable cause of action.
Leaving to one side issues relating to the plaintiff's "calling" of Murilitharan, the broadcast has five comments that are pertinent to the plaintiff. The first is that the plaintiff has been suspended by the Board. This is repeated later when the second defendant is reported as having said that the plaintiff had been stood down from the two games at which he was to have officiated on the following weekend. The second comment is that the plaintiff umpired in the Adelaide match when he was on stress-related leave from his employment with the Ministry of Fair Trading in Perth. Thirdly, that the Board had not been made aware of the stress condition until the previous evening. The fourth is that the question must be asked whether, if he is not fit to be at work, is he fit to officiate in a cricket match? Finally that the Board had initiated a medical procedure review.
The first complaint is that the imputation in par 18.1 is not reasonably capable of being conveyed by the words used in the publication. In the circumstances of this case the two questions, namely whether the pleaded imputations arise from the words used and whether, if they do, they are defamatory, are not easy to separate. The publication refers to the plaintiff as having been suspended, that he was on stress leave from his job and that a question must be asked whether, if he is not fit to work (inferentially because of stress), he is fit to umpire? To decide what imputations arise, it is necessary to determine exactly what is meant. It is in this latter aspect that the defamatory content, if it exists, falls to be determined.
It seems to me that to say of a person that he or she suffers from stress may not of itself be defamatory. The New Shorter Oxford Dictionary defines stress, relevantly as: "a condition or adverse circumstance that disturbs, or is likely to disturb, the normal psychological functioning of an individual". In the modern era I think that to say of someone that he or she is suffering from stress or a stress-related illness or condition would not normally cause ordinary reasonable people to think less of the person. Again, it depends on the context. If , for example, the entire publication were to lead to the inference the person was the author of his or her own misfortune, perhaps because the mental problem was a result of drug abuse and therefore self-inflicted, it might be different. But I think the ordinary reasonable person would regard stress-related illness that did not have that genesis as a misfortune rather than as being something in respect of which blame should attach to the sufferer. In this respect, the analysis given by Hunt J in Boyd v Mirror Newspapers Ltd (1980) 2 NSWLR 449 is of some assistance. In that case a rugby league player had been described as "fat, slow and predictable". This was held not to be defamatory. Hunt J drew the analogy of reference to a ballet dancer as being "fat and cumbersome". His Honour said, at 456: "I do not see how the description is defamatory unless that condition is shown or suggested to have resulted from some cause for which the plaintiff is blameworthy". This, it seems to me, is something that is missing from the publication complained of.
Counsel for the plaintiff submitted that it is not necessary for there to be moral fault before an imputation can be held to be defamatory, citing Berkoff v Burchill [1996] 4 All ER 1008 and Youssoupoff v MGM Pictures (1934) 50 TLR 581. This is certainly true as a general statement. But again, each case has to be assessed according to its own circumstances. What has to be shown is that the words complained of would cause the person at whom they are directed to be shunned or avoided by, or held up to ridicule in the eyes of, the ordinary reasonable reader, viewer or listener: see Berkoff per Neill LJ at 1018 and Phillips LJ at 1021.
There are, of course, shades of meaning. It may well be defamatory to say of a person that he or she is insane or has a mental illness or an infectious disease because that attributes to the person a faculty that could cause that person to be shunned or avoided by ordinary reasonable members of the community. But can it be said that the same result will follow merely because the person is said to have a stress-related illness or condition? Nor, in my view could it be said that ordinary reasonable members of the community would hold the person up to ridicule merely on the basis that he or she is suffering from stress.
Counsel for the plaintiff referred to John Fairfax & Sons Ltd v Punch [1980] 47 FLR 458. In that case Brennan J, at 467, indicated a view that in relation to an imputation of a disability affecting the performance of the functions of an office the "classic definition" of defamation as something exposing the object of the publication to "hatred, contempt or ridicule" was too narrow. His Honour adopted the dicta of Scrutton LJ in Youssoupoff at 584: "a defamatory statement is a 'false statement about a man to his discredit' ". It was, Brennan J said, sufficient if the tendency of the words is to injure. But a similar question arises: is the statement that a person suffers from stress or a stress‑related illness or condition one that is to the person's discredit or one that has a tendency to injure? In my view it does not.
What, then, is the precise act or condition that is alleged and which would cause the reputation of the plaintiff to be lowered (in the relevant sense) in the minds of ordinary reasonable members of the community? It seems to be not merely that the plaintiff was suffering from stress but that the condition rendered him unfit to officiate as an umpire in cricket matches conducted at a first class level.
In the television broadcast it is said that the plaintiff has been stood down from umpiring duties (not, I should add, indefinitely but for the two matches that were to be played on the following weekend and for which he been appointed), that he "has a stress condition" and that there is a medical procedure review underway. Then, of course, there is the comment: " If he's not fit to be at work the question has to be asked is he fit to officiate in a cricket match?".
These things may all suggest that the Board had a concern that the plaintiff's stress-related illness might place his fitness to umpire in question. But I do not think that the words used elevate the meaning above suspicion of a condition that requires investigation to an imputation of a factual unfitness. In this respect, the case has some similarities to the dichotomy between imputations of suspicion and allegations of guilt: as to which see Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 and Corse v Robinson, unreported; SCt of WA (FCt); Library No 970669; 8 November 1997 at 11. The ordinary reasonable reader could not take from the words complained of that the plaintiff was unfit to umpire a cricket match because of his stress-related illness. It would be open to read the publication as meaning that there were circumstances that justified investigation. It can be put no higher than that. In my view a trier of fact could not properly regard that imputation as defamatory.
This is not, as counsel for the plaintiff sugested, a bane and antidote situation: as to which see Morosi v Broadcasting Station 2GB [1980] 2 NSWLR 418 at 419. It cannot be understood as an allegation of unfitness (the bane) tempered by the Board's duty to endure that the stress condition does not impact on the plaintiff's ability to umpire (the antidote). Bane and antidote arises in the context of a defence. Here, it is a case of looking at the impugned words in the context of the publication as a whole and deciding what they mean.
It must be borne in mind that Steytler J ruled specifically that there was "nothing in the published words to suggest that the plaintiff knew that he was incapable of competently performing his umpiring duties because of his stress related illness … ". The change of emphasis in the plea from deceit to a factual allegation of incapacity cannot mask a collateral attack on the conclusions reached by Steytler J. Put in a slightly different way, the defamatory imputation (if it is to arise at all) must be ascertained directly from the words used and not by importing some notion of impropriety in the sense of officiating when he knew his efficiency, judgment or capacity was impaired.
This is the very matter to which counsel for the plaintiff referred in seeking to distinguish between the imputations in pars 18.1 and 18.2. However, it seems to me that this additional element simply does not arise from the published words. In any event, it is foreclosed by the rulings of Steytler J. Paragraph 18.2 should also be struck out. This is the reasons why I have been at pains to identify with some precision the basis on which the reasoning of Steytler J in Emerson proceeded.
Counsel for the plaintiff relied on Drummond-Jackson v British Medical Association [1970] 1 WLR 688 to support his proposition that an allegation that the plaintiff umpired a match while lacking the capacity to do so would cause him to be shunned irrespective of the absence of moral fault. But I am not sure that the case is apposite. The thrust of the allegation in Drummond‑Jackson was that the dentist was professionally lacking in efficiency, judgment or capacity in applying a technique which placed his patients in danger. That, it seems to me, is a comment going to professional competence generally, not to something that arises as a result of an illness or condition. If, contrary to my view, the imputation of unfitness does arise then I think it is an allegation of quite a different nature to that which excited attention in Drummond‑Jackson.
Paragraph 18.3 presents difficulties that often arise when an imputation is based on the word "improper". This is not to say that an allegation of impropriety cannot ever support a defamatory imputation. However, as a pleading point, great care must be taken to ensure that the context in which it is used makes plain the precise meaning which the word carries.
Once again, the starting point is that the publication does not carry the meaning that the plaintiff deceitfully kept from the Board details of his stress‑related condition. It must be borne in mind that the three imputations pleaded in par 18 are to be read separately, albeit in the context of the publication as a whole. Looked that in this light, the imputation for which the plaintiff contends relates to the failure of the plaintiff to inform the Board that he was on stress leave from his job before taking up the appointment to officiate. It is not, in its terms, related to any alleged lack of competency arising form the stress‑related illness. In any event, if I am correct in my conclusion that the imputations in pars 18.1 and 18.2 do not arise, this is how the par 18.3 must be approached.
Counsel for the third defendant submitted that there is no pleading of a factual basis from which an argument could arise that the plaintiff was under a duty (contractual or otherwise) to make particular disclosures to the Board or that there were procedures that he was required to follow and that he did not do so. Counsel for the plaintiff submitted that the starting point was the article itself. The innuendo arises from that which is pleaded and it is not possible (or necessary) for the plaintiff to do any better than the imputation that the article conveys. The plaintiff contends that the proper sting that comes from the article is that the plaintiff acted improperly in not revealing to his employer that he had a condition that rendered him incapable of umpiring at a time when he was undertaking umpiring duties. The fact that the publications did not "go forward and explain the existence of the duty" then it is not incumbent on the plaintiff effectively to embellish the article by doing so.
In his oral submissions, counsel for the plaintiff made it clear that the imputation in par 18.3 was intended to stand alone and did not depend on the imputations of unfitness. As counsel for the plaintiff put it: "if you are on stress leave and you fail to inform the Cricket Board of your stress leave and conduct yourself as an umpire of an international cricket match, the imputation that comes from the article is that it's improper".

According to the television broadcast, the Board had not become aware that the plaintiff had a stress condition until "late last night". On the very next day it took action to suspend or stand down the plaintiff from his umpiring duties. It then instituted a medical procedure review. In my view, it would be open to the ordinary reasonable viewer to take from these words that the Board harboured a feeling that the plaintiff should have informed it that he was on stress leave. It certainly leaves open the question how the duty arose. But I think there is enough, in the fact of suspension and the implementation of the medical procedure review following in such close temporal proximity to the time at which the Board first became aware of the condition, to say that the ordinary reasonable reader could conclude that the plaintiff failed to do something which he should have done.
It seems to me that, in relation to pars 18.1 and 18.2, there are difficulties with the notion of unfitness. There is also the missing element of conscious or knowing incapacity at the time when the plaintiff officiated. Steytler J has ruled that the publication does not bear such a meaning and I respectfully agree. I do not think the position will be advanced by the plaintiff having a further opportunity to replead the case in relation to pars 18.1 and 18.2.
On the other hand, I do not think that par 18.3 is so manifestly untenable that it ought to be struck out. It does not depend on the notion of unfitness. The problematic word "improper" is to be understood in the sense that I have outlined. I do not think it needs further refinement.

The Challenges by the Second Defendant

In my view the same result follows for par 30 of the amended statement of claim. I have already said that I do not think that the additional words used by the second defendant in the press conference (and which now appear in the expanded par 29) do not materially alter the situation. In fact, they emphasise the difficulties in relying (as I believe the plaintiff would have to do if he were to succeed) on some conscious wrong-doing on his part because the second defendant has included in his remarks that the plaintiff had told him that he (the plaintiff) did not believe his stress condition affected his umpiring ability.
There several other facets to this publication. There is the fact that the Board took action (to suspend the plaintiff) "the moment [it] became aware of [the plaintiff's] condition". In other words there was a temporal connection between the discovery (by the Board) of the condition and its decision to act. There is also the exposition of a duty (residing in the Board) to investigate the plaintiff's condition so as to satisfy itself and the cricketing public that the plaintiff's condition had no impact on his capacity to umpire and to avoid any breach of a duty of care to minimise the risk of injury to an employee.
Counsel for the second defendant submitted that there was another fatal flaw in the plaintiff's pleading. He submitted that there was nothing in the publication from which it could be taken that the plaintiff had umpired a match during the relevant period. The answer to that criticism lies in the words recited in par 29.9. There is nothing in this particular criticism.
I repeat what I have said in the previous section of these reasons when discussing cases such as Harrison and Corse. In my view the same can be said par 30 as was said in relation to par 18 on this aspect.
Accordingly, par 30.1 and 30.2 should be struck out in but par 30.3 can stand. Leave to replead in relation to pars 30.1 and 30.2 will not be given.
The second defendant also objected to pars 39 and 41 of the amended statement of claim. They related to the claim for aggravated and exemplary damages against the second defendant. There are some drafting problems with the paragraphs but I think they have been identified and can be remedied by textual amendments.

The Fourth Defendant's Challenge

Steytler J has held that the imputation that the plaintiff is a malingerer could arise from the first of the newspaper articles. That conclusion stands. However, the plaintiff now wishes to put the case, in relation to that article, in the same way as pars 18 and 30.
The content of the first newspaper article is textually the same, for all material purposes, as that which governs the case against the second defendant. There are some additional comments. Counsel for the plaintiff laid some emphasis on the comment that the fact that the plaintiff was on stress leave had been "revealed" by the fourth defendant. I am not at all convinced that this would have any effect on the way that the ordinary reasonable reader would understand the article.
The article also contained a comment attributed to the first defendant to the effect that the plaintiff had applied for workers compensation and that inquiries were being conducted by the employer's insurer. This may be relevant to the imputation that the plaintiff is a malingerer but I cannot see any relevance to the imputations recited in pars 22.2, 22.3 and 22.4.
It also quoted the first defendant as saying: "[The plaintiff's] doctor, while indicating that he is not able to work, has indicated that he believes that cricket umpiring is within his present capabilities". Once again, this emphasises the difficulties in relying (as I believe the plaintiff would have to do if he were to succeed) on some conscious wrong‑doing on his part, namely, officiating when he knew that he was unfit to do so.
For the same reasons as have caused me to conclude that the imputations do not arise against the second and third defendants, I do not think defamatory imputations pleaded in pars 22.2 or 22.3 arise against the fourth defendant but I am prepared to allow the imputation in par 22.4 to stand.
That leaves the second newspaper article. Certain additional words have been added since the plea, in its original form, was considered by Steytler J. His Honour had before him a pleading that involved the allegation of deceit. Now, the same imputations as are contained in pars 18, 30 and 22.2 to 22.4 are said to arise. I do not think the additional words assist the plaintiff in this respect. They relate to an explanation given by the relevant Minister concerning the plaintiff's background as a serving police officer in New South Wales before he joined the Ministry. They have nothing whatsoever to do with stress‑related illness, stress leave or the plaintiff's activities as a cricket umpire.
Once again, for the same reasons as have caused me to conclude that the imputations do not arise against the second and third defendants, I do not think defamatory imputations as pleaded in pars 26.1 and 26.2 arise against the fourth defendant in relation to the second newspaper article. Again for the same reasons I would decline leave to replead. I am prepared to allow the imputation in par 26.3 to stand.

Conclusion

The pleading, in so far as it relates to the first defendant remains untouched.
As against the third defendant, the amendment to par 7 has not been challenged. The words "and the Third Defendant is thereby liable for each and every re-publication of the content of the Third Defendant's Radio Broadcast" must be struck out from par 9. The plaintiff can still pursue a case based on the imputation, said to arise from the radio publication, that the plaintiff is a malingerer.
However, pars 18.1, 18.2, 22.2, 22.3, 26.1, 26.2, 30.1 and 30.2 should be struck out, although the imputations in pars 18.3, 22.4, 26.3 and 30.3 can remain.
Paragraphs 39 and 41 should be struck out with leave to replead.
The most appropriate course may be for the plaintiff to file a substituted statement of claim repleading (in the main by re‑numbering) the case in accordance with these reasons. That, however, is essentially a matter for the plaintiff.
The defendants should bring in minutes of orders in accordance with these reasons for decision. As each party has been partially successful I am minded to order that the costs of the application be in the cause. If the parties are content with that course the matter can then be disposed of without the need for a further appearance. If any party wishes to move for special orders, either as to the substance of the applications or as to costs, he or it should contact my Associate and arrangements will be made formally to list the matter.