Fogarty v Nationwide News Pty Ltd

[2013] WASC 477

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   FOGARTY -v- NATIONWIDE NEWS PTY LTD [2013] WASC 477

CORAM:   KENNETH MARTIN J

HEARD:   11 DECEMBER 2013

DELIVERED          :   24 DECEMBER 2013

FILE NO/S:   CIV 1296 of 2013

BETWEEN:   JORDAN THOMAS FOGARTY

Plaintiff

AND

NATIONWIDE NEWS PTY LTD
First Defendant

PAUL LAMPATHAKIS
Second Defendant

Catchwords:

Defamation - Strike-out application - Plea of justification - Adequacy of particulars of justification

Legislation:

Defamation Act 2005 (WA), s 25
Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Application granted

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett

First Defendant             :     Ms C Galati

Second Defendant         :     Ms C Galati

Solicitors:

Plaintiff:     Bennett + Co

First Defendant             :     Carmel Galati

Second Defendant         :     Carmel Galati

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

General Steel Industry Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347

Saraceni v Mentha [2013] WASC 95

1. KENNETH MARTIN J:  By its minute of proposed orders of 26 August 2013 the plaintiff attacks pars 16(a) - (d), (f) - (g), (i), (j), (l) and (m) of the amended defence filed in this defamation action. 

2. Following conferral between the parties, the amended defence filed on 29 August 2013 has addressed some of the plaintiff's concerns, but only to a minor extent. 

3. Challenges against the abovementioned paragraphs are raised pursuant to O 20 r 19(1)(a) of the Rules of the Supreme Court1971 (WA) on a basis that these paragraphs fail (collectively) to establish an arguable defence. In addition, the plaintiff challenges par 16(h) under RSC O 19(1)(b) and (c), on the basis it is scandalous, frivolous or vexatious, alternatively may prejudice, embarrass or delay the fair trial of the action.

4. Essentially, the plaintiff is challenging the adequacy or coherence of the defendants' particulars of justification invoked in support of the defendants' justification response to one of the plaintiff's imputations pleaded under par 6.2 of the plaintiff's reamended statement of claim filed 21 June 2013. 

5. In short, the plaintiff's defamation action arises out of a media publication written by the second defendant, Mr Lampathakis, then published on the defendants' Perth Now web site on 26 January 2013 (the 'internet article') and on a news.com web site (par 8.1) (the 'news.com article') as well as an edition The Sunday Times of 27 January 2013 at page 11 under the heading 'New Twist In Pell [sic, Peel] Inquiry' (the 'newspaper article').

6. The plaintiff essentially extracts three common defamatory imputations from these publications each arising, he contends, in the natural and ordinary meaning of the words of each publication.  However, it is only the second of the three imputations (common to pars 6, 12 and 16 of the reamended statement of claim) that is sought to be supported on the basis of the common law plea by the defendants of justification.

7. The terms of the internet article complained of are set out in par 4 of the reamended statement of claim.  They were published in an article on the Perth Now web site under a heading 'A CAMPAIGN of intimidation against a key witness in the Peel Health Campus inquiry is under investigation'. 

8. I do not need to set out the full text of the article (which is common with what was alleged to have been republished on the news.com web site and in The Sunday Times newspaper article). 

9. Essentially, the article concerned the plaintiff's activities in contacting organisations who had been identified by the evidence of a Ms Ashton Foley (before a parliamentary inquiry) as her former employers.

The justification defence

1. The three imputations complained of by the plaintiff in respect of the publications and republications said to be defamatory in their natural and ordinary meaning, as they were understood to mean the plaintiff:

   6.1engaged in a criminal campaign of intimidation towards a woman;

   6.2is a person who engaged in deceptive conduct to harm a woman; and

   6.3is a person who unlawfully attempted to access emails the property of another.

2. Upon this application I am only concerned with the defence of justification or substantial truth as raised in respect of imputation 6.2 (and its counterparts under pars 12.2 and 16.2) in the reamended statement of claim. 

3. By their defence the defendants deny all imputations for which the plaintiff contends (par 5 of the amended defence, and its counterparts).  However, in the further alternative, the plaintiff then pleads under par 16:

   Justification

   16.If, which is denied, the Internet Article, the News.com Article and the Newspaper Article (the Matters Complained Of), convey the imputation pleaded at paragraph 6.2 (and the corresponding imputation in paragraphs 12.2, or 16.2) of the Statement of Claim, the imputation is true in substance and in fact.

   Particulars of Truth

   (a)The plaintiff is the son of Jonathan Fogarty, the chairman of Health Solutions Western Australia (HSWA), a former employer of Michelle Ashton Foley (Foley);

   (b)On or around 22 October 2012 HSWA, through its solicitors executed an Anton Pillar order on the home of Foley, inspecting documents and material in the possession of Foley, including matters personal to Foley, which caused Foley distress.

   (c)On 31 October 2012, Foley gave evidence to a parliamentary enquiry regarding the operating of Peel Health Campus by HSWA.  During that evidence Foley stated she had been previously employed by Open Universities Australia and Phosphagenics Limited.

   (d)On 6 December 2012, the Premier of Western Australia, directed that a special inquiry pursuant to section 24H(2) and (3) of the Public Sector Management Act 1994 be held 'to examine all aspects of the delivery of public health services at the Peel Health Campus by Health Solutions Pty Ltd on behalf of the Department of Health', appointing Professor Bryant Stokes as special inquirer (the Special Inquiry);

   (e)The plaintiff was aware of the matters referred to in paragraphs (c) and (d) above and further was aware that Foley would give evidence to the Special Inquiry.  The plaintiff's knowledge of the matters referred to in (c) and (d) above is to be inferred from the following matters:

   (i)The Parliamentary inquiry referred to in particular (c) was a matter of public record, the evidence having been largely given as part of an open inquiry;

   (ii)Various articles were published in The West Australian newspaper which refer to Ms Foley's evidence to the Parliamentary inquiry, namely:

   A.Article published on 30 October 2012 under the heading: 'Woman in tears after "intrusive" home search';

   B.Article published on 31 October 2012 under the heading:  'Doctor made thousands from "rort"';

   C.Article published on 10 November 2012 under the heading:  'Fong faces new crisis amid corruption claims';

   D.Article published on 1 December 2012 under the heading:  'Corruption calls for Hospital "fraud" inquiry';

   E.Article published on 1 December 2012 under the heading:  'It's not your concern?  Think again Minister'.

   F.Article published on 4 December 2012 under the heading:  'Key shareholder rejects Peel campus allegation';

   (iii)Various articles were published in The Sunday Times newspaper which refer to Ms Foley's evidence to the Parliamentary inquiry, namely:

   A.Article published on 2 December 2012 under the heading:  'Peel Hospital report demands full inquiry';

   B.Article published on 2 December 2012 under the heading:  'Scared but no regrets';

   C.Article published on 2 December 2012 under the heading:  'Small matter of influence';

   D.Article published on 2 December 2012 under the heading:  'Sticky problem for Hospital in crisis';

   E.Article published on 23 December 2012 under the heading:  'Minister for cash for pals';

   F.Article published on 30 December 2012 under the heading:  'Health boss "spin doctor"';

   (iv)The transcript of the evidence Ms Foley gave to the Parliamentary inquiry was published on the website of the Western Australian Parliament:  report of the Parliamentary inquiry, which inter alia, referred to Ms Foley's evidence, was published on the website of the Western Australian Parliament:  of the special inquiry referred to in particular (d) was given on the Western Australian Public Sector Standards website:  and also in newspaper publications, namely:

   A.Article published in The West Australian newspaper on 6 December 2012 under the heading:  'Barnett Peel inquiry reversal';

   B.Article published in The West Australian newspaper on 7 December 2012 under the heading:  '"Horror year" for health campus';

   C.Article published in The Sunday Times newspaper on 9 December 2012 under the heading:  'Peel boss's audit fear';

   D.Article published in The Sunday Times newspaper on 6 January 2013 under the heading:  'Peel probe avoids poll';

   E.Article published in The Sunday Times newspaper on 13 January 2013 under the heading:  'No action so far on Peel probe';

   F.Article published in The Sunday Times newspaper on 20 January 2013 under the heading:  'No bite in health inquiry';

   (vii)The fact that the plaintiff engaged in the conduct referred to in particulars (g), (h), (j), (k) and (l).  It is to be inferred that that conduct was engaged in by the plaintiff for the purpose of discrediting Ms Foley, the plaintiff having become aware of the evidence given by Ms Foley to the Parliamentary enquiry referred to in particular (c) and that Ms Foley was to give evidence to the Special Inquiry.

   (f)On or around 17 January 2013, the then solicitors for Foley, Hammond Legal, were contacted by the Executive Officer to the Special Inquiry, advising that Professor Stokes wished to hear evidence from Foley as soon as possible.

   (g)On or around 17 January 2013 the plaintiff telephoned Open Universities Australia and falsely claimed to be a representative from an organisation called 'CV verify', seeking information about Foley's employment with Open Universities Australia;

   (h)The plaintiff falsely represented to Open Universities Australia that he would send a consent form signed by Foley to enable the release of Foley's employment information to him;

   (i)On or around 17 January 2013 Foley was contacted by a representative of Open Universities and informed of the matters referred to in sub-paragraphs (g) and (h) above, which caused Foley distress;

   (j)On or around 24 January 2013 the plaintiff telephoned Phosphagenics Limited, informing a representative that he was undertaking a background check and wanted to know whether Foley had been employed at Phosphagenics Limited;

   (k)The plaintiff informed the representative of Phosphagenics Limited that Foley is a liar and a fraud;

   (l)On or around 22 January 2013, Foley received a message that her profile on the internet site Linkedin ( had been viewed by the plaintiff, which caused Foley distress;

   (m)On or around 24 January 2013, Foley was contacted by a representative of Phosphagenics Limited and informed of the matters referred to in paragraph (j) and (k) above, which caused Foley distress;

Preliminary observations

1. At the outset it is clear:

   (a)The plaintiff's imputation by par 6.2 (and its counterparts) has not been challenged by the defendants by any interlocutory application in the proceedings to date.  Instead, the defendants have chosen to plead in response to that imputation.

   (b)Analysis of imputation 6.2 and 6.1 by reference to all the publications and republications complained of reveal that the woman concerned under each imputation is Ms Ashton Foley.  Hence the phrases under par 6.1 'towards a woman' and in par 6.2 'to harm a woman' - have been framed in that context - as regards the natural and ordinary meaning of the words of each publication.

   (c)Imputation 6.2 contains two discernible key elements.  First, the underlying deceptive conduct said to have been engaged in by the plaintiff; but second, the assertion of deliberate purpose from the plaintiff as regards such conduct - the alleged purpose being to harm a woman (ie, to harm Ms Foley).

   (d)It is not simply enough then for the justification response to this imputation to identify some deceptive conduct engaged in by the plaintiff.  More is required, namely, an attribution of a purposive intent in the plaintiff which underlies the conduct in question.

   (e)The word 'harm' used in imputation 6.2 is a word of broad import in meaning.  It is wide enough to easily embrace physical harm, economic harm, reputational harm including, as was submitted by counsel for the defendants, harm to the credibility of Ms Foley.  Words used in the publications complained of in the context of asserted harm include:

   •      'intimidation'
   •      'intimidated'
   •      'insidious activities'

Underlying legal principles

1. There was no dispute between the parties as to applicable principles of law underlying this strikeout application insofar as a challenge grounded on arguments that the pleaded defence does not disclose an arguable defence (ie, basis for the plea of justification or substantial truth) is to be evaluated.  A relatively low interlocutory threshold arising out of principles well established in cases such as General Steel Industry Inc v Commissioner of Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125 applies. In other words, the plaintiff needs to make out an overwhelming case on this application that the particulars of truth as pleaded by the defendants are essentially untenable as regards a justification defence concerning this imputation.

2. In my reasons for decision in Saraceni v Mentha [2013] WASC 95 [50] I referred to observations by Steytler J as he then was in Heytsbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, 448 - 449. His Honour had said:

   It must always be borne in mind that it is the imputations contained in the words which have to be justified and not the literal truth of the words nor, importantly in the context of this case, some other, similar charge not contained in the words (citations omitted).

3. See also my reasons in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [40].

4. The defendant contends, and I accept, that it would be an error of principle to severally and individually evaluate each particular of truth on a stand alone basis.  The particulars of truth ought be evaluated in context overall in terms of what they are capable of arguably achieving at a trial.  Accordingly, some limited foundational, contextual, introductory or explanatory material may be provided.  Such material should not be eliminated by a stand alone evaluation as not capable of achieving the objective of showing truth in substance and fact or substantial truth. 

5. Nevertheless, any coherent process of intellectual scrutiny and engagement logically will require an ordered evaluation of the various components as assembled.  The fact that in this process some observations must necessarily be made sequentially in relation to the various components - does not mean that their wider possible role used in potential combination has been ignored.  The need to ultimately focus upon the intended rope, rather than individual strands, does not immunise the strands from legitimate intellectual scrutiny, and if necessary, their rejection as potential strands. 

6. It is important to note each case will be different in terms of the underlying facts and circumstances assembled, particularly in a justification case.

Discussion and evaluation

1. First it will be noticed pars 16(b), (i), (l) and (m) contain a common phrase, 'which caused Foley distress'.  By my assessment, whether or not Ms Foley was caused distress is an entirely irrelevant consideration - when measured against imputation 6.2.  As I observed, the imputation directs attention to some arguably deceptive conduct on the part of the plaintiff that is engaged in for a purpose of harming Ms Foley (in the very broad sense of the word 'harm' as discussed).  But the suffering of distress is not a pertinent consideration in this process.

2. Second, pars 16(a) through (f) might be characterised as containing foundational or introductory material.  But par 16(e)(vii) appears to be of a different ilk.  Its legitimacy, in my assessment, turns on whether the three distinct incidents of conduct which are relied upon from the ensuing subpars (g), (h), (j), (k) and (l) are capable of (arguably) fulfilling the justification or substantial truth function asked of them.  These subparagraphs therefore stand or fall with the following subparagraphs dealing with the substantive incidents of alleged conduct by the plaintiff and which together are advanced by way of its intended justification defence to imputation 6.2. 

3. Third, basically the key subparagraphs raise three distinct incidents of conduct by the plaintiff.  The first incident arises out of subpars (g), (h) and (i), which relate to the plaintiff's alleged contact with Ms Foley's asserted former employer, Open Universities Australia, and then the contact with Ms Foley by a representative of Open Universities Australia, informing her of the matters referred to in subpars (g) and (h).  (I have already observed upon the conceptual irrelevance of any reference to her alleged distress in all subparagraphs, which should be struck out, in any event.)

4. The second justification incident concerns the plaintiff's alleged contact with another asserted former employer of Ms Foley, Phosphagenics Ltd, as seen from subpars (j), (k) and (m).

5. A last justification incident of conduct in the particulars is mentioned under par 16(l) - as regards Ms Foley receiving a message that her 'profile' on an internet site Linkedin - had been viewed by the plaintiff (plus the (irrelevant) contention that such message caused her distress).

6. During argument it was accepted that par 16(l) by itself could not support a plea of justification or substantial truth.  However, it was nevertheless sought to be defended on the basis of its worth when viewed in combination with other conduct incidents.

First incident:  subpars (g), (h) and (i)

1. Subparagraph (h) is only challenged on the basis of RSC O 20 r 19(1)(b) and (c). It is not challenged on a basis that it fails to disclose an arguable cause of action.

2. By reference to subpar (g) the contention is the plaintiff telephoned Open Universities Australia and falsely claimed to be a representative from 'CV Verify'.  Such conduct, I accept, could constitute, at least at the interlocutory threshold some arguable basis for identifying potentially deceptive conduct on the plaintiff's part, when seeking information about Ms Foley's prior employment history with Open Universities Australia. 

3. Likewise, at subpar (h), a reference to a false representation that the plaintiff would send a consent form signed by Ms Foley to enable a release of information about her prior employment, equally could constitute a second arguable episode of deceptive conduct. 

4. However, on my assessment, neither piece of conduct provides a sufficient or arguable basis to show the plaintiff held any intent to cause 'harm' to Ms Foley by his telephone contact with the unidentified representative from Open Universities Australia.  That missing ingredient is also not capable of being found as regards what appears under (i). 

5. The fact some unidentified representative of Open Universities has subsequently made their own contact with Ms Foley is completely irrelevant towards justifying an arguable existence of the second required, purposive element in the plaintiff under imputation 6.2.  In other words, from where does the plaintiff's intent to harm Ms Foley by his telephone contact with Open Universities arguably emerge?  The fact that someone from Open Universities then contacts Ms Foley and tells her of the enquiry received from the plaintiff (calling himself a representative of 'CV Verify') is neither here nor there. 

1. Nor, to my mind, is it clear from par 16(i) whether it was the fact of telephone contact from the plaintiff to Open Universities Australia enquiring about Ms Foley's prior employment history that is the relevant factor contended for - or whether it is the asserted falsity of what was said (allegedly) by the plaintiff as regards 'CV Verify' or as regards his promised sending of a signed consent form by Ms Foley.  In the end, that all seems to go to the question of Ms Foley's asserted distress under 16(i) which, in the circumstances, is conceptually irrelevant.

2. By themselves, therefore, subpars (g), (h) and (i) as regards an incident of conduct put forward to justify imputation 6.2, are deficient.  I will put them aside, however, for the moment in order to evaluate what remains - so that at the end of the process the entire picture is looked at again and then re-evaluated as a whole.

Second incident:  pars 16(j), (k) and (m) of the amended defence

1. A core difficulty at the outset with subpars (j) and (k) is that they do not identify on the face of it any 'deceptive conduct' on the part of the plaintiff.  The undertaking of a background check as to Ms Foley's past employment history appears to be just what Mr Fogarty was doing.  Informing a representative of Phosphagenics Ltd that he was conducting a background check, by wanting to know whether Ms Foley had been employed at Phosphagenics Ltd could present, on my assessment, no element of arguably deceptive conduct.

2. Likewise, conduct asserted against the plaintiff under (k), as regards what he informed a representative of Phosphagenics Ltd does not of itself and without more, clearly present as deceptive conduct on his part, even if that conduct occurred. 

3. I note, however, that par 16(k) is not challenged on this application.  The question, however, is where it sits in overall context.  I accept that the conduct identified under (k) may arguably qualify as conduct capable of being assessed as intended by the plaintiff to harm Ms Foley (at least harm her in the sense of damaging her reputation with a prior employer).

4. Subparagraph (m) then combines subpars (j) and (k) on a basis that Ms Foley was later contacted by a representative of Phosphagenics Ltd and apparently informed of the matters referred to under subpar (j) and subpar (k), and which again caused her distress.  Again distress is, as a matter of concept, wholly irrelevant.  What is relevant is the identification of some potentially deceptive conduct.  Fatally, no arguably deceptive conduct is identified here.

Third incident:  Linkedin

1. The only contention is seen at par 16(l).  But nothing emerges from that subparagraph concerning either deceptive conduct on the part of the plaintiff in viewing a publicly assessable internet site upon which it would appear Ms Foley has placed her own material to be viewed publicly. 

2. Nor do I detect any basis to contend for harm to Ms Foley arising out of the plaintiff accessing the Linkedin internet site and viewing material placed there by Ms Foley herself to be viewed by the world at large.  By itself, par 16(l) goes nowhere.

Aggregate assessment

1. Assessing the particulars of justification all together, there are plainly deficiencies in respect of the incident concerning the plaintiff's enquiry by telephone of Open Universities Australia - as regards the lack of any purposive intent to harm on the part of the plaintiff.  The plaintiff's conduct in making telephone contact with a former employer of Ms Foley, seeking to verify her prior asserted employment history, is consistent with a wholly benign purpose of doing just that - verifying her prior employment history.  No basis to contend that this conduct, even if there was an element of arguable deception, arises.

2. Likewise, subpars (j), (k) and (m) assessed together lack any arguable element of deceptive conduct.  The reference under (l) to Linkedin is wholly deficient.

3. Viewing all this material together it is, on my assessment, sadly lacking in terms of it achieving the purpose of showing an arguable basis to support the plea of justification or substantial truth in respect of imputation 16.2. 

4. That deficiency correlatively brings down, in turn, introductory subpars (a), (b), (c) and (d), since they in aggregate go nowhere.  Likewise, subpar (e) in terms of asserted knowledge by the plaintiff of matters in subpars (c) and (d) can achieve no end, in a context of the deficiencies under the paragraphs identified.  Furthermore, subpar 16(e)(vii) in terms of its contention as to an inference about 'discrediting Ms Foley' needs to be assessed by reference to the conduct to which it internally refers, namely under subpars (g), (h), (j), (k) and (l). 

5. These subparagraphs assessed alone and in aggregate are manifestly deficient in terms of achieving their intended objective.

6. On this basis, all paragraphs the subject of the plaintiff's challenge should be struck out as failing to disclose any arguable defence.

7. The challenge against par 16(h) in terms of it failing to identify the person to whom the false representation is made is capable of being redressed by a request for particulars.  That challenge viewed by itself must be dismissed.  However, the plea of justification as a whole, even omitting subpar (h) from the analysis, is so deficient that the entirety of par 16 should be struck out with leave to replead.

8. The plaintiff should provide a minute of orders arising from these reasons within 14 days.  The plaintiff should also have its taxed costs of this application.  The plaintiff should confer with the defendants and submit a minute of proposed orders giving effect to these reasons by Monday, 20 January 2014.