Foulsham, J. v West Australian Newspapers Ltd

[1987] FCA 286

IN THE FEDERAL COURT	1
OF WESTERN AUSTRALIA	)

DISTRICT REGISTRY )

ZENERAL DIVISION 1 NO. WAG 30 Of 1985

B E T W E E N :

JOHN WILLIAM MUNRO FOULSHAM

and TIMOTHY GRAHAM SCHWASS

Appllcants

and

WEST AUSTRALIAN NEWSPAPERS LTD

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	5 JUNE 1987
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The respondent's motion filed 2 1 May 1987 is dismissed.

2 .

The applicants on or before 12 June 1987 do file and

deliver to the respondent particulars of the facts upon

which they rely to support the condition of mind

pleaded in paragraph (c) of the reply.

3 . The costs of the respondent's motion be in the cause.

Note :	Settlement and entry of orders
Order	36 of the Federal Court Rules.

IN THE FEDERAL COURT	)
OF WESTERN AUSTRALIA	)

DISTRICT REGISTRY 1

GENERAL DIVISION ) No. WAG 30 of 1985

B E T W E E N : JOHN WILLIAM MUNRO FOULSHAM

and TIMOTHY GRAHAM SCHWASS

Applicants

and

WEST AUSTRALIAN NEWSPAPERS LTD

Respondent

MINUTE OF ORDER

JUDGE MAKING ORDER:	FRENCH J.
DATE OF ORDER:	5 JUNE 1987
WHERE MADE:	PERTH

THE COURT ORDERS THAT:

1. The applicants have leave to fur .ther amen d their statement of claim in accordance with the minute filed herein on 21 May 1987.

2 . The filing and dellvery of the minute stand as filing and service of the further amended statement of claim.

3 .	The respondent do on or before 19 June 1987 file and
deliver any amended defence to the further amended statement of claim.

4 . The applicants' motion in so far as it relates to

leave to administer additional interrogatories will be

dismissed.

5. The applicants pay the respondent's costs of the motlon and costs thrown away by reason of the amendment.

2 .

6. The application be listed for further dlrectlons at

9 am on 26 June 1987.

Note: Settlement and entry of orders is dealt with in

Order 36 of the Federal Court Rules.

NOT INTENDFD FOR GENERAL

DISTRIBUTION

IN THE FEDERAL COURT

OF WESTERN AUSTRALIA	)
DISTRICT REGISTRY	)
GENERAL DIVISION	) No. WAG 30 of 1 9 8 5

B E T W E E N :

JOHN WILLIAM MUNRO FOULSHAM

and TIMOTHY GRAHAM SCHWASS

Appllcants

and

WEST AUSTRALIAN NEWSPAPERS LTD

Respondent

CORAM: FRENCH J.

5 JUNE 1 9 8 7

REASONS FOR JUDGMENT

The applicants in this case are legal officers employed by the Department of Community Welfare in the State of Western	.I .
Australla.

On 2 4 March 1985 they commenced proceedings in this

Court claiming agalnst the respondent damages for misleading and deceptive conduct in contravention of s.52 of the Trade Practices - Act 1974 and further or alternatively, damages at common law for libel.

The actlon arlses out of publicatlons in the Daily News newspaper of articles relating to advlce given out by welfare offlcers with the Department as to the entitlement of children to leave home after attaining the age of 16 years.

r

L.

The publicatlons complalned of are sald to have occurred on 20 February 1984 in the City and Final edltlons of the paper and on 4 and 26 April in that year.

The applicants allege, inter alia, that by the

publlcations It was represented that they:-

(a) Had been givlng wrong advlce to children, parents

and other authorities:

(b) Were incompetent;

(c)	Were Inefficient;
(d)	Were lacking in ~udgment.

The statement of claim as amended by an order of Toohey J. on 23 December 1985 sets out in paragraphs 3 , 7, 11 and 15 extensive quotations from the offending artlcles said to have been published on each of the four occasions pleaded.

The defence, which was also amended pursuant to an order of Toohey J. made on 20 January 1987, admits the various publicatlons alleged but denies ln each case that the words referred to, and were understood to refer to, the applicants. It

is also denied that the publications constituted misleading or

deceptive conduct.

Justification was pleaded in the alternative.

3 .

By the amendment, defences of fair comment and

publication on an occasion of qualified privilege were raised.

A reply to the defence which was filed on 1 2 May 1987

alleges that the publications were actuated by express malice.

The motions before the Court today are as follows:-

1. A motion by the applicants seeking leave to amend

parts of the amended statement of claim by deleting significant portions of the quotations from the articles complained of.

2 . By the same motion the appllcants seek leave to file an order for the answering of certain additional lnterrogatorles.

3 . A motion on the part of the respondent seeking to

strike out the reply as being likely to pre~udice,

embarrass or delay the proceedings or alternatively

as being vexatious and frivolous and disclosing no

reasonable case of malice.

The motion for leave to further amend the statement of

claim is opposed by the respondent. The motion is evidently

inspired by a comment made by Toohey J. on 23 December 1985 in his

reasons for ~udgment on an earlier motion to strike out parts of

the statement of claim.

His Honour said at pages 1 and 2 of his reasons:-

“Although the applicants complain only of certain passages, they have pleaded the articles in their entirety. This is unnecessary and It makes the statement of claim hard to assimilate readily. While the respondent has made no formal complaint about this

4 .

a s p e c t o f t h e p l e a d i n g , i t i s o n e t h a t s h o u l d b e

a t t e n d e d t o b e f o r e t h e a p p l i c a t i o n g o e s a n y f u r t h e r . "

T h e r e s p o n d e n t c o n t e n d s t h a t i f t h e a p p l i c a n t s a r e

a l l o w e d t o d e l e t e t h e i n d i c a t e d p a s s a q e s f r o m t h e q u o t a t i o n s o f

t h e a r t i c l e s p u b l i s h e d , t h e b a l a n c e o f t h e q u o t a t i o n s wlll b e o u t

of c o n t e x t . I n e f f e c t h e y seem to b e s a y l n g t h a t t h e a r t i c l e s

can o n l y b e r e a d a s a w h o l e .

G a t l e y I n L i b e l o n a n d S l a n d e r E i g h t h E d i t i o n a t

p a r a g r a p h 1069 i t 1s s a i d : -

" I f t h e p l a i n t i f f i s s u i n g i n respect c e r t a i n o f

l i b e l l o u s passages i n an a r t i c l e or l e t t e r , h e s h o u l d

n o t set o u t t h e w h o l e a r t i c l e or l e t te r : i t is

s u f f i c i e n t t o s e t o u t h e l i b e l l o u s p a s s a g e s o n l y ,

p r o v i d e d t h e i r m e a n i n g b e clear a n d i s t i n c t . B u t i f

t h e m e a n i n g o f t h e passages n e e d s c l a r i f i c a t i o n f r o m t h e

c o n t e x t , or i f t h e i m p u t a t i o n c o n v e y e d b y t h e l i b e l l o u s

p a s s a g e s is m a t e r i a l l y a l t e r e d or q u a l i f i e d b y o t h e r

passages i n t h e a r t l c l e or l e t t e r , t h e p l a i n t i f f s h o u l d

s p e c i f y t h o s e o t h e r passages w h i c h , a s h e c o n t e n d s , a re

t h e context f r o m w h i c h t h e n a t u r a l a n d o r d i n a r y m e a n i n g

i s d e r i v e d . He s h o u l d n o t p l e a d t h e w h o l e a r t i c l e or

l e t t e r . On t h e o t h e r h a n d , semble, h e c a n n o t p i c k a n d

c h o o s e between l i b e l l o u s p a s s a g e s w h i c h a r e n o t i n

s e v e r a b l e p a r t s o f t h e w o r k . And t h e r e may be cases i n

w h i c h t h e p l a i n t i f f can set o u t a w h o l e a r t i c l e i n t h e

statement o f c la im, a n d r e l y o n t h e e f f e c t i t makes a s a

w h o l e : i n s u c h a case t h e d e f e n d a n t w o u l d n o t b e

e n t i t l e d t o p a r t i c u l a r s or w h i c h p a r t s o f i t a re a l l e g e d

t o be d e f a m a t o r y ( s i c ) . "

i

I n my o p i n i o n , i t is t h e a p p l i c a n t s who are a t r i s k b y

t h e d e l e t i o n o f t h e pas sages w h i c h a r e t h e s u b ~ e c t o f t h e

t

amendment . For i f t h e p o r t i o n s t h e y now r e l y upon s h o u l d n o t , i n

i s o l a t i o n , b e a r t h e mean ings t h e y a t t r i b u t e t o t h e m t h e y w i l l be

u n a b l e t o r e l y u p o n t h o s e p a r t s n o t p l e a d e d .

5 .

If there are parts not pleaded which the respondent says quallfy the meanlnqs attributed to the pleaded portions, then it may raise those portions either particularly or by general reference in the defence to the context and balance of the article

complained	of .
In the event I will allow the amendments which are now
sought.

Before passing to the lnterrogatories it 1s convenient to deal with the respondent's motion to strike out the reply.

The reply alleges express mallce and gives particulars

in three paragraphs.

Paragraph (a) sets out the substance of a conversation between the applicant Schwass and a reporter, Maisey, working for the respondent.

Paragraph (b) sets out the substance of a similar

conversation between Foulsham and Maisey.

Each of the conversations is said to have taken place prior to the first publication complained of on 2 0 February 1984.

Paragraph (c) then alleges that:-

b

6 .

"The respondent published the sald words knowing them to be untrue and/or reckless not caring whether they were true or €alse and/or without any honest belief In their truth."

The substance of the conversations as pleaded in paragraphs (a) and (h) appears to be accurately reflected In the articles quoted as they stood prior to the amendment of the statement of claim as sought by the applicants' motion.

The complaint of the applicants seems to be that the respondent should not have published material conflicting with the account given by the applicants without further enquiry.

The basis upon which the allegation in paragraph (c) is made does not appear from the pleading.

find I ifficulty with the reply and with the

proposition that putting two conflicting accounts in an article is

indictative of malice against one side of the argument.

Nevertheless I am not inclined at this stage to strike out the reply having regard to the general principles governing such applications as enunciated in General Steel Industries Inc. v Commissioner for Railways (NSW) and Others (1964) 112 CLR 1 2 5 at 129.

I am of the view however that the respondent is entitled to particulars of the facts upon which the applicants rely to

7.

support thelr allegations contalned in paraqraph (c). The provlsion of such particulars 1 s required where there 1 s a

pleading of a condltlon of mind lncludlnq mallce and any

fraudulent intention (0.12 r . 3 ) .

In my opinlon such further particulars of facts upon whlch the applicants rely to establish the condltlon of mind pleaded in paragraph (c) can be regarded as particulars of the malice pleaded generally in the reply.

Finally as to the lnterrogatories for which leave 1s

sought, it 1s sought with respect to interrogatories numbered 2 and 3 In a notice dated 15 Aprll 1987. Leave has already been given by Toohey J. with respect to interrogatory number 1. For

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.I

completeness of understanding however I will set out all three

-.

interrogatories:-

" l . Are the three pages of documents attached hereto a

copy of the transcript of the reporter's

conversation with the plaintiffs?

2. If the answer to question number 1 is "yes", dld

the defendant seek advice with respect to the

conversations before publishing the artrcles the

subject of these proceedings?

3 .	If the answer to questlon number	2	is	"yes",
state:-

(a) the person or persons from whom that advice

was sought:

whether O K not the defendant acted on that if the defendant acted on that advice, what action dld the defendant take with respect to that advice?" advice ;

8.

In my opinion the interrogatories numbered 2 and 3 which are the sublect of the motion before the Court today, are so wide as to be oppresslve and potentially irrelevant and the respondent should not be required to answer them.

In the upshot I will allow the proposed amendments to the amended statement of claim, decllne leave to interroqate as sought in the applicants' motion and will dismlss the motion to strike out the reply. I will however order that the applicants give particulars wlthin 7 days of the facts upon which they rely to support the condition of mind pleaded in paragraph (c) of the reply.

I certify that thls and the precedlng

seven ( 7 ) pages are a true copy of the

reasons for ludgment hereln of hls

HOnOUK Mr Justice French.

Assoclate: L3eu;th

Counsel :

. for the Applicants: Mr S.A. Walker

instructed by McDonald b Sutherland

. for the Respondent: Mr G. Raymond

instructed by Mallesons Stephen Jaques

Date of Hearing: 2 2 May 1987

Date of Judgment: 5 June 1987