Gallagher v Destiny Publications Pty Ltd (No 2)
[2015] WASC 475
•9 DECEMBER 2015
GALLAGHER -v- DESTINY PUBLICATIONS PTY LTD [No 2] [2015] WASC 475
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 475 | |
| Case No: | CIV:1636/2013 | 2 SEPTEMBER 2015 | |
| Coram: | KENNETH MARTIN J | 9/12/15 | |
| 47 | Judgment Part: | 1 of 1 | |
| Result: | Application successful in part | ||
| B | |||
| PDF Version |
| Parties: | MICHAEL GALLAGHER LILLIAN MAHER DESTINY PUBLICATIONS PTY LTD GERASIMAS GEORGATOS |
Catchwords: | Defamation Interlocutory strikeout application Challenges against defence pleading Pleas of justification Substantial truth Fair comment and honest opinion Qualified privilege pleas Alleged plea of bad reputation Turns on own facts |
Legislation: | Defamation Act 2005 (WA), s 25, s 30, s 31 |
Case References: | Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25 Buckeridge v Walter [2010] WASCA 134 Cheikho v Nationwide News Pty Ltd [No 3] [2015] NSWSC 146 Findlay v Grimmer [No 3] [2014] WASC 228 Gallagher v Destiny Publications Pty Ltd [2015] WASC 40 Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400 Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534 Scott v Sampson (1882) 8 QBD 491 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
LILLIAN MAHER
Second Plaintiff
AND
DESTINY PUBLICATIONS PTY LTD
First Defendant
GERASIMAS GEORGATOS
Second Defendant
Catchwords:
Defamation - Interlocutory strikeout application - Challenges against defence pleading - Pleas of justification - Substantial truth - Fair comment and honest opinion - Qualified privilege pleas - Alleged plea of bad reputation - Turns on own facts
Legislation:
Defamation Act 2005 (WA), s 25, s 30, s 31
Result:
Application successful in part
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
First Defendant : No appearance
Second Defendant : Mr C Dibb
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
First Defendant : No appearance
Second Defendant : Mitry Lawyers
Case(s) referred to in judgment(s):
Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25
Buckeridge v Walter [2010] WASCA 134
Cheikho v Nationwide News Pty Ltd [No 3] [2015] NSWSC 146
Findlay v Grimmer [No 3] [2014] WASC 228
Gallagher v Destiny Publications Pty Ltd [2015] WASC 40
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400
Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534
Scott v Sampson (1882) 8 QBD 491
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
1 KENNETH MARTIN J: This is another strikeout application by the plaintiffs against the second defendant's defence pleadings.
2 The first defendant entered liquidation in 2015 and consequently the plaintiffs' action against the defendant corporation is effectively stayed: see Corporations Act 2001 (Cth) s 471B(a). There has been no application for leave to proceed as against the first defendant.
Relevant pleading history
3 Recounting this action's pleading history, from the perspective of the defendants, I mention that on 17 June 2014, upon the plaintiffs' application, I had struck out major components of the defendants' then re-amended defence, of 13 March 2014.
4 That decision was essentially delivered after an extended ex parte argument attacking most of the defence pleading, and conducted in the absence of any appearance or participation at that time on the part of either defendant.
5 At that time, mid-2014, I was persuaded to strike out as unsupportable large tracts of a then jointly filed defence pleading on behalf of both defendants and, in particular, the defence paragraphs attempting to raise the defences of honest opinion and justification. In short, I then concluded that those pleas, as formulated, were thoroughly misconceived, as is now seemingly accepted, at least on the part of the second defendant, Mr Georgatos: see the defendants' written submissions of 11 August 2015, par 8.
6 By par 6 of my orders of 17 June 2014, I allowed both defendants more time to re-plead, as regards the struck out paragraphs of the defence, albeit I limited the time for that to happen, to 27 June 2014.
7 However, all progress stagnated at that point due to the intrusion of a number of diverting developments, including a need to determine the plaintiffs' motion for the committal of the second defendant for an alleged contempt of court: see Gallagher v Destiny Publications Pty Ltd [2015] WASC 40. In that diverting process, there emerged something of a silver lining as the second defendant, who had for some time been unrepresented by any legal practitioner, managed to secure some limited pro bono legal assistance, by which he (and the court) have been helpfully assisted.
8 Subsequently, the plaintiffs filed a re-amended statement of claim (REASOC) on 10 March 2015. I subsequently issued some updated further programming directions.
9 After more delays, the process culminated in a filing on behalf of Mr Georgatos as second defendant of a further re-amended defence pleading (FREAD) of 21 April 2015, updated to correct some typographical errors on 23 April 2015.
10 The FREAD pleading bears little, if any, relationship to the defendants' joint anterior pleading under the substantively struck out re-amended defence of 13 March 2014. The FREAD is, for all intents and purposes, a fresh defence plea starting from scratch.
11 Nonetheless, by the application of 11 June 2015 the plaintiffs apply to strike out the substantial content of the latest defence plea filed on behalf of Mr Georgatos, including the defence pleas which may be collected under the umbrella headings of:
(a) justification defences and particulars thereto;
(b) a so-called Hore-Lacy(or Polly Peck) defence under par 24;
(c) qualified privilege defences, seen under pars 7, 13, 20, 39, 40 and 41;
(d) honest opinion/fair comment defences seen pleaded under pars 6, 12, 19, 39, 40 and 41; and
(e) the bad reputation/mitigation of damages plea, seen under par 57.1 [sic].
12 The plaintiffs' strikeout application is supported by their written submissions of 11 June 2015.
13 The second defendant, through pro bono legal representatives, has filed written submissions, effectively seeking to defend the defence pleading. The written submissions received are of 11 August 2015 and 1 September 2015, respectively. The plaintiffs filed further written submissions in reply, on 24 August 2015.
14 The scale of the alleged defamatory publications, and the volume of materials complained of that is put under consideration, is formidable. The latest REASOC runs to 47 pages. There is a further 90 pages of materials appended to the REASOC as the diverse publications complained of, including some allegedly aggravating publications, also complained about.
15 The presently impugned FREAD, signed by pro bono counsel, is a pleading of lesser dimension, spanning just over 19 pages.
The publications
16 To provide some necessary context for the present strike out application, I append to these reasons only the first and second publications complained of by the plaintiffs, which are found at pages 48 through 52 of the current iteration of the plaintiffs' REASOC.
17 These materials contain what are referred to as a first publication, at page 48, spanning to page 49, which article was written by the second defendant and appears in the National Indigenous Times newspaper of Wednesday, 31 October 2012, and published under a headline, 'Whistleblower Reveals Fortescue's Backing For Wirlu-Murra To Undermine Yindjibarndi Stand' with the subheading 'Mining Deal Bombshell'. There follows the article described as an 'exclusive', with the byline, 'By National Indigenous Times Reporter Gerry Georgatos' (ie, the second defendant).
18 The second publication, found between pages 50 and 52 of the REASOC, also carries the byline of the second defendant. It is another National Indigenous Times publication, this time of Wednesday, 28 November 2012, appearing under the headline 'Hit The Road Twiggy'.
Challenges to FREAD justification/s 25 pleas: first and second publications
19 The major component, both in terms of volume of paper and timewise, in the arguments between the parties, concerned the plaintiffs' renewed attack against new pleas of justification and substantial truth, sought to be raised under the FREAD pleading.
20 The justification plea raised in an attempt to defend the first publication's imputations, is coupled to an alternate plea, raising the applicability of s 25 of the Defamation Act 2005 (WA) (effectively, a plea of substantial truth). The pleas display some 37 sub-particulars of justification, seen as subpars 5.1 through 5.37. Each is the subject of the plaintiffs' challenge by this application.
21 A schedule to the plaintiffs' first tranche of written submissions identifies multiple objections on a several basis, put against each of particulars 5.4 through 5.37. This attack is implemented, at least on paper, in somewhat peremptory fashion, generally seen on the basis of a one word assertion, such as 'irrelevancy', or that a particular is challenged as 'conclusionary', or 'vague', or sometimes because the given particular is baldly classed as being 'evidence not material facts'. To be completely accurate, I record that sub-pars 5.1 through 5.3 escaped such a several challenge. But those sub-paragraphs, as constructed, are essentially either introductory or conclusionary, such that if the remaining discrete challenges were upheld, then they would essentially lack any substantive content for the purpose of advancing a justification defence, or a s 25 Defamation Act line of defence.
22 To better understand the basis for the challenges, which were elaborated upon verbally during argument by counsel, it is necessary to consider first, the defamatory imputations which the plaintiffs seek to extract from the publications complained of.
23 In attempting to render a little more manageable and comprehensible what might otherwise be an unduly oppressive exercise, given the sheer magnitude of the underlying materials, I confine myself initially, in the reasons to imputations which the first plaintiff, Mr Gallagher, seeks to extract out of just the first and second National Indigenous Times publications complained about.
24 Under par 6 of the REASOC, Mr Gallagher contends for popular (false) innuendo meanings said to be defamatory of him in three respects, namely, that in the natural and ordinary meaning of the words of the first publication it meant that Mr Gallagher:
6.1 pretends to act as a consultant of the WMYAC [meaning a native title group earlier defined as the Wirlu-Murra Yindjibarndi Aboriginal Corporation] whilst covertly furthering the interests of FMG [in context a reference to Fortescue Metals Group] to the detriment of the Wirlu-Murra people;
6.2 despite being a consultant to WMYAC deviously manipulates the WMYAC for the benefit of FMG; and
6.3 is a traitor to WMYAC.
25 Out of the second publication, there are four distinct popular (false) innuendo meanings contended for concerning Mr Gallagher, namely, that:
9.1 whilst engaged as a consultant to the WMYAC, [he] deviously manipulates the Wirlu-Murra people for the benefit of FMG;
9.2 whilst pretending to assist the WMYAC wants them to remain impoverished so that they will be reliant on FMG;
9.3 despite being engaged as a consultant to the WMYAC, is in fact secretly assisting FMG to deny the Wirlu-Murra people reasonable compensation for the use of their land; and
9.4 whilst engaged as a consultant to the WMYAC, [he] is in fact working as FMG's inside man.
26 None of these alleged defamatory imputations contended by Mr Gallagher to arise from the publications have been challenged in the past by an interlocutory strikeout application brought on the part of the defendants.
27 The essential task presently then is for me to evaluate those contended defamatory imputations against the answering materials sought to be put up by Mr Georgatos, by way of contended justification to the imputations or, alternatively, as an arguable basis to support the contended defence of substantial truth, under s 25 of the Defamation Act.
28 Before addressing the justification/s 25 issues applicable to the first and second publications, it is necessary to briefly revisit some underlying principles of defamation law concerning pleas of justification and the stringent criteria for a legitimate interlocutory challenge against such pleas.
Legal principles: strikeout applications and justification/s 25 Defamation Act pleas
29 It is trite to observe that this is a pleadings strikeout application and, in that context, I am only concerned with assessing the reasonable arguability of the defences which have been pleaded by or on behalf of the second defendant. I am certainly not determining the substantive merits of such defences.
30 To summarily strike out the second defendant's pleaded defences, because they fail to disclose any reasonably arguable defence, an applicant plaintiff must first discharge a high threshold. To the extent that the present challenge is also advanced on the basis of alleged pleading embarrassment, in a sense that the defendant's defence pleading is challenged as raising vague, unclear, ambiguous or inconsistent materials which would, in a realistic sense, jeopardise or prejudice the holding of a fair trial, then, again, it is for the plaintiff to clearly show that position, without being unduly precious about it. See my observations in Findlay v Grimmer [No 3] [2014] WASC 228.
31 Sometimes it is possible to clinically evaluate a pleaded justification defence or its accompanying proposed particulars of justification - as being so untenable that a safe conclusion of unarguability is almost self-evident. That was indeed the position presented within this litigation earlier, as regards the prior re-amended defence at the ex parte hearing held on 17 June 2014, where I said (at ts 74):
... I am satisfied that the particulars of defence, seen under paragraph 5 of the reamended defence, filed 13 March 2014, don't engage with the essence of the natural and ordinary meaning imputation which is raised by the first plaintiff under subparagraph 6.1, which is that the words were understood to mean that Mr Gallagher, 'pretends to act as a consultant of the WMYAC … whilst covertly furthering the interests of FMG to the detriment of the WMYAC people'.
- I also said:
In my view, what is found through subparagraphs 5.1 through 5.5, doesn't engage with the essence of that pejorative imputation …
and I continued at ts 75:
… Now, I've not lost sight of the fact that the first plaintiff faces a high threshold here in terms of striking out a plea of justification, but in terms of what the court expects by way of a proper engagement in terms of facts put up to justify a defamatory imputation, it is not acceptable to put down a verbose amount of rhetoric without any factual substance, and try and hide behind trite recitations of native title law, in terms of engaging with that imputation.
What's called for is precision, and what's seen under those subparagraphs, is essentially, vague, oppressive verbosity. And it's simply not possible to find a thimble of gold in that haystack of irrelevance in those subparagraphs. So they must all be struck out.
33 The challenge facing a plaintiff seeking to strike out a defence plea of, and the accompanying particulars of, justification, can give rise to a need for factual evaluations - which are difficult to render within the context of an interlocutory hearing, pitched at an evaluative (low) threshold of showing respectable arguability.
34 With that difficulty in mind, the second defendant, through counsel, referred me to reasons of Hodgson JA in Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 [20]. There, under extempore observations concerning a challenge against a defence plea of contextual truth, his Honour had said (with the agreement of Tobias JA and Santow JA):
For my part, I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate.
I am not persuaded at this stage that the particulars in this case fall so far short of being able to permit evidence that could establish the truth of the contextual imputations that the contextual imputations should be struck out [20] - [21].
35 Those observations were applied more recently, by McCallum J in Cheikho v Nationwide News Pty Ltd [No 3] [2015] NSWSC 146, delivered 6 February 2015. Her Honour applied those observations of Hodgson JA. She also rendered some further observations under [16] and [17] that are relied on by counsel for Mr Georgatos.
36 Paragraph [16] raised some contemporary observations about the operation of a Defamation List Practice Note in New South Wales, not directly relevant to the present application. But her Honour's second observation was more general and is of relevance. McCallum J said, at [17]:
… it is equally established that particulars are not to be regarded as the evidence, rather that they denote the topics of which evidence will be adduced. To allow the particulars to stand says nothing as to whether the evidence sought to be adduced in support of them will be admitted. That is a matter for the trial judge. In my view, if the defendants wish to be able to argue that the matters in those particulars go to proving the truth of the imputations, the particulars should be allowed to stand on the pleading. That says nothing as to whether that evidence will be admitted, but it preserves the defendant's position. For my part, I would add that I can see a logical connection between the particulars added to the pleading and the propositions that the defendants will have to prove in support of the truth defence.
37 Applying the approach in Hayson, as subsequently applied in Cheikho, counsel for Mr Georgatos argues that his justification particulars must be assessed as mere topics of evidence, rather than the actual evidence sought to be adduced at the trial in support of those topics. I agree that a trial admissibility of evidence standard is not the evaluative criteria to be applied to the particulars on a strikeout application.
38 In Khan v Fairfax Le Miere J considered that same broad NSW line of defamation authority. At [21] of those reasons he was guided by the approach of the Court of Appeal of England and Wales in Ashcroft v Foley [2012] EWCA Civ 423; [2012] EMLR 25, expressed in these terms:
So far as the particulars are concerned, the vice of a vague and general meaning is that it is liable to lead to a loose and ineffective pleading with excessive and irrelevant particulars, a state of affairs which is not permissible and which has been deprecated, particularly in libel actions, for many years: see for example, Associated Leisure v Associated Newspapers Ltd [1970] 2 QB 450 and Atkinson v Fitzwalterand Ors [1987] 1 All ER 483. Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it. As Lord Woolf pointed out in McPhilemy v Times Newspapers Ltd [1999] All ER 775 at 793c, a loose and ineffective pleading can achieve directly the opposite effect from that which is intended by obscuring the issues rather than providing clarification. In our judgment this is what has happened here, and we do not think the problem is curable by a request for further information or by simple pruning.
There are difficulties in managing a case justly to which a loose and ineffective pleading will give rise at each stage of the litigation. These include at the reply stage when a claimant must specifically admit or deny the allegations against him, giving the facts on which he relies: see CPR 52 PD 19 para 2.8, when disclosure takes place, when witness statements are prepared, and at the trial itself which may take place before a jury. Time and money will almost inevitably end up being wasted over matters which have little to do with the overall merits of the litigation [49] - [50].
39 With respect, that is the approach I would also assess as appropriate to follow on this application, necessarily recognising a high level of curial caution to be exhibited, towards not attempting to resolve at an interlocutory level, underlying disputes over what are, ultimately, disputed questions of fact - that of their very nature must require a proper resolution finally at a trial.
Disposition of challenges to FREAD justification/s 25 pleas: first and second publications
40 The plaintiffs' in principle objections are raised under a lengthy schedule of objections directed against defence pars 5.4 through 5.37, found appended to the plaintiffs' written submissions, of 11 June 2015.
41 By isolated paragraph attacks, the plaintiffs have assembled many challenges. A number of the individual sub-paragraphs in the par 5 particulars look capable, viewed on their own, of being impugned as raising potentially vague, tenuous or possibly irrelevant material, from a justification defence perspective. For instance, see:
5.5 In mid-2010 YAC (sic) those negotiations had reached an impasse.
…
5.7 FMG provided funding for a barbecue to be provided at the meeting.
42 But, on my view, the isolated, stand-alone conceptual scrutiny of individual paragraphs, which has been deployed towards those attempts against the second defendant's current justification plea particulars, is not conceptually appropriate. It is, in my view, an approach that is far too legalistic, in these circumstances.
43 In a context of assessing the defamatory imputations which he complains have caused injury to his reputation by wrongful suggestions of alleged covert conduct by Mr Gallagher, the imputations to the effect that Mr Gallagher was, in truth, acting to further the interests of FMG, manipulating WMYAC, being a traitor to WMYAC, wanting WMYAC to remain impoverished whilst pretending to assist that organisation, secretly assisting FMG and working as FMG's 'inside man' whilst engaged as a consultant to the WMYAC, inevitably place a large sector of Mr Gallagher's professional life necessarily into focus.
44 In that context, taken as a whole, I consider there is enough factual defence material raised overall found within the second defendant's particulars of justification, to potentially answer and sustain as substantially true, some or all of the imputations complained of, if the contended justification defence particulars are made good factually at a trial.
45 When the particulars of justification are read without undue legalism in aggregate, there emerges some factual material as a basis at this time, in my view, for ostensibly legitimate defence arguments as to justification and substantial truth to advance, in order to be ventilated at a trial, to resist the plaintiffs' defamation causes of action brought upon the various publications.
46 As one brief illustration, I refer to the second defendant's justification particulars 5.16 and 5.17, concerning alleged conversations as between Mr Gallagher and another person (Mr S), with that person being said to have shared a house at Point Sampson with Mr Gallagher for some months. By particular 5.16, it is contended that in April 2011 there was a conversation between Mr S and Mr Gallagher at their house to the effect:
MR GALLAGHER: FMG always get their land access agreement signed one way or another.
MR S: What do you mean?
MR GALLAGHER: FMG always use an inside man to work hands on with the Aboriginal group to win their hearts and minds.
47 A further conversation between the same persons (which is clearly to be read with what preceded it) is then related under particular 5.17, in these terms:
MR GALLAGHER: I resigned from FMG last Christmas and I call myself a consultant for appearances only, so that I can deny being an FMG employee and avoid FMG and myself being criticised for interfering with and influencing the Yindjibarndi community.
MR S: What possible benefit can FMG gain from having you covertly work for them in Roebourne with the Wirlu Murra?
MR GALLAGHER: Plenty. Just look at how FMG successfully obtained land access agreements from the Nyiyaparli people and the Palyku people.
48 More justification particulars, seen variously collected up to par 5.37, are then broadly assembled together to support the flavour of a substantial truth contention that, in effect, Mr Gallagher was, at relevant times, secretly acting as some sort of 'double agent' for FMG, he being then formally engaged as a consultant for WMYAC but, in truth, it is put, secretly acting to primarily advance FMG's conflicting interests. This raises an underlying clash over disputed facts.
49 It should be unnecessary to say so, but I will say it now expressly just in case, that I am not presently rendering any final factual determinations about the merits or demerits of the justification defence's underlying issues of fact. At this point I am only assessing the coherency of what has been assembled under the justification defence's particulars. Beyond that, I also repeat that I am not weighing the individual justification paragraphs on any segregated, stand-alone basis. I am weighing their aggregated content as a matter of overall impression.
50 Nor am I evaluating the pleas on a basis that they must necessarily present now in their formulation as providing admissible evidence at a trial. That approach would also be too legalistic at this level. Plainly, some credible evidence from Mr S at a trial would seem to be required to elicit the adverse admissions attributed under the justification particulars, contended as having been made to Mr S by Mr Gallagher. But that will be for later, if the action advances that far.
51 Mr Gallagher, through his solicitors, under written submissions of 24 August 2015, has summarised, in effect, his core challenge against the justification particulars, as follows:
13. The particulars remain irrelevant to the imputations to be met, vague and in most cases, conclusionary - not because the second defendant has failed to state the evidence by which the fact will be proved (being the assumption drawn by the second defendant in submissions) but because the particulars do not plead material facts. Speculative and conclusionary assertions are pleaded instead.
14. It is not practical to address the issues with each of the 37 particulars individually.
15. Taking 5.4 as an example, 'pursuant to the right to negotiation the Yindjibarndi Aboriginal Corporation (YAC) and Fortescue Metals Group (FMG) engaged for some time in negotiations in respect of the proposed land access agreement.' Aside from the particular not having any bearing on the imputations to be met, that the parties engaged for some time in negotiations is not permissible.
16. To take 5.5 as a further example, 'in mid-2010 YAC (sic) those negotiations had reached an impasse.' Again, putting aside the lack of relevance to the imputations to be met, it is not permissible to plead that negotiations reached an impasse. (emphasis in original)
52 I would reject, taking a holistic view of what has been provided, Mr Gallagher's contention concerning the making of only speculative or conclusionary assertions and a vitiating lack of material facts. On my assessment, there is enough factual detail provided at this point to understand what the second defendant is foreshadowing to lead as evidence at a trial, by way of his justification defence. No doubt witness statements or witness summaries will follow at some later point, if the action progresses to a trial. Yet chapter and verse evidence, akin to what is found in a witness statement, is seemingly being demanded, in effect, at this time by Mr Gallagher and in admissible form. That is the problem. The evidence in the trial is not presently required to support the justification plea particulars at this time.
53 Each defamation case is different. An assessment as to the adequacy of what is provided as particulars of justification in any defamation action undoubtedly requires a bespoken evaluation. Here there is enough defence information provided, in my view. Mr Gallagher may be wholly unimpressed by what is foreshadowed at this time. But the factual merits of what is currently presented by the justification particulars presents to me as a matter for a trial.
54 The in-principle defect conceptually undermining the plaintiffs' interlocutory challenge this time is that it seeks to wholly isolate, then pick off one by one, each of the particulars as being insufficient to support a plea of justification, as regards a particular imputation. That, on my assessment, is the incorrect evaluative approach, as a matter of principle. The materials assembled under particulars 5.1 through 5.37 need to be evaluated as a whole. Some of the areas indicated by the justification particulars will have greater or lesser importance towards the overall end product.
55 On my overall assessment, the justification end product here, if proven at trial, is arguably capable of being assessed as substantiating the imputations complained of by Mr Gallagher in respect of the first and second publications, by reference to the imputations he would extract under REASOC pars 6 and 9 respectively.
56 Overall, there is enough material assembled, on an assessment of it as a whole, taking a non-legalistic approach, to potentially support and sustain at a trial, an answering defence plea that Mr Gallagher was engaged by and held himself out as ostensibly acting in the interests of WMYAC as its consultant, yet in truth was really acting to advance the interests of his former employer, FMG. In other words, Mr Gallagher was effectively acting as some kind of 'double agent' for FMG. The ultimate factual merits of that base contention as a matter of defence will need to be finally ventilated and evaluated factually, at the trial. If that justification defence is not established at the trial, then some prospect arises of an unsuccessful justification plea being assessed as an aggravation of the plaintiffs' damages
Third publication: justification/s 25 of the Defamation Act
57 I move to the third publication which is complained of as being defamatory by Mr Gallagher, and also by the second plaintiff, Ms Maher (see REASOC par 12 concerning Mr Gallagher, then par 13 concerning Ms Maher).
58 Defence pleas of justification, alternatively substantial truth pursuant to s 25, are put forward again, at par 17 of the FREAD.
59 Mr Gallagher has raised four distinct allegedly defamatory imputations. The justification particulars as are seen assembled under FREAD pars 17.1 through 17.3, on my assessment, arguably engage against only one of those four imputations raised by Mr Gallagher out of the third publication, namely, that Mr Gallagher:
12.1 knowingly caused a false statutory declaration to be signed by Mr Woodley.
60 On my assessment, the particulars under FREAD pars 17.1 through 17.3 fairly assessed globally (as indications of a class of evidence to be adduced on the subject imputations complained about) are factually arguable towards showing truth of the REASOC par 12.1 imputation.
61 But no further justifications/s 25 substantial truth pleas appear to be raised under FREAD par 17, beyond that attempting to answer REASOC par 12.1.
Fourth publication - justification/s 25 of the Defamation Act
62 In the fourth publication complained of, it can be seen by par 17.1 and 17.2 of the REASOC that the other plaintiff, Ms Maher, raises two natural and ordinary meanings about which she complains, namely that she:
17.1 was the subject of a criminal investigation by the High Court of Australia; and
17.2 was guilty of committing various improprieties whilst she was the State Manager of the NNTT.
63 By par 25 of the FREAD there is now seen a plea of common law justification and the allied invocation of s 25 of the Defamation Act, that is raised only in respect of the par 17.2 imputation.
64 This plea is then attempted to be supported under two particulars given as to justification:
25.1 The second plaintiff was one of the subjects of an external investigation ordered by the President of the National Native Title Tribunal to be performed by external consultants.
25.2 The second plaintiff and her husband, the first plaintiff, had an interest in consultancy companies MGA Consulting, RCD Consulting, and SillyTown Pty Ltd that performed consultancy work for WMYAC at a time when WMYAC was involved in matters before the Tribunal and she did not disclose those interests to the Tribunal.
65 On my assessment, it is plain that those provided particulars of justification (or substantial truth) as given under pars 25.1 and 25.2, cannot, by any rational view, arguably go far enough to prove at a trial, the truth of the imputation that Ms Maher was 'guilty of committing various improprieties'. An alleged non-disclosure of interests in private consulting companies would not, without much more, support a plea of substantial truth, in relation to that imputation.
66 Nor could the ordering of an external investigation by external consultants sensibly bear upon the proving at a trial, of the substantial truth of the imputation contending Ms Maher was 'guilty' of various improprieties.
67 My evaluation of the justification particulars as are provided currently under par 25, is such that they demonstrably must fail at the (onerous) assessment threshold at this point, of being seen as wholly unarguable.
68 Hence the FREAD par 25 plea must be struck out.
69 Given the highly unsatisfactory prior history of late and inadequate defence pleadings, there will be no leave to re-plead any further justification defence to this imputation.
70 In short, par 25 of the FREAD will now be permanently struck out and with a denial of any further leave to plead a justification defence to that imputation.
Fourth publication - so called 'Hore-Lacy' defence
71 In the neighbourhood of par 17 of the REASOC and the fourth publication, it is convenient to deal with the attack put against the attempted response to the imputation presenting under REASOC par 17.1.
72 A defence plea assembled under par 24 of the FREAD is given the description 'Hore-Lacy meaning'. The ensuing plea reads:
24. The second defendant says that if the fourth publication conveyed an imputation about the second plaintiff, which is not admitted, it is not the imputation pleaded at 17.1 of the re-amended statement of claim, but rather the fourth publication meant and was understood to mean that the second plaintiff was one of the subjects of an external investigation of National Native Title Tribunal staff and in that meaning it was a matter of substantial truth.
73 No following particulars are provided to elaborate upon this plea.
74 That conceptual deficiency however, is relatively minor, viewed in the scheme of what is otherwise put under par 24.
75 The imputation raised under par 17.1 (ridiculous as it otherwise would present to those with a modicum of legal insight) has not been challenged to date as being incapable of being arguably defamatory, or as a meaning not flowing out of the words used in the fourth publication.
76 As formulated, par 24 of the FREAD does not sit under the penumbra of the REASOC par 17.1 imputation. It is not, as formulated, an answering imputation raising a connected but distinct imputation to be justified, raising some lesser gradation of imputation in its overall seriousness, applying the criteria established as applicable in this State for legitimately justifying alternate imputations, as was explained by the Court of Appeal in West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 [31] and Buckeridge v Walter [2010] WASCA 134 [33], applying Elliott.
77 The FREAD par 24 imputation as formulated is substantially different to the plaintiffs' imputation. This is not conceptually permissible in Western Australia, and it must be disallowed. FREAD par 24 fails to disclose any arguable defence and, consequently, will be struck out.
78 Similarly, in the face of the unsatisfactory prior defences pleading history, there will be no leave to re-plead any further alternate defence justification in answer to the imputation complained of.
Fifth and sixth publications - justification
79 I turn to the fifth and sixth publications, noting the imputations complained of by Mr Gallagher are to be found under pars 20 and 23 of the REASOC (with Mr Gallagher complaining of these imputations from par 20 and then seven distinct imputations in par 23 as regards the sixth publication).
80 There is a justification/s 25 Defamation Act response found under the FREAD by par 29 and par 33, essentially repeating again the earlier justification particulars, already seen before, under FREAD pars 5.1 to 5.37.
81 This is a conceptual and vitiating difficulty identifiable in this defence plea approach.
82 As implemented, there is seen now a rolled up justification defence plea, effectively throwing back all 37 earlier subparagraphs as the answer against each or any of ten distinct defamatory imputations raised by Mr Gallagher, under his REASOC par 20 and par 23.
83 This rolled together defence technique to multiple imputations approach is imprecise, confusing, wasteful and, ultimately, wholly unsatisfactory as a response. Although a rolled together particularised justification response to a plaintiff's imputations might, occasionally, be tolerably clear enough to be permissible (I have implicitly accepted it here, in respect of the first and second publications, but where the imputations that are complained of are broadly similar), that is not the accepted norm. Generally, that rolled together particularisation technique will not be acceptable, and especially so where there are multiple imputations complained of in publications which are of a diverse character.
84 The par 23 REASOC imputations range from defamatory meanings about Mr Gallagher, including imputations of 'fraudulent conduct', as to he 'being FMG's "inside man"', 'engaging in "serious misconduct"', his 'falsely discrediting people who question him' and also, his 'improperly milking WYMAC for additional material benefits'. What is conceptually required here by way of a properly organised justification defence response to what are seven largely discrete imputations, is the discrete assembly of answering justification materials, severally responding to each imputation that is complained about.
85 By that observation, I am of course not closing off the potential for use of an express and clear incorporation, by reference, of the information in the sub-paragraphs of earlier materials. But that has not been attempted here. Rather, I am presented with something of a 'lucky dip' to find what is relied upon to answer any particular meaning.
86 At present, the plea of justification/substantial truth in response to seven imputations complained of simply points to a warehouse of much factual material and then asks, in effect, Mr Gallagher (and the court) to rummage around in the warehouse for what might turn up there somewhere. The problem is that the inventory is too vast. Clearly, not everything is intended to answer each imputation. A rummaging around defence approach, selecting here and there, but sometimes not, is not helpful or satisfactory on this occasion, given the character of Mr Gallagher's multiple contended imputations.
87 Because of an unduly disorganised assembly of materials problem alone, pars 29 and 33 must be struck out as embarrassing.
88 But since I assess the underlying problem to be one of a lack of required, intellectual engagement by the defence plea against each discrete defamatory imputation, to be achieved by the proper assembly of the appropriate responsive justification materials (that may be drifting around there somewhere), I will not, in these instances, inhibit the second defendant from further amending in future to plead a justification/substantial truth defence, in respect of the fifth and sixth publications.
Seventh publication: justification and s 25 of the Defamation Act
89 The REASOC by par 26 contends for six popular or false innuendos arising concerning Mr Gallagher. Meanings complained of as being defamatory include contentions as to his 'gross misconduct', 'nepotism', 'acts of corruptions', 'bullying and intimidation', 'engaging in fraud' and 'pressuring and the coercing of a Mr Woodley into signing a false statutory declaration'.
90 Again, the justification/substantial truth plea under par 37 of the FREAD is nakedly presented as a global, rolled up response to the six distinct imputations collected under par 26, on the basis of simply repeating the assembled particulars under pars 5.1 through 5.37. This again is not good enough.
91 Perhaps the second defendant's legal advisers were suffering a level of exhaustion at this point, in terms of responding to an overwhelming amount of publications and imputations complained of by Mr Gallagher. I have a degree of personal sympathy with that position, if that was the case. But Mr Georgatos is the journalist responsible for publishing all this material over time and so it must be properly addressed, demanding and time consuming as that task may be.
92 The present justification response is unacceptable, essentially for the reasons I have given in respect of the sixth publication. There will, however, be leave to amend here, as the same disorganisation problem is manifesting.
Eighth to fourteenth publications: justification and s 25 of the Defamation Act
93 The eighth through fourteenth publications complained of, effectively drew what are mutatis mutandis responses, seen under pars 39 through 45 of the FREAD.
94 By reference to the REASOC, the eighth publication can be assessed in terms of the same imputations complained of to be, in effect, an analogue of the imputations said to arise under the first publication.
95 They are to be evaluated similarly: see par 39 of the FREAD. In short, the answering plea survives.
96 The ninth publication is addressed by the REASOC at between pars 31 to 33. The imputations complained of under par 32 are there seen to be an analogue of the same imputations complained about, arising from the second publication: see REASOC par 9 (par 32 equals par 9). They are evaluated in like fashion. So, those pleas of justification and substantial truth survive.
97 The tenth, eleventh, twelfth, thirteenth and fourteenth publications, are analogues of the REASOC pleas concerning the third, fourth, fifth, sixth and seventh publications. They each receive the same outcomes.
Media publications - justification
98 The plea under par 50 of the REASOC, concerning the so-called Media Publications, as alleged republications, effectively re-ventilates earlier pleas, earlier seen under pars 28, 31, 34, 38, 41, 44 and 47 of the REASOC.
99 Those pleas in turn replicate already encountered grievances as regards the contended imputations under the first, second, third, fourth, fifth, sixth and seventh publications.
100 The earlier outcomes which I have now reached concerning the justification/substantial truth pleas carry through in each instance to these correlative Media Publication pleas.
First and second defamatory emails: justification
101 That leaves for evaluation the plea under REASOC par 62, concerning a so-called first defamatory email, with three resulting popular/false innuendos being alleged under REASOC pars 63.1 through 63.3.
102 There is also a so-called second defamatory email of 11 February 2013, pleaded under par 65 of the REASOC, with imputations complained of then pleaded as popular or false innuendos at par 66 (four imputations effectively are complained of).
103 Responses to these emails pleaded by way of justification and substantial truth seen under the FREAD are seen under pars 49 and 53, respectively. What is manifested here, effectively, is an attempted incorporation by reference of the earlier justification particulars imported from FREAD pars 5.1 through 5.37, and then coupled to the FREAD particulars under pars 17.1 through 17.3.
104 For reasons I have already now articulated in respect of the fifth and other publications, the rolled up response of justification approach that is seen deployed here by the second defendant, is unsatisfactory and unacceptable.
105 It will be necessary to rework this material properly, by reference to identifying clearly what is put by way of answer in defence against each discrete imputation that is raised. That has not presently been attempted. The result is embarrassingly unsatisfactory from the perspective of the running of an orderly trial in future.
106 But again, there will be leave to amend here, given that this is essentially an inadequate assembly of factual information problem (at this stage).
107 That deals with the substantial component of the plaintiffs' application to strike out, in terms of attacks on the particulars of justification (substantial truth) provided to the publications. I have also dealt with and upheld the challenge against the so-called 'Hore-Lacy' defence under par 24 of the FREAD - which must be upheld.
108 Having reached those conclusions, I proceed to evaluate the balance of the plaintiffs' attacks, starting with complaints assembled concerning the second defendant's common law defence pleas of qualified privilege and by his accompanying statutory defence plea, raising s30 of the Defamation Act.
Attacks against pleas of qualified privilege
109 Under the FREAD defence of 21 April 2015, pleas of qualified privilege invoking the statutory defence pursuant to s 30 of the Defamation Act have been raised in respect of the first, second and third publications complained of by the plaintiff.
110 Statutory qualified privilege pleas, by way of raising an attempted defence against the first publication, are found at par 7 of the FREAD and in its sub-pars 7.8 through 7.11 (there seems to be a numbering error in the assembly of the FREAD document, by the unintended omitting of any subpars 7.1 through 7.7 - however, in the overall scheme of things, that is a relatively minor transgression, barely worth mentioning).
111 Similarly constructed privilege pleas are then found in the FREAD under par 13 (responding to the defamation complaints of Mr Gallagher by reference to the second publication).
112 Likewise, as regards the third publication complained of, there is found an attempted invocation of s 30 of the Defamation Act, by par 20 of the FREAD.
113 The overall structure of the defence responses seen under FREAD pars 7, 13 and 20 are similarly constructed (albeit subpar 20.4 appears to be uniquely raised). Those same pleas are all then incorporated by reference, under FREAD pleas found at pars 39, 40 and 41 concerning, respectively, the eighth, ninth and tenth publications. Materials relied upon by the second defendant are globally repeated mutatis mutandis as regards the first, second and third publications respectively - roping in the statutory pleas of qualified privilege.
114 There is a further plea of both statutory qualified privilege plus common law qualified privilege seen at par 50 of the FREAD - which in its assembly forms a part of the second defendant's answer to Mr Gallagher's complaint concerning the publication by way of email from the second defendant of 11 February 2013 to various email addressees, termed 'first defamatory email'. The response under par 50 of the FREAD is to invoke both common law qualified privilege (see par 50.1) as well as statutory privilege via s 30 (see pars 50.2 and 50.3).
115 There is, therefore, something of a unique dimension concerning the response under FREAD par 50, as regards the first defamatory email. That email publication itself is found as an attachment to the REASOC at between pages 88 and 96. Since it defies any ready summary, I adopt the course once again of simply appending it as a schedule at the end of these reasons.
116 The email was sent to Mr Adams (of WMYAC), to Messrs Power and Elliott, and to Ms Ball (of FMG). It is complained of by Mr Gallagher (who was also a recipient of the email).
117 It is convenient to deal with the attack upon par 50 of the FREAD at the outset. On my assessment, the challenge must be upheld.
118 Under a first tranche of written submissions filed on behalf of Mr Gallagher (pars 32 to 36, as regards common law qualified privilege) multiple complaints were directed against this plea, including, as I attempt to summarise them:
(a) the recipients' roles at FMG are not pleaded;
(b) it is therefore not possible to assess whether the recipients had a duty or interest which coincides with that of the publisher of the email, Mr Georgatos;
(c) the assertion that Mr Gallagher was acting as an agent of FMG is conclusionary;
(d) the reference to 'decision [sic] within the Yindjibarndi community' is vague;
(e) the reference to 'senior roles of publishees within FMG' is unacceptably vague;
(f) FMG's role in relation to the 'Yindjibarndi Land Access Agreement' is not articulated;
(g) the phrase 'responsibility of FMG for the divisions within the Yindjibarndi community' is equally vague;
(h) these grievances are summed up on the basis that they are 'simply vague and conclusionary allegations'.
119 In response to those multiple grievances, Mr Georgatos' first tranche of written submissions (under pars 24 through 26) apart from pointing out a typo in respect of the word 'divisions', responded by raising only two points. The first was that:
24. The occasion of privilege is not dependent on the exact roles played by each of the officers of FMG to which the email was directed. All of them, as officers of FMG, have had the relevant interest.
120 Second, it was said:
25. The fact that (Mr Gallagher) was acting as an agent for FMG is a fact in issue in the proceedings but that does not make the statement 'conclusionary'. It will be proved by other particulars, including the admissions of (Mr Gallagher) himself.
121 Responding to that, Mr Gallagher's solicitors under a second tranche of written submissions of 24 August 2015 (pars 23 - 25) take strong issue with the response concerning the interests of particular 'officers' at FMG needing to be articulated with greater precision and clarity. They say that 'not every officer of FMG will, by virtue of being an officer, have the requisite interest'. They also take issue (par 24) with the response concerning Mr Gallagher being alleged as acting as an agent for FMG, being a fact in issue. They said:
The pleading, as presently formulated, is a bare assertion unsupported by particulars and cannot stand.
122 But issue is then taken in further written submissions filed on behalf of Mr Georgatos of 1 September 2015 (par 8), where it is now said to be permissible to refer to senior officers of FMG from a perspective of them having a sufficient reciprocal interest in and/or duty to 'consider the facts, matters and circumstances surrounding the Yindjibarndi Land Access Agreement, the actions of (Mr Gallagher) undertaken as their agent and the divisions within the Yindjibarndi community'.
123 Unlike the FREAD pleas on behalf of Mr Georgatos invoking statutory privilege under s 30 concerning the first, second and third publications, distinct legal considerations are applicable in respect of the so-called first defamatory email of 11 February 2013 which, on my assessment, are unique. An evaluation needs to commence from the content of the email itself, effectively framed as a series of randomly assembled questions that were despatched by Mr Georgatos by email and containing what would appear to be excerpts from his articles appearing, or foreshadowed to appear, in the National Indigenous Times.
124 An assessment of this email from a coherence perspective is something of a challenge in its own right. Many criticisms seen rendered concerning the plea by Mr Gallagher's legal representatives present to me as being open.
125 But the major structural deficiency is that the necessary building blocks for proving a basis for a defence of common law qualified privilege, which is dependent upon showing a reciprocity or a community of interest as between communicator and recipient of the information, to me, is largely missing for this email. Indeed, showing a required platform in that respect has only been skated over in the FREAD, by the most ephemeral of pleas, under par 50.1 - which I assess as wholly inadequate: see Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 249 CLR 534 at [8] (French CJ, Crennan, Kiefel and Bell JJ) referring to showing the 'community of interest'. That essential pre-requisite is absent, bringing down the whole plea with it.
126 Similarly, as regards pleas concerning the statutory defence, under s 30 for the first email, the material assembled under FREAD subpars 50.2 and 50.3 is not, on my assessment, even arguably capable of engaging against, let alone meeting, the challenge of demonstrating a satisfaction of the reasonableness thresholds required to be arguably met, under s 30(1)(c), s 30(2) (reasonable grounds), and s 30(3).
127 I reach that conclusion concerning s 30 in contradistinction to the opposite position I have reached in respect of the other FREAD s 30 pleas raised in defence against the first, second and third publications, as I explain below.
Other s 30 FREAD pleas
128 As regards the first, second and third publications and pars 7, 13 and 20 of the FREAD, it can be seen that those pleas are raised in respect of the newspaper articles published in the National Indigenous Times respectively, as regards a first publication, on 31 October 2012, for the second publication on 28 November 2012, and for the third newspaper publication on 6 January 2013.
129 On my assessment, again at the interlocutory level, concerning an ascertainment of respectable arguability, there is enough material assembled under those paragraphs for them to legitimately stand for a trial as pleas of statutory qualified privilege. No case authority was cited to me on the application concerning the position of newspapers and need for the satisfaction of s 30(1)(a) as regards the recipient of the publication holding an 'interest or apparent interest' in having information on some subject. That topic would appear to raise difficult conceptual questions that still remain unanswered subsequent to the enactment of the uniform Defamation Acts across Australia.
130 Criticisms of these paragraphs are briefly assembled by Mr Gallagher's legal representatives under pars 28 through 31 of his first tranche of written submissions of 11 June 2015, then in pars 20 through 22 of his second tranche of written submissions of 24 August 2015. They are not, on my assessment of them, fatal to the FREAD invocations of s 30 of the Defamation Act under pars 7, 13 and 20 of the FREAD. For instance, failure to seek a response from a person who is the subject of a defamatory publication before publication is one attack that is made. Of course, such an omission presents a relevant consideration to be weighed overall at the trial, but that is only one of a multitude of different factors that may be taken into account by a court overall at the trial, under s 30(3) (see s 30(3)(h)). The defence evaluation exercise undertaken by the court under s 30(3) at trial will be an overall contextual assessment of the reasonableness of the defendants' publishing conduct 'in the circumstances'. The fact that some or other of what are 10 differently listed considerations by s 30(3) may be present, whilst some others are not, is currently neither here nor there, from a pleading strikeout perspective. It is the overall assessment by the court as to reasonableness in all the circumstances of the case that is required at the trial. This cannot be pre-empted at the interlocutory stage where, as here, there is a respectable amount of factual material provided to support the arguability of the plea.
131 On my assessment, what has been currently assembled under FREAD pars 7, 13 and 20 survives to be finally evaluated at a trial. Those outcomes are repeated for pars 39, 40 and 41.
132 However, for the reasons earlier given, FREAD par 50 must be struck out as failing to disclose an arguable defence.
133 Bearing in mind the unsatisfactory prior history of the defendants' pleadings, there will be no further leave to amend to raise pleas of qualified privilege, or s 30 statutory qualified privilege, in respect of that email.
FREAD pleas of honest opinion (s 31 of the Defamation Act) and common law fair comment
134 The FREAD also advances pleas under pars 6, 12 and 19 (replicated for subsequent publications) of fair comment at common law and/or honest opinion on a matter of public interest pursuant to s 31 of the Act. These pleas are expressly pleaded to be based on 'proper material'.
135 Under FREAD pars 6.8, 12.16, and then 19.1.4 through 19.1.14, the so-called proper materials contended to support the asserted comments/honest opinions, are identified as regards each of the first, second and third publications respectively. These extend to FREAD pars 39, 40 and 41 for the 8th, 9th and 10th publications respectively.
136 Notwithstanding the as-expressed objections of the plaintiffs, I would assess the identification of that 'proper material' (the phrase deployed under s 31(1)(c), s 31(2)(c), s 31(3)(c) and s 31(6) of the Defamation Act) as being also a demarcation of the intended 'facts', raised for the purposes of raising an accompanying common law fair comment plea.
137 It was not submitted to me on the strikeout application that any of the matter raised as 'proper material' was not correctly stated, in the respect of its extraction as facts, from the first, second or third publications, or that they were not facts 'otherwise notorious', as is pleaded.
138 Otherwise, the criticisms rendered against these pleas of honest opinion and fair comment were very generalised.
139 A minor criticism is made on the first publication response under pars 6.1, 6.3 and 6.5, concerning an alleged 'unarticulated' character of a phrase used by reference to Mr Georgatos concerning comment or honest opinion in his personal capacity 'and in his capacity as a servant or agent of the first defendant'. The criticism is that the relationship has 'not been articulated'.
140 The response to that criticism from Mr Georgatos was:
The servant or agent relationship is plainly that of a journalist writing for a newspaper.
141 The response back to that under the submissions of 24 August 2015, on behalf of Mr Gallagher (par 26), was that:
The relationship requires pleadings.
142 I consider that a journalist/newspaper underlying relationship is obvious from the overwhelming amount of material otherwise assembled under the pleadings to date. The criticism is petty and will be dismissed.
143 More substantive are criticisms concerning the capacity of the assembled facts (or proper materials) under pars 6.8, 12.8 through 12.14, and 19.1.4 through 19.1.14 to support the asserted comments or honest opinions, by reference to matters of public interest, as identified in the FREAD.
144 On my evaluation of these submissions advanced on the part of the plaintiffs (see pars 39 and 41 of submissions of 11 June 2015):
(a) I am not persuaded that the public interest subject matters, as identified under pars 6.7, 12.15 and 19.1, are so vague as to not arguably meet the criteria of being a public interest topic, for the purposes of supporting the common law defence or, alternatively, by constituting matters of arguable public interest, for the purpose of meeting s 31(1)(b) or s 31(3)(b); and
(b) nor am I persuaded that there has been any major or embarrassing omission in respect of the attempted invocation of s 31(5)(a) under the FREAD.
145 As I assess the statutory defence pleas sought to be invoked under pars 6, 12 and 19 of the FREAD, it is either s 31(1), s 31(2) or s 31(3) which is sought to be invoked by way of statutory defence (not s 31(5)).
146 In terms of more substantive challenges, by reference to the assembled proper materials, under pars 6.8 and 12.8 through 12.14, being assessed as 'either irrelevant, conclusionary or not particulars of truth' then, on my assessment (which I emphasise once again is an assessment only upon the interlocutory arguability of these pleas at this time), the materials seen under par 6.8 and its subparagraphs as regards the first publication viewed against the REASOC imputations under pars 6.1, 6.2 and 6.3 are satisfactorily responsive in respect of those imputations.
147 Likewise, the materials presently assembled under FREAD par 12.16 (pars 12.16.1 through 12.16.5) do arguably deliver a factual edifice of proper material to support the comments or opinions responding to imputations under pars 9.1 through 9.4 of the REASOC.
148 However, I must reach the contrary conclusion as regards the arguable adequacy of 'proper material', or facts (for the purposes of a common law defence as assembled under pars 19.1.4 through 19.1.14), as regards the responding to the imputations contended for by Mr Gallagher arising out of the third publication, under his par 12, and also by Ms Maher, under par 13 of the REASOC.
149 Four imputations complained of by Mr Gallagher under REASOC par 12 are, namely, that he:
12.1 knowingly caused a false statutory declaration to be signed by Mr Woodley;
12.2 is a racist;
12.3 abuses the legal system to silence any journalist who seeks to expose him; and
12.4 is an anthropologist with no credibility.
150 For Ms Maher, the single imputation she complains of, under par 13 of the REASOC, is that the publication meant, concerning her, that she, 'as State manager of the NNTT, gave illegal favours to mining companies'.
151 Save for imputation 12.1, the residue of 'proper materials' seen as collected under pars 19.1.4 through 19.1.14, on my assessment, provides no basis at all to support contentions, even arguably, as to Mr Gallagher being 'a racist', his 'abuse (of) the legal system to silence journalists', his being 'an anthropologist with no credibility' or, as regards Ms Maher, that she 'gave illegal favours to mining companies'. The underlying required edifice of arguable fact (proper materials) to sustain such imputations as fair comments, or honest opinions (of Mr Georgatos), on my assessment, is wholly absent.
152 It will be seen that par 19 of the FREAD only purports to address pars 12.2, 12.3, 12.4 and, as well, par 13 (noting that FREAD par 12.1 is the subject matter of the justification plea under FREAD par 17 and which I found earlier survived).
153 Accordingly, par 19 of the FREAD must be permanently struck out in its entirety as failing to disclose an arguable defence(s).
154 There will be no leave to re-plead as regards common law fair comment or a statutory plea of honest opinion pursuant to s 31 of the Defamation Act, bearing in mind the unsatisfactory pleading history leading up to the present application.
155 The outcomes noted for FREAD pars 6, 12 and 19 above are repeated for pars 39, 40 and 41.
156 Finally, I turn to the challenges against a plea by way of mitigation of damages, seen under par 56 of the FREAD.
Challenge against FREAD par 57.1 [sic- 56.1]
157 Under the FREAD heading 'Mitigation', the relevant plea with its introductory preface in par 56 is as follows:
I [sic, In] so far as any matter may be found to have been published unlawfully, the second defendant relies on the following facts, matters and circumstances in mitigation of damages:
57.1 [sic, 56.1] that the plaintiff [sic, first plaintiff - ie, Mr Gallagher] does not enjoy a good reputation as an anthropologist in relation to Indigenous land use matters.
158 As clarified by the written submissions, this would appear to be an attempted plea of bad reputation on behalf of Mr Georgatos against the reputation of Mr Gallagher.
159 Aside from numbering and nomenclature identification problems (which are self-evident and should be corrected, if the plea survives) the substantive challenge made under par 48 of the submissions of Mr Gallagher of 11 June 2015 is that the pleaded imputations do not go to either of the plaintiffs' reputation as anthropologists.
160 Reference is made in support to my reasons in Findlay v Grimmer [No 3] and to the cases referred to in that decision. Mr Gallagher's submission continues:
This plea is defective and an improper attempt to adduce general evidence of bad reputation [129].
161 Clearly, the FREAD plea is only directed at Mr Gallagher, as is now confirmed.
162 More substantively, however, the FREAD par 57.1 (sic, 56.1) plea that Mr Gallagher 'does not enjoy a good reputation as an anthropologist in relation to Indigenous land use matters' is not, as I would assess it, a sufficient plea of bad character, or of bad reputation. Whilst the present lack of any provided particulars in that respect would be capable of being redressed by some following particulars, a greater in principle deficiency manifesting is more terminal. The problem is that absence of a good reputation (as pleaded) does not equate conceptually to the manifestation of a bad reputation.
163 I do not accept the grievance that Mr Gallagher's imputations complained of arising out of the publications and other materials said to defame him do not go to his reputation as an anthropologist. Recall, for instance, the imputation under REASOC par 12.4, vis-à-vis the third publication, which is that this third publication is taken to carry a natural and ordinary meaning that Mr Gallagher (REASOC par 12.4) 'is an anthropologist with no credibility'.
164 Nevertheless, the plea as formulated by reference to the absence of a good reputation as an anthropologist is conceptually inadequate and misconceived.
165 A tangential response under the written submissions of 11 August 2015 on behalf of Mr Georgatos was, referring to Scott v Sampson (1882) 8 QBD 491:
It is not improper to adduce general evidence of bad reputation. Indeed, that is the only kind allowed (par 30).
- That response led to the contention of Mr Gallagher under his submissions of 24 August 2015 that:
27. This is not the position at law or in accordance with Scott v Sampson (1882) 8 QBD 491 being the case relied upon by [the] second defendant to support this contention.
On principle, therefore, it would seem that general evidence of reputation should be admitted, and on turning to the authorities previously cited it will be found that it has been admitted in a great majority of those cases, and that its admission has been approved by a great majority of the judges who have expressed an opinion on the subject.
167 However, Cave J went on to reject, as a second proposed head of admissible evidence, the advocated potential admissibility of rumours or suspicions to the same effect as the defamatory matter complained of. It was now observed of such materials, at page 504:
Unlike evidence of general reputation, it is particularly difficult for the plaintiff to meet and rebut such evidence; for all those who know him best can say is that they have not heard anything of these rumours.
168 Hence, what is admissible in this sphere is evidence of a bad 'general reputation'.
169 At page 505, Cave J rejected a third head of proposed evidence which had been disallowed by the primary judge, Lord Coleridge, namely, evidence of 'particular facts tending to shew the plaintiff's disposition …': see pages 505 - 506.
170 Hence, what is admissible on a mitigation of damage exercise, but which also has an accompanying capacity to increase the level of a plaintiff's damages, if it is unsuccessful, is evidence as to the general existence of a (bad) reputation (but not evidence of particular incidents).
171 At page 495 in Scott v Sampson, Matthew J agreed with the observations of Cave J. Subsequent case authorities are discussed in my reasons in Findlay v Grimmer [No 3] at [126] - [138].
172 It is also clear from the cases that evidence of bad reputation must be relevant to and confined to the sector of the plaintiff's life that is at issue. Here that would mean general evidence of a bad reputation in the area of Mr Gallagher's profession as an anthropologist working in the native title arena, if such general evidence were available.
173 In essence then, the plea currently seen under FREAD par 57.1 (sic, par 56.1) is unsatisfactorily formulated. If there is to be a proper plea of bad reputation, it should be correctly formulated and, notwithstanding what presents as outdated temporal notice criteria under Rules of the Supreme Court 1971 (WA) O 34 r 6 (of the information emerging on notice to the plaintiff, only seven days before the trial), proper and adequate particulars of that very serious plea should, as a matter of sensible modern day case management and general fairness, be provided to accompany any such plea.
174 Since there has obviously been a misconception in the second defendant's legal adviser's respect, in the formulation of this plea, par 57.1 (sic, par 56.1) must be struck out, but there will be leave to re-plead upon a basis that any future plea of bad reputation as is subsequently attempted would need to be properly particularised at the time of its delivery and within a time to be fixed before trial.
Summary
175 Consequently, the FREAD is struck out in the respects I have identified as regards pars 19, 24, 25, 29, 33, 37, 41, 42, 43, 44, 45, 49, 50, 53 and 57.1 (sic, 56.1).
176 There is no leave to re-plead in respect of pars 19, 24, 25, 41, 42, 50 and 57.1 (sic, 56.1).
177 There will be leave to re-plead within 28 days of the publication of these reasons, in respect of pars 29, 33, 37, 43, 44, 45, 49 and 53.
178 As regards the costs of this exercise, my prima facie view is that there have been substantial measures of success and failure on both sides upon this application. The defence plea will need to be amended, but the second defendants' pleas have withstood challenge in many respects. My prima facie view is that the costs of this application should be in the ultimate cause of this litigation with all scale limits lifted given the (exhausting) dimensions of the application. I will hear from the parties about costs, if that is necessary.
179 There should now be a conferral between the parties' legal advisers about the reasons. The plaintiffs' solicitors should then submit to my Associate a (hopefully agreed) minute giving effect to the reasons within 21 days of their publication.
SCHEDULE A
11
8
1