Hall v Hanson
[2017] ACTSC 369
•11 December 2017
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hall v Hanson |
Citation: | [2017] ACTSC 369 |
Hearing Date: | 20 November 2017 |
DecisionDate: | 11 December 2017 |
Before: | Mossop J |
Decision: | The Application in Proceeding, filed on 10 October 2017, is dismissed with costs. |
Catchwords: | TORTS – DEFAMATION – Defences – defence of contextual truth – whether appropriate to strike out contextual imputations prior to trial – qualified privilege at common law – whether privilege established because publication was made to a wide audience – application dismissed – s 136 of the Civil Law (Wrongs) Act 2002 (ACT) |
Legislation Cited: | Civil Law (Wrongs) Act 2002 (ACT), ss 136, 136(a), 136(b) Court Procedures Rules 2006 (ACT), r 425 |
Cases Cited: | Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 Braddock v Bevins [1948] 1 KB 580 State of New South Wales v Williams [2014] NSWCA 177 |
Texts Cited: | Alastair Mullis et al (eds), Gatley on Libel and Slander (Sweet and Maxwell, 12th ed, 2013) |
Parties: | Dean Hall (Plaintiff) Jeremy Hanson (Defendant) |
Representation: | Counsel W Houghton QC & J Hooper (Plaintiff) K Smark SC (Defendant) |
| Solicitors Slater and Gordon Lawyers (Plaintiff) Meyer Vandenberg Lawyers (Defendant) | |
File Number: | SC 237 of 2016 |
MOSSOP J:
Introduction
The plaintiff has brought proceedings claiming damages for defamation against the defendant. The plaintiff is the Secretary of the Australian Capital Territory (ACT) Branch of the Construction Forestry Mining and Energy Union (CFMEU). The defendant was, at the relevant time, the leader of the opposition in the ACT Legislative Assembly. Proceedings against the second defendant, the operator of a radio station, have been settled. The plaintiff claims damages arising out of statements made by the first defendant during the course of a radio interview on 16 March 2016. The subject matter of the interview was a memorandum of understanding between the ACT government and Unions ACT, a peak union body, which contemplated the sharing of information about applications for tenders with the ACT government. The plaintiff alleges that statements made by the first defendant gave rise to the following defamatory imputations:
a.the plaintiff is so untrustworthy, having been convicted of criminal charges, that he must not be given access to company tender documents in his role as the Secretary of the ACT Branch of the CFMEU;
b.the plaintiff is so dishonest, having been convicted of criminal charges, that he will misuse company tender documents if given access to them in his role as the Secretary of the ACT Branch of the CFMEU;
c.the plaintiff is so untrustworthy, now potentially facing criminal charges, that he must not be given access to company tender documents in his role as the Secretary of the ACT Branch of the CFMEU;
d.the plaintiff is so dishonest, now potentially facing criminal charges, that he will misuse company tender documents if given access to them in his role as the Secretary of the ACT Branch of the CFMEU.
By its Further Amended Defence, filed 22 September 2017 (Defence), the defendant has relied upon a defence of contextual truth (Defence [8]), a defence of qualified privilege at common law (Defence [9]), and a defence of qualified privilege for discussion of government and political matters based upon the decision in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 (Defence [10]).
By Application in Proceedings, filed 10 October 2017, the plaintiff has sought to strike out paras [8] and [9] of the Defence pursuant to r 425 of the Court Procedures Rules2006 (ACT), or alternatively, the inherent jurisdiction of the Court.
Applicable principles
The applicable principles were uncontroversial. The test for striking out pleadings was recently summarised in State of New South Wales v Williams [2014] NSWCA 177 at [71]:
The requirement for establishing that there is no triable issue is a demanding one and the power to strike out a pleading on the basis that it discloses no reasonable defence, or is an abuse of process, should be exercised only in plain and obvious cases. The power should not be exercised in cases of doubt or difficulty or where the pleading raises a debatable question of law. Once it appears that there is a real issue, whether of fact or law, and that the rights of the parties depend upon it, a court should not dismiss a defence raising such an issue, either on the basis that no reasonable defence is disclosed or as an abuse of process (see Dey v Victorian Railways Commissioners [1949] HCA 1; 78 CLR 62 at 91; General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; 112 CLR 125 at 129-130; Commonwealth v Griffiths [2007] NSWCA 370; 70 NSWLR 268 at [11]-[12] and Spencer v Commonwealth [2010] HCA 28; 241 CLR 118 at 139-140).
In Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; 79 ALJR 1716 at [6], a majority of the High Court approved the statement of McPherson JA as to the approach to be adopted when an application is made to strike out a statement of claim in defamation proceedings as disclosing no cause of action:
Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.
This approach is equally applicable to the striking out of defences: Channel 7 Adelaide Pty Ltd v Manock [2007] HCA 60; 232 CLR 245 at [33].
As a consequence, if the conclusion is firmly reached that the challenged defences of contextual truth and common law qualified privilege are defective, then there is no justification for not giving effect to that conclusion by striking out those defences.
Contextual truth: Plaintiff’s submissions
The defence of contextual truth is derived from s 136 of the Civil Law (Wrongs) Act 2002 (ACT) (CLW Act) which provides:
136 Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that –
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, 1 or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
The plaintiff makes three points:
(a)the contextual imputation pleaded is not capable of arising “in addition to” the defamatory imputations pleaded;
(b)the contextual imputation is not capable of outweighing under s 136(b) of the CLW Act the seriousness of the pleaded imputations; and
(c)the particulars of the contextual imputation provided are inadequate.
So far as the first point is concerned, the plaintiff submitted that the contextual imputation in this paragraph is not capable of arising “in addition to” the defamatory imputations pleaded by the plaintiff and hence not capable of meeting the requirement of s 136(a) of the CLW Act because it necessarily incorporates the sting of the plaintiff’s imputations. The reason that the plaintiff says that the defendant’s contextual imputation is not capable of arising “in addition to” the defamatory imputation is that in order to be “in addition to” the plaintiff’s defamatory imputations, it must differ in substance from the plaintiff’s imputations. In Fairfax Media Publications v Zeccola [2015] NSWCA 329; 91 NSWLR 341 (Zeccola), McColl JA said that an imputation which is pleaded as an alternative formulation of the very imputation relied upon by the plaintiff could not be one carried “in addition to” that imputation. Rather it must be different in substance from the imputation. The plaintiff then submitted:
The contextual imputation amounts to a general charge against the fitness of the plaintiff’s character. It is derived from the more specific conditions of dishonesty and trustworthiness pleaded by Hall. The contextual imputation begs the question as to why the plaintiff is not a fit person to be given access to company tender documents. The notion of a fit person contemplated in the contextual imputation incorporates the sting in the plaintiff’s imputations, which focus on dishonesty and untrustworthiness. The conditions of dishonesty and untrustworthiness are fundamental to the notion of not being a fit person. Accordingly the contextual imputation is not elevated above the sting of the plaintiff’s imputations.
So far as the second point is concerned, the plaintiff submitted that the contextual imputation in para [8] is not capable of meeting the requirement of s 136(b) because the imputation is not capable of outweighing the seriousness of the sting that the plaintiff complains of and pleads. The plaintiff submitted that the contextual imputation was not of such gravity that it might reasonably be concluded that the plaintiff’s imputations did no further harm to plaintiff’s reputation. The plaintiff identifies the correct approach as being to compare the evidence relied upon in support of the proof of the truth of the contextual imputation with the sting of the least serious of the plaintiff’s imputations: Abou-Lokmeh v Harbour Radio Pty Ltd [2016] NSWCA 228 (Abou-Lokmeh) at [28]. The plaintiff submitted that the contextual imputation cannot on any view outweigh the seriousness of the sting that the plaintiff is so untrustworthy, now potentially facing criminal charges, that he must not be given access to company tender documents.
The plaintiff’s third point was that the specific acts alleged in the particulars to the claim of contextual truth did not support a general charge that the plaintiff was not a fit person to be given access to company tender documents. As a consequence, the plaintiff submitted that the particulars were manifestly inadequate to support the contextual truth defence.
Contextual truth: Defendant’s submissions
In relation to the plaintiff’s first point (the s 136(a) issue), the defendant submitted that while a contextual imputation must differ in substance from the plaintiff’s imputations, it need not differ in kind. The defendant relied upon the decisions of the New South Wales Court of Appeal in Zeccola at [70]-[74] and Abou-Lokmeh at [30]-[32]. He emphasised that the question is not whether the contextual imputation does in fact differ in substance but only whether it would be open to the tribunal of fact at trial to conclude that the contextual imputation differed in substance from the plaintiff’s imputations: Zeccola at [84], [89], Cornwell v Channel Seven Sydney Pty Ltd [2016] NSWCA 255 at [41], and Abou-Lokmeh at [48]. Following on from this first proposition, the defendant submitted that a general imputation may differ in substance from specific imputations dealing with the same subject matter. That is said to arise from the decisions in Zeccola at [49], [71], [83], Abou-Lokmeh at [32]-[33], [124]; and Cornwell at [46], [59]-[66].
The plaintiff submitted that although there is a general charge in the imputations of unfitness, that general charge is derived from the more specific conditions of dishonesty and untrustworthiness pleaded by the plaintiff. The defendant submitted that the attack on his pleadings would only succeed if the conditions of dishonesty and untrustworthiness necessarily covered the field of unfitness. He then pointed to the matters particularised by the defendant said to go to unfitness which are not necessarily dependent upon or limited to either dishonesty or untrustworthiness. He submitted that if at trial he establishes that the plaintiff is a man given to making unwarranted threats, engaging in bullying or improper assertions of authority, or who had disregard for the law, that might prove the truth of the contextual imputation but lie on the periphery of or outside the more specific matters raised in the plaintiff’s imputations.
The defendant also pointed to the further limitation upon the plaintiffs imputations, namely that the conditions of untrustworthiness or dishonesty are specifically tied to convictions or charges, whereas the contextual imputation is more general, raising the prospect of a broader basis of proof. He submitted that the statutory contextual truth defence was designed to avoid the kind of selective pleading which the imputations demonstrate.
In relation to the plaintiff’s second point (the s 136(b) issue), the defendant submitted that this required a focus on the facts, matters and circumstances which are contended to establish the truth of the contextual imputation rather than simply on the specific terms of the imputations in question: John Fairfax Publications Pty Ltd v Blake (2001) 53 NSWLR 541 at [5]; Abou-Lokmeh at [29]; Nationwide News Pty Ltd v Weatherup [2017] QCA 70 at [46]. In looking at the particulars provided, it must be recognised that the full effect of the evidence led within the particulars may be greater than what the bare particulars themselves indicate: Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 at [20].
The defendant submitted that if the range of and seriousness of the matters alleged in the particulars of the contextual truth defence are made out, then there would clearly be a triable issue as to whether the imputations alleged by the plaintiff (or at least one of them) would still harm his reputation.
So far as the plaintiffs third point (the complaint about particulars) is concerned, the defendant contended that his proof of a general charge will necessarily be made up of proof of specific conduct from which the Court will be asked to make an evaluative judgment. The range of incidents relied upon are all within one or two years of the time of publication and relate to the plaintiff’s “industrial” role. He therefore submitted that the material was readily capable of supporting the truth of the contextual imputation because it might be found that a person who would engage in such conduct was a person of such a character as not to be fit to be given access to company tender documents. In any event, the defendant contended that any deficiency in particulars should be remedied by way of the provision of further particulars rather than by striking out the defence of contextual truth as a whole.
Contextual truth: decision
On the plaintiff’s first point, I do not accept that the contextual imputation is incapable of arising “in addition to” the defamatory imputations pleaded. The defamatory imputations each incorporate three elements:
(a)a condition of the plaintiff, being either untrustworthiness or dishonesty;
(b)a reason for that untrustworthiness or dishonesty, namely conviction on criminal charges or that he is now potentially facing criminal charges; and
(c)an asserted consequence that he must not be given access to company tender documents or that he will misuse company tender documents if given them.
The contextual imputation is a generalised allegation of unfitness to be given access to company tender documents. The decisions in Zeccola and Abouh-Lokmeh make it clear that a general allegation can differ in substance from and hence be “in addition to” a more specific allegation. The particularised matters are not limited to matters which demonstrate untrustworthiness or dishonesty and they extend beyond the reason for that untrustworthiness or dishonesty asserted by the plaintiff’s imputations. I do not accept the plaintiff’s submission that the question of fitness must necessarily be fully encompassed by the concept of untrustworthiness or dishonesty. There are many other vices which may demonstrate a lack of fitness to be given access to company tender documents. I accept that a trial judge could find that the particularised conduct, if proved, was evidence of a lack of fitness that extended beyond and hence was “in addition to” the conditions of the plaintiff alleged in the plaintiff’s imputations.
The plaintiff’s second point is that the contextual imputation is not capable of outweighing under s 136(b) of the CLW Act the seriousness of the pleaded imputations. I do not accept that such a conclusion can be reached at the level necessary to warrant the striking out of this aspect of the defence. It cannot be said at this stage that it would not be open to a reasonable trier of fact to take the view that the conduct alleged in the particulars of the contextual imputation demonstrated a lack of fitness to be given access to company tender documents so that the defamatory imputations did not further harm the plaintiff’s reputation. It cannot be said at this stage that if the plaintiff was proved to be a man given to making unwarranted threats or engaging in bullying or improper assertions of authority, or who had disregard for the law, that that could not lead to a conclusion that the defamatory imputations did no further harm to him. In my view that is the case having regard to the bare particulars. However, the position is even clearer when one has regard to the fact that the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate: Hayson v John Fairfax Publications Pty Ltd at [20].
So far as the plaintiff’s third point is concerned, I do not accept that the alleged specific acts set out in the particulars could not support the general charge that the plaintiff was not a fit person to be given access to company tender documents. It is necessarily the case when a general condition of the plaintiff is asserted that it will be proved by specific conduct from which the finder of fact is required to make a finding as to whether the proved conduct is sufficient to establish the general charge. The particularised conduct is reasonably proximate to the publication and relates to the conduct of the plaintiff in his “industrial” role. Because of the temporal proximity and subject matter similarity, it cannot be said that the particulars provided would be incapable of establishing the contextual imputation alleged.
Finally, I have not dealt with a submission relating to particulars which was made orally but not stated as part of the grounds of the application. That was that particular (f) to the particulars of the truth of the contextual imputation (which alleges that the plaintiff was reasonably suspected of having committed the conduct their alleged against him) should be struck out. I accept the defendant’s submission that if this was to be raised as a ground of attack, then it should have been done in the Application in Proceeding so that it could have been the subject of considered submissions.
Common law qualified privilege: Plaintiff’s submissions
So far as para [9] is concerned, the plaintiff submitted that there was no reciprocity of duty and interest as between the defendant and the listeners of the radio program to establish an occasion of common law qualified privilege because the publication was made to too wide an audience.
The plaintiff read an affidavit that indicated that the licensed broadcast area for the radio station extended to Yass and Murrumbateman in New South Wales. He submitted that the decision in Roberts v Bass [2002] HCA 57; 212 CLR 1 was an illustration of a communication published to a comparatively small audience in a particular State electorate, most of whom had an immediate and direct interest in receiving information, arguments, facts, and opinions concerning the candidates and their policies. He distinguished the circumstances from those in the present case which he submitted was not targeted at electors but instead:
(a)was a general mass media broadcast within the ACT where an election was to be held but also extending to areas beyond that jurisdiction;
(b)extended to publication on the internet via the 2CC website to listeners throughout Australia; and
(c)included publication of audio podcasts of Radio 2CC interviews on the 2CC website to listeners throughout Australia.
He submitted that the law of qualified privilege did not recognise any interest or duty to publish defamatory matter to the general public. Rather any such publication to the general public on government and political matters was protected, if at all, by Lange v Australian Broadcasting Corporation, which incorporated a requirement for reasonableness.
Common law qualified privilege: Defendant's submissions
The defendant pointed to Gatley on Libel and Slander (Sweet and Maxwell, 12th ed, 2013) where the authors’ observed (at 690-1) that long before the decision in Reynolds v Times Newspapers Ltd [2001] 2 AC 127, there were authorities which supported a privilege for wide ranging publications of statements concerning the suitability of candidates for election to public office. The authors’ noted (at 691) that whether the privilege in question might apply in mass media cases “remains rather unclear”. The defendant submitted that Roberts v Bass supports the continued existence of the election cases and that Braddock v Bevins [1948] 1 KB 580 is still regarded as creating a distinct category of privilege: see for example Fraser v Holmes [2009] NSWCA 36, Marshall v Megna [2013] NSWCA 30 at [96]-[97], [145]-[153].
The issue raised in the present case is as to the scope of the audience for the publication. The defendant accepted the statement in Lange that the general and settled rule is that, apart from a few exceptional cases, a common law qualified privilege protects only publication to a limited number of recipients. However he raised the question of what those “exceptional cases” are and what other classes of case lie outside the general rule that mass media publications will not be an occasion of privilege. The defendant identified “reply to attack cases” as one established example. The defendant contended that election cases provide another exception and submitted that neither the decision in Lange nor the ratio of any other case holds that the common law qualified privilege, if otherwise within the confines of the election case principle, is unavailable simply because a mass media publication is involved. Therefore he submitted that the contention should not be a matter determined by way of a strike out application. The defendant also pointed to the practical matter that given that the Lange defence will be in play in any event, the retention of the common law defence will not have any substantial effect upon the length and complexity of the trial.
So far as the plaintiff relied upon the fact that the publication was to listeners outside the ACT, the defendant contended:
(a)The extent of actual publication has not been established and the limited material about the licensed area for broadcast is insufficient to permit the matter to be determined on a strike out basis.
(b)Depending upon the scale of publication proved inside and outside the ACT, publication to those outside may well be incidental to the publication inside the ACT. He pointed to an authority that privilege is not lost even if it is likely that material in question might come into the hands of persons not eligible to vote: Greenaway v Poole [2003] EWHC 1735 at [7].
(c)There would, in any event, be no warrant striking out the privilege so far as it is pleaded to publication inside the ACT, being the overwhelming part of the publication alleged.
Common law qualified privilege: decision
I accept, as the defendant did, that if there is any room in a case such as this for the existence of common law qualified privilege as distinct from the privilege contemplated in Lange, it is very limited. Having regard to the fact that the publication was made using mass media, it is likely to be “extremely difficult” to make out a defence of qualified privilege: cf Daily Examiner Pty Ltd v Mundine [2012] NSWCA 195 at [72]. However there are a series of factors which lead to the conclusion that it is not appropriate to strike out this aspect of the defence. These are set out below.
Absence of findings of fact: It is not possible to make any findings of fact at this stage about the extent of publication. While the plaintiff’s claim asserts publication both within and outside the ACT, as well as publication in various forms on the internet, there was no evidence as to the extent of publication other than a map showing the area in which 2CC was licensed to broadcast. That area did extend to Murrumbateman and Yass. It did not extend to Queanbeyan. However the licensed broadcast area may or may not coincide with the actual broadcast and there is no evidence at this stage that anybody listened to be broadcast via the internet or as a podcast.
Mass media publication not conclusively fatal: It has not been conclusively determined that a mass media publication cannot be the subject of qualified privilege. The election cases exemplified in Braddock v Bevins have been accepted in Australia. It has not been conclusively determined that this line of authority cannot apply simply because the publication is made via a form of mass media.
Effect of incidental publication not conclusively determined: In Roberts v Bass, the publication was made to some 12,000 households. Not only is the extent of the publication quite significant but it must have included publication to some people who were not electors, most obviously persons not old enough to vote. The judgments in that case did not articulate how that incidental publication affected the existence of the common law privilege.
No consequences for the hearing: Because the Lange defence has also been pleaded and there is no attempt to strike out that pleading, most of the factual issues raised by the pleading of qualified privilege will need to be agitated at the hearing in any event. Therefore it is not a case where the outcome of a strike out application will have a substantial consequence for the length or complexity of the hearing.
In the light of all of these factors, I do not consider it appropriate to strike out this aspect of the defendant’s pleading.
Conclusion
Because I have rejected each of the plaintiff’s challenges to the defendant’s pleading, the Application in Proceeding must be dismissed. Costs should follow the event.
The orders of the Court are:
1. The Application in Proceeding, filed on 10 October 2017, is dismissed with costs.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 11 December 2017 |
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