Hickey v West Australian Newspapers Limited - [2009] WASC 50

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HICKEY -v- WEST AUSTRALIAN NEWSPAPERS LIMITED [2009] WASC 50

CORAM: NEWNES J

HEARD: 28 JANUARY 2009

DELIVERED : 9 MARCH 2009

FILE NO/S: CIV 2334 of 2008

BETWEEN: ARCHBISHOP BARRY JAMES HICKEY
Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LIMITED (ACN 008 667 632)
Defendant

Catchwords:

Defamation - Application to strike out statement of claim - Whether imputations capable of being conveyed by words complained of - Whether permissible to plead imputations alleged to be conveyed by subsequent article relied on only for aggravated damages - Turns on own facts

Legislation:

Nil

Result:

Application successful in part

Category: B

Representation:

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr T D Blackburn SC & Ms C Galati

Solicitors:

Plaintiff: Lavan Legal
Defendant: Edwards Wallace

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

Elliot v West Australian Newspapers Ltd [2006] WASC 222
John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205
John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77
Jones v John Fairfax (Publications) Pty Ltd [2002] NSWSC 1210

NEWNES J: This is an application by the defendant for orders striking out pars 4.2, 4.3, 6.3, 6.7, 6.10, 6.12, 6.15 and 6.17 of the statement of claim on the grounds that those pleas do not disclose a reasonable cause of action, or alternatively may prejudice, embarrass or delay the fair trial of the action.

The background

The plaintiff is, and was, at all material times, the Catholic Archbishop of Perth. The defendant is the publisher of The West Australian newspaper.
In par 3 of the statement of claim, the plaintiff pleads:
On 2 October 2008, the defendant published falsely and maliciously the following words in an article at page 3 of The West Australian under the headline 'Archbishop Hickey "hypocrite"' (Matter), of and concerning the plaintiff:
'Archbishop Hickey "hypocrite"
Perth Catholic Archbishop Barry Hickey has been accused of hypocrisy over a televised message in which he urges respect for the rights of women, with pro‑women lobbyists claiming it ignored the Church's legacy of condemning women priests.
The public message, broadcast on commercial channels during prime time, has reignited debate over the Church's steadfast opposition to women joining the clergy.
In his message, Archbishop Hickey urged people to treat women with respect, saying "we are bereft and empty without them".
"Women provide the first love children experience in the womb and in the home. They civilize the human heart in ways that men cannot do," Archbishop Hickey said in the advertisement.
"I ask everyone to make sure women are never demeaned, not by actions, not by distasteful images and not by the denial or [sic, of] rights."
University of WA philosophy professor Michael Levine, who specializes in the philosophy of religion, said the message was misleading and "manipulative".
He said the Catholic Church had failed to exert moral leadership by its continue [sic] failure to allow women to become bishops or to acknowledge same‑sex marriages.
"There is hypocrisy in that because there is a consistent denial or [sic, of] rights on one and a pretension of extending rights on the other," Professor Levine said. "The Catholic Church upholds and reveres women but in reality it demeans women by denying women the same opportunities as men."
Archbishop Hickey stood by his advertisement yesterday, saying he treated women with respect and wanted to urge others to do the same.
He said the issue of ordaining women bishops had nothing to do with respect or granting them the same rights as men.
"I described accurately what my experience is of women, and I try to deal with them with great respect," Archbishop Hickey said.
"Ordination is not a matter of rights for anyone.
"The Church itself does not believe it has the power to ordain women and I accept the Church's authority."
The Catholic Church has long refused to ordain women priests, claiming Christ chose only men as his apostles and Church law stated only a baptized male could be made a priest.
In May, the Vatican issued a decree stating women priests and bishops who attempted to ordain women would be excommunicated.'
In par 4, the plaintiff alleged that in its natural and ordinary meaning the article meant and was understood to mean (relevantly):
…
4.2the plaintiff misled the public about his true views on women that he expressed in public messages broadcast on commercial television channels; and
4.3the plaintiff was devious in public messages broadcast on commercial television channels by pretending to hold beliefs about women he does not in fact hold.
The defendant says that neither of those imputations is capable of being conveyed by the article.
The plaintiff pleads (among other things) a claim for aggravated damages. In par 6, the plaintiff pleads that the defendant's publication of the article and its conduct has been improper, unjustifiable and lacking in bona fides in a manner which aggravated the hurt, damage and stress suffered by the plaintiff. The alleged conduct includes the publication of four further articles, those articles (the Aggravating Articles) being described in the pleading as the First Aggravating Article, the Second Aggravating Article, the Third Aggravating Article and the Fourth Aggravating Article respectively.
In relation to the First Aggravating Article, it is pleaded in par 6.3 of the statement of claim that:
[T]he defendant published an article at page 3 of The West Australian on 10 October 2008 under the headline 'Hickey threatens to sue West over report', which republished the defamatory gist of the Matter.
The defendant objects to that plea on the ground it is unclear what is meant by the 'defamatory gist'. The same objection is taken to pleas in the same form in pars 6.7 and 6.10 of the statement of claim, concerning the Second Aggravating Article and the Third Aggravating Article respectively.
In par 6.12 of the statement of claim, the plaintiff pleads as follows:
[T]he defendant included the following insulting, harmful, damaging and denigrating words of and concerning the plaintiff in the Third Aggravating Article:
'[i]t is also worth noting that the Archbishop is not practising the Catholic Church's principle of forgiveness in respect to Professor Levine's comments and has instead chosen to pursue legal means',
which words convey the imputations that the plaintiff, as the most senior member of the Catholic Church in Western Australia in prosecuting his within claim against the defendant:
6.12.1is failing to uphold his Church's principle of forgiveness;
6.12.2is putting his own personal interests ahead of those at the Catholic Church;
6.12.3is selfish;
6.12.4is motivated by revenge in pursuing his defamation action against the defendant when he should be practising forgiveness.
The plea in par 6.15, concerning the Fourth Aggravating Article, is in different terms but in the same form.
The plea in par 6.17 is a little different. It is there pleaded as follows:
[I]n publishing the First Aggravating Article, the Second Aggravating Article, the Third Aggravating Article and the Fourth Aggravating Article (together the Aggravating Articles), the defendant has engaged in systematic and calculated improper conduct to publicly shame, deter and dissuade, or attempt to shame, deter and dissuade, the plaintiff from first instituting, and then proceeding with, his defamation action against the defendant to obtain curial vindication of his rights;
Particulars
6.17.1the Second Aggravating Article, the Third Aggravating Article and the Fourth Aggravating Article convey imputations that:
(a)the plaintiff ought not proceed with his defamation claim because he could not fund it;
(b)if the plaintiff did initiate and proceed with his defamation action it would be at the expense of donations made by Catholic Church parishioners, funds which should be applied to objects of the Catholic Church other than funding the plaintiff's own, personal litigation;
(c)if the plaintiff did initiate and proceed with his defamation action, he would incur significant legal costs that he would not be able to satisfy;
(d)if the plaintiff did initiate and proceed with his defamation action, he would foolishly incur legal costs that could not be paid or could not be recovered;
(e)if the plaintiff did initiate and proceed with his defamation action, the plaintiff would be pursuing wasteful litigation.
In relation to par 6.12, 6.15 and 6.17.1, the defendant objects to the pleading of 'imputations'. The defendant further complains that it is not clear in par 6.17.1 whether the alleged imputations are said to be conveyed individually or cumulatively by the three articles referred to.

The defendant's submissions

It was submitted that the imputation pleaded in par 4.2 of the statement of claim was not reasonably capable of being conveyed by the words complained of. There is no suggestion that the views attributed to the plaintiff in the article were other than the plaintiff's true views on women. The issue in the article is whether the plaintiff's message is at odds with the position of the Catholic Church on the role of women in the Church. There is nothing in the article which suggests the plaintiff misled the public.
In relation to par 4.3, it was submitted that there was nothing in the matter complained of which suggested the plaintiff was being devious or that his statements expressed views that he did not genuinely hold. Rather the article was concerned with the conflict between the statements made by the plaintiff and the position of the Catholic Church on the role of women.
In relation to par 6.3, 6.7 and 6.10, it was submitted that it was uncertain what was meant by the 'defamatory gist'. In particular, it was unclear whether it was suggested that the imputations pleaded in par 4 were re‑published in the Aggravating Articles or whether something else (and what) was being alleged by the plaintiff. The defendant submitted that these pleas failed to specify the precise conduct of the defendant which was alleged to be improper, unjustifiable or lacking in bona fides.
The defendant submitted in respect of pars 6.12 and 6.15 that the plaintiff was not entitled to plead imputations relying on subsequent articles in support of a claim for aggravated damages where the plaintiff does not rely on those subsequent articles as additional defamations. If the plaintiff were permitted to plead imputations in this manner it would raise impossibly complex problems relating to the manner in which the defendant might respond to them. The defendant also complained about the adequacy of the form of each of the imputations.
The objection to par 6.17, to the extent it pleaded 'imputations', was the same and there was the additional complaint that it was not clear whether the meanings were alleged to be conveyed by each of the Aggravating Articles individually or by them cumulatively.

The plaintiff's submissions

It was submitted in respect of par 4.2 that it is plain from the article, and in particular the headline and the first paragraph, that a charge of hypocrisy was made against the plaintiff personally. The words attributed to Professor Levine include an assertion that the plaintiff's public message was 'misleading'. It is arguable that an ordinary reasonable reader would understand the article to mean the plaintiff's personal message about respecting women and their rights was deliberately misleading in view of the (false) charge that the plaintiff is a hypocrite in respect of his views relating to women.
In relation to par 4.3, counsel for the plaintiff referred to the above submissions and also to the word 'manipulative' (which in the article was attributed to Professor Levine), that word carrying a meaning (among others) of deviousness. It is therefore arguable that an ordinary reasonable reader would understand the article to mean the plaintiff was devious as pleaded in par 4.3.
It was submitted, in relation to par 6.3, 6.7 and 6.10, that there was no difficulty with the meaning of 'defamatory gist'. The word 'gist' in its ordinary dictionary meaning means the 'substance' or 'pith' of a matter, the 'essential part'. The plea in those paragraphs is simply that the Aggravating Articles re‑published the defamatory substance or essence of the words complained of. It was also submitted there was no imprecision about the conduct which was alleged to be improper, unjustifiable or lacking in bona fides. It was clear that the conduct in question was causing the publication of the subsequent articles which re‑published the defamatory gist of the original article.
In relation to the defendant's complaint about the pleading of 'imputations' in the claim for aggravated damages, it was submitted that those pleas gave particularity to the contents of the articles and identified the manner in which the aggravating hurt had been caused. In relation to par 6.17.1, it was submitted that it was clear that the pleading referred to each of the articles individually, not their cumulative effect.

Disposition of the application

I will deal first with the objections to the imputations pleaded in pars 4.2 and 4.3 of the statement of claim.
It is unnecessary to set out the principles to be applied on an application of this nature. Both parties took the relevant principles to be those described in Elliot v West Australian Newspapers Ltd [2006] WASC 222 [16] ‑ [24]. I will not repeat what is said there.
I do not consider that the complaint about par 4.2 is made out. It is significant that the headline of the article is 'Archbishop Hickey "hypocrite"'. The body of the article then commences with the words 'Perth Catholic Archbishop Barry Hickey has been accused of hypocrisy over a televised message in which he urges respect for the rights of women …'. Later in the article, Professor Levine is quoted as describing the plaintiff's televised message as 'misleading'. He is also quoted as describing as 'hypocrisy' the 'consistent denial of rights on one and a pretension of extending rights on the other'. In the context, the charge of hypocrisy and the reference to a pretension are arguably capable of being understood by an ordinary reasonable reader as referring to the views expressed by the plaintiff in his televised message.
And while the article must, of course, be read as a whole, as Callinan J (with whom Gleeson CJ agreed) pointed out in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77:
[T]hat does not mean that matters that have been emphasized should be treated as if they have only the same impact or significance as matters which are treated differently. A headline, for example, expressed pithily and necessarily incompletely, but designed to catch the eye and give the reader a predisposition about what follows may well assume more importance than the latter. (130)
See also John Fairfax v Rivkin (83) (McHugh J).
In my view, when the words complained of are read as a whole it is arguable that an ordinary reasonable reader would understand them to bear the meaning alleged in par 4.2.
For similar reasons, I consider that the objection to par 4.3 must also fail. Professor Levine is quoted in the article as describing the plaintiff's message as 'manipulative'. As counsel for the plaintiff pointed out, one of the meanings of 'manipulative' given in the Macquarie Dictionary is 'to manage or influence by … deviousness'. And Professor Levine is further quoted as referring to 'a pretension of extending rights [to women]', in the context of an allegation of hypocrisy. For the reasons I have given, it is arguable that a reasonable reader would understand the references to 'hypocrisy' and to a 'pretension' to be references to the views expressed by the plaintiff in his televised message.
In my view, it is arguable that an ordinary reasonable reader would understand the words complained of to bear the meaning alleged in par 4.3.
I would not, therefore, uphold the defendant's complaints about par 4 of the statement of claim.
I turn then to the plea of aggravated damages in par 6 of the statement of claim.
The first complaint concerns the use of the expression 'defamatory gist' in pars 6.3, 6.7 and 6.10.
Counsel for the plaintiff said that that expression was taken from a precedent in Bullen & Leake's Precedents of Pleadings. I do not doubt that that is the case, although I have been unable to locate the edition of that work from which it is taken. It would seem it has been taken from an older edition, which gives some force to the submission of senior counsel for the defendant that it reflects a time when a plaintiff was not required, and it was not common, to plead defamatory imputations.
I understood from the plaintiff's counsel that in each place in which it is used in the pleading the expression 'defamatory gist' refers to all of the defamatory imputations pleaded in par 4 of the statement of claim. I do not think that is sufficiently clear. If the plaintiff means that all of the defamatory imputations were re-published in each of First Aggravating Article, the Second Aggravating Article and the Third Aggravating Article, he should expressly say so in the pleading. If something else is intended, that should be clearly articulated. I would uphold the defendant's complaint about these paragraphs of the statement of claim.
I turn finally to pars 6.12, 6.15 and 6.17 of the statement of claim
In this jurisdiction a plaintiff is ordinarily required to plead the defamatory imputations which he or she alleges are conveyed by the words complained of. The plaintiff has done so. The defendant's complaint, however, is that it is only in respect of the words complained of that imputations should be pleaded; that it is not permissible to plead imputations in respect of subsequent publications which are relied upon, not as giving rise to a cause of action, but only in respect of damages. It was submitted that otherwise a host of problems would arise, not the least of those being whether the defendant was entitled in respect of the latter imputations to plead the range of defences that are available to a defamatory imputation which is pleaded as giving rise to a cause of action, such as justification, fair comment and qualified privilege. I was referred in that connection to comments made by Levine J in Jones v John Fairfax (Publications) Pty Ltd [2002] NSWSC 1210 [73].
I was also referred to the decision of the New South Wales Court of Appeal in John Fairfax Publications Pty Ltd v Jones [2004] NSWCA 205, where subsequent publications were relied upon, not as giving rise to a cause of action, but as constituting a campaign of denigration, giving rise to a claim for aggravated damages. Referring to those subsequent publications, Hodgson JA said:
In my opinion, the plaintiff is not relying on the additional material as additional defamations, and indeed could not do so; and there is no need to proceed as if additional defamations were alleged and no need to comply with the requirements for claiming damages for defamation. Thus there is no need for the plaintiff to specify imputations. I would add to this that, in my opinion, the plaintiff cannot seek to increase damages by reference to injury to reputation caused by the content of this additional material: although aggravating conduct may increase damages by way of increasing injury to reputation, in my opinion this will only be through adding to the effect of the defamation actually sued on. [94]
I consider that the form of the pleading in the present case, where imputations are pleaded in respect of publications relied upon only for aggravated damages, is embarrassing. In my view, the pleading of such imputations is not only unnecessary but likely to lead to confusion. In particular, it is likely to lead to confusion both as to whether it is intended to allege additional causes of action and as to what defences might properly be pleaded to such 'imputations'. That is because the word 'imputation' has a well-established meaning in defamation law. Imputations are pleaded to set out the defamatory meanings which the plaintiff (or in a 'Polly Peck' plea, the defendant) alleges were conveyed to the ordinary reasonable reader by the words complained of. That is, they relate to the cause of action (or in the case of a 'Polly Peck' plea, the defence to it). They have otherwise no role to play in a pleading.

But in the course of argument there arose a question as to whether, where it is alleged that a subsequent publication increased the hurt or damage suffered by the plaintiff, it is permissible for the plaintiff in a plea of aggravated damages to plead the senses in which he or she alleges the ordinary reasonable reader would have understood the subsequent publication.
Whether such a plea is permissible was not the subject of argument before me and senior counsel for the defendant expressly reserved the defendant's position on that question. In my view, however, if such a plea is permissible (a matter on which I offer no view at this stage) it would have to be clear that that was what the plaintiff was doing and, in particular, that the plaintiff was not alleging that the sense or meaning pleaded gave rise to a further cause of action. It would therefore be confusing to use the word 'imputation' in that context, in light of the established meaning which that word bears in defamation law.
In my view, pars 6.12, 6.15 and 6.17 in their present form are embarrassing and I would strike them out. I also accept that, if it be the case that the alleged meaning of subsequent articles relied on for aggravated damages can be pleaded, it is unclear whether in par 6.17.1 it is alleged that the meanings are borne by each article or by the articles cumulatively. I should say that in the course of argument, counsel for the plaintiff said that the meanings were alleged to be conveyed by each article. That, however, is not clear from the pleading.

Conclusion

I would strike out pars 6.3, 6.7, 6.10, 6.12, 6.15 and 6.17 of the statement of claim and would otherwise dismiss the defendant's application. I would grant to the plaintiff leave to replead. I will hear the parties on the time within which that is to be done and on the costs of the application.