Ives v The State of Western Australia [No 3]

[2010] WASC 331

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   IVES -v- THE STATE OF WESTERN AUSTRALIA [No 3] [2010] WASC 331

CORAM:   LE MIERE J

HEARD:   ON THE PAPERS

DELIVERED          :   1 DECEMBER 2010

FILE NO/S:   CIV 1069 of 2010

BETWEEN:   BENJAMIN WILLIAM IVES

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Practice and procedure - Defamation - Amendment of pleadings - Application to amend statement of claim

Legislation:

Defamation Act 2005 (WA), s 7

Result:

Plaintiff have leave to file and serve a statement of claim

Category:    B

Representation:

Counsel:

Plaintiff:     In person

Defendant:     Mr S M Nunn

Solicitors:

Plaintiff:     In person

Defendant:     State Solicitor for Western Australia

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

Nil

1. LE MIERE J:  The plaintiff applies for leave to file a statement of claim in terms of the minute of proposed statement of claim dated 17 September 2010 and entitled 'Minutes of Proposed Changes to the Plaintiff's Statement of Claim' (the Minute).  The defendant applies for an order that the action be dismissed with costs.

Background

1. The plaintiff and his ex‑girlfriend, Ms Lim, were in a relationship for eight months prior to October 2008.  In December 2008 the Magistrates Court made a restraining order against the plaintiff on the application of Ms Lim.

2. On 31 December 2009 Ms Lim went to the Perth police station and made a complaint concerning threats allegedly made by the plaintiff.  At approximately 6.00 pm Sergeant Skehan, together with other police officers, went to a house in Claremont.  There were a number of people at the house.

3. The plaintiff says that Sergeant Skehan said to people at the house that the plaintiff had emailed certain threats to his ex‑girlfriend and by so doing breached a restraining order.  The plaintiff says that the police officers searched the house.

4. On 18 January 2010 the plaintiff commenced this action against the defendant, the State of Western Australia, claiming damages for defamation.

Matters in issue

1. In his amended indorsement of claim the plaintiff claims damages, including aggravated damages, for defamation in respect of words spoken by Sergeant Skehan and other representatives of the defendant to persons present at the Claremont house.

2. The plaintiff subsequently filed a number of statements of claim or proposed statements of claim.  On 2 September 2010 the plaintiff applied to amend his statement of claim in accordance with a document dated 2 September 2010 and entitled 'Minutes of Proposed Changes to the Plaintiff's Statement of Claim'.  However, before that application was determined the plaintiff forwarded to the court and the defendant a further proposed amended statement of claim dated 17 September 2010 and entitled 'Minutes of Proposed Changes to the Plaintiff's Statement of Claim' (the Minute).  When the matter came on for a directions hearing on 17 September 2010 I treated the Minute as an application to amend the plaintiff's application of 2 September 2010 so as to amend his statement of claim in accordance with the Minute.  I made directions for the filing of submissions.

3. Accordingly, the matters presently to be decided are:

   1.Should the plaintiff have leave to file a statement of claim in accordance with the Minute?

   2.Should the plaintiff's action be dismissed?

The Minute

1. The Minute consists of seven paragraphs and a prayer for relief claiming damages, including aggravated damages.  Paragraph 1 pleads that the plaintiff is a student.  Paragraph 2 pleads, in effect, that the defendant is vicariously liable for the actions of Sergeant Skehan 'and at least four other Crown agents' who accompanied Sergeant Skehan to the Claremont house on 31 December 2009.  It is clear that the reference to 'four other Crown agents' is a reference to four police officers.

2. Paragraph 3 pleads that on 31 December 2009 the defendant's agents attended the Claremont house and spoke certain words to the persons there named.  Again, it is clear that 'the defendant's agents' refers to Sergeant Skehan and the other police officers who attended at the house.  Paragraph 3 then sets out the words alleged to have been spoken.  The words alleged to have been spoken are:  'Ben Ives has sent his ex‑girlfriend emails threatening to rape, kill, and chop her body into little pieces'.

3. Paragraph 3 is an inadequate pleading.  The plaintiff should set out who spoke the alleged words.  It appears from the earlier proposed statement of claims delivered by the plaintiff to the court that the plaintiff's case is that the words complained of were spoken by Sergeant Skehan.  If that is the plaintiff's case then that is what [3] should say.

4. Paragraph 4 then says that the defendant's agents proceeded to request from the plaintiff's mother permission to search the house for weapons.  Permission was granted and the search was conducted.

5. Paragraph 5 says that the words complained of were also published to other persons at the house attending a party during which time the defendant's agents affirmed the words complained of were true.

6. Paragraph 5 is insufficient to plead a separate publication as a separate cause of action.  That is because it does not state with sufficient particularity who spoke the words complained of, to whom the words were spoken, each occasion on which the words were spoken and the words that were spoken.  However, the paragraph is a sufficient pleading in support of the plaintiff's claim for aggravated damages.  It is arguable that a repetition of a defamation may aggravate the injury to the plaintiff's feelings so as to support a claim for aggravated damages:  Gatley on Libel and Slander (11th ed) at [9.14].

7. Paragraph 6 sets out the imputations said to arise from the words complained of.  I will set out the paragraph in full:

   6.In the specific circumstances, the speaking of the words complained of and the search for weapons in the plaintiff's parents home; conveyed a literal meaning, specifically:

   5.1The plaintiff is a dangerous character, thus justifying the large amount of officers in attendance, who were there to arrest and charge the plaintiff.

   5.2The plaintiff had emailed abhorrent threats to rape and murder and cut into pieces the body of a person the plaintiff had been in a relationship with.

   5.3The plaintiff's arrest for committing the crimes of making threats to rape and murder and chop into pieces the body of a person, was required and imminent.

   5.4The plaintiff is a potential murderer.

   5.5The plaintiff is a potential rapist.

8. Imputation 5.1 is embarrassing because it contains a number of imputations rolled into one.  The first imputation is that the plaintiff is a dangerous character thus justifying the large number of police officers in attendance.  The remainder of imputation 5.1 rolls up additional and separate imputations.  Furthermore, there is nothing in the words allegedly spoken to convey that the police officers were there to arrest and charge the plaintiff.  I would not allow imputation 5.1.

9. The words complained of arguably give rise to imputation 5.2.  The defendant complains of the word 'abhorrent'.  The word is superfluous.  Any reasonable person would consider that threats to rape and murder and cut into pieces the body of another person are abhorrent.

10. Imputation 5.3 does not arise from the words complained of.  There is nothing in the words complained of to convey the meaning that the arrest of the plaintiff was required or imminent.

11. Imputations 5.4 and 5.5 are embarrassing.  It is not clear what is meant by 'a potential murderer' or 'a potential rapist'.  Does it mean that the plaintiff has an inherent capacity to murder or rape?  Does it mean that he has a greater inherent capacity for murder or rape than most people?  Does it mean that there is a likelihood that the plaintiff might commit murder or rape, and if so what degree of likelihood?  The difficulty may be illustrated by considering what the defendant would have to do to prove the imputation to be true.  The matter must be approached in a practical, commonsense way.  In the context of the alleged publication, neither the defendant nor the court would be able to determine what would be necessary to prove that the plaintiff is 'a potential murderer' or 'a potential rapist'.  If the gist of the imputations are that the plaintiff is a potential murderer or a potential rapist because he has made threats to rape and murder then the imputations add nothing to imputation 5.2 and is merely repetitive and for that reason should not be allowed.

12. Paragraph 7 pleads that by reason of the publication of the words complained of the claimant has been seriously injured in his personal reputation and has suffered acute distress.  The word 'claimant' should be replaced by 'plaintiff' but otherwise the paragraph may stand.

13. The prayer for relief claims damages, including aggravated damages for slander. The claim in [5] that the police officers repeated the defamatory words arguably gives rise to a claim for aggravated damages. Section 7 of the Defamation Act 2005 (WA) abolished the distinction between slander and libel. It is not necessary to plead that the plaintiff claims damages for slander.

Conclusion

1. The plaintiff should have leave to file a statement of claim substantially in the following terms:

   1.The plaintiff is a part time student at Murdoch University in Western Australia and in December 2009 lived on campus at Murdoch University.

   2.At 6.00 pm on 31 December 2009 Sergeant Skehan and at least four other police officers attended the plaintiff's parents' home in Claremont, Western Australia.

   3.Sergeant Skehan spoke and published to the plaintiff's brother‑in‑law, Andrew Thompson, his sister, Marianne Thompson and their three children aged 3, 5 and 10 and to the plaintiff's mother, Bronwen Ives, the following words defamatory of the plaintiff:

   Ben Ives has sent his ex‑girlfriend emails threatening to rape, kill, and chop her body into little pieces.

   4.Sergeant Skehan and the other police officers proceeded to request from Bronwen Ives permission to search the house for weapons.  Permission was granted and a search was conducted.

   5.In their natural and ordinary meaning the words meant and were understood to mean that the plaintiff had emailed threats to rape and murder and cut into pieces the body of a person the plaintiff had been in a relationship with.

   6.At all material times Sergeant Skehan and the other police officers were members of the Police Force and their actions referred to in [3] and [4] were done by them as members of the Police Force while performing or purporting to perform the functions of a member of the Police Force and the defendant is liable for their actions.

   7.A party was being held at the plaintiff's parents' house during the search.  During the search the police officers said to friends and family of the plaintiff who were attending the party words to the effect that the words set out in [3] were true.

   8.By reason of the publication of the said words the plaintiff has been seriously injured in his personal reputation and has suffered acute distress.

   And the plaintiff claims damages including aggravated damages.

2. The plaintiff should satisfy himself that a statement of claim substantially in those terms pleads the case the plaintiff wishes to prosecute and that the statements made in it are correct.

Costs

1. I have determined that the plaintiff should have leave to file and serve a statement of claim substantially in the terms that I have referred to.  However, I have refused the plaintiff's application for leave to amend in the terms of the Minute.  It was necessary and reasonable for the defendant to oppose the leave sought by the plaintiff and the defendant has been successful insofar as the plaintiff has been refused leave to amend his statement of claim in accordance with the Minute.  The plaintiff should pay the defendant's costs of the plaintiff's application to amend his statement of claim.