Ives v The State of Western Australia [No 5]
[2011] WASC 165
•30 JUNE 2011
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: IVES -v- THE STATE OF WESTERN AUSTRALIA [No 5] [2011] WASC 165
CORAM: LE MIERE J
HEARD: ON THE PAPERS
DELIVERED : 30 JUNE 2011
FILE NO/S: CIV 1069 of 2010
BETWEEN: BENJAMIN WILLIAM IVES
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application to strike out defence - Relevant principles - Turns on own facts
Legislation:
Police Act 1892 (WA), s 137
Rules of the Supreme Court 1971 (WA), O 20 r 8(1), O 20 r 8(2)
Result:
Defence struck out in part
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: No appearance
Solicitors:
Plaintiff: In person
Defendant: State Solicitor for Western Australia
Case(s) referred to in judgment(s):
Agar v Hyde (2000) 201 CLR 552
LE MIERE J: The plaintiff applies to strike out the defence on the grounds that it discloses no reasonable defence, is scandalous, frivolous or vexatious, it may prejudice, embarrass or delay the fair trial of the action or is otherwise an abuse of process of the court. The plaintiff also raises other grounds that I will refer to later in these reasons.
Statement of claim
The case pleaded by the statement of claim is as follows. 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. Sergeant Skehan spoke to the plaintiff's brother‑in‑law, his sister and their three children and to the plaintiff's mother the following words:
Ben Ives has sent his ex‑girlfriend emails threatening to rape, kill and chop her body into little pieces.
Sergeant Skehan and the other police officers proceeded to request from Mrs Ives permission to search the house for weapons. Permission was granted and a search was conducted. In their natural and ordinary meaning the words complained of 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. At all material times Sergeant Skehan and the other police officers were members of the police force and their actions 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. 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 spoken by Sergeant Skehan to the plaintiff's brother‑in‑law and others referred to above. The plaintiff claims he has been defamed by the words spoken and claims damages including aggravated damages.
Defence
In [8] the defendant admits that Sergeant Skehan and a police constable and shortly after two further police officers attended the plaintiff's parents' home. In [1] ‑ [7] the defendant sets out the circumstances leading to that attendance.
The defendant says the circumstances were as follows. On 1 December 2008 pursuant to the Restraining Orders Act 1997 (WA) the Magistrates Court made an interim violence restraining order, effective for two years, for the benefit of Ms Lim, imposing restraints on the activities and behaviour of the plaintiff, including prohibiting him from communicating or attempting to communicate with Ms Lim. On 31 December 2009 Ms Lim attended the Perth police station and made a report to a police officer to the effect that an interim posting had been made by an author identified as Benny091074 on an internet account hosted by Livejournal, that the author of the internet posting was the plaintiff, that the internet posting included threats of violence by the author, that Ms Lim had obtained the restraining order, and Ms Lim had previously been in a relationship with the plaintiff. Ms Lim provided to the police officer a printout of the internet posting. The printout is attached as a schedule to the defence. The substance of Ms Lim's report was communicated, and a copy of the printout provided, to Sergeant Skehan who was the 'On Road Supervisor' for the shift that afternoon. Sergeant Skehan verified that the violence restraining order was in force. Sergeant Skehan decided to try to interview the plaintiff and to check for the presence of firearms at the address for the plaintiff being the plaintiff's address last known to the police.
In [9] the defendant denies that Sergeant Skehan spoke the words complained of and sets out the substance of what the defendant says Sergeant Skehan said. In [10] the defendant says that Sergeant Skehan and another police officer searched the house after receiving permission from the plaintiff's mother to do so. In [11] the defendant denies that the words complained of bear the meaning alleged by the plaintiff. In [12] the defendant admits that in carrying out the conduct pleaded in the defence Sergeant Skehan and the police officer were performing the functions of a member of the police force and that pursuant to s 137 of the Police Act 1892 (WA) the defendant is liable for any such conduct constituting a tort but denies that they carried out the actions alleged in the statement of claim. In [13] the defendant admits that there were a number of people in one room of the house during the search but denies that the police officers said to the persons present the words alleged in the statement of claim.
In [14] the defendant pleads that any statements made by Sergeant Skehan to the plaintiff's mother were made on an occasion of qualified privilege and pleads the facts alleged to give rise to that privilege. In [15] the defendant pleads that if the plaintiff's family overheard the conversation as bystanders any statements by Sergeant Skehan heard by them were made on an occasion of qualified privilege. In [16] the defendant pleads that if the words alleged to have been spoken in the statement of claim were spoken and bear the meanings alleged then they were substantially true and sets out particulars of truth. In [17] the defendant pleads the imputations which arise from the words alleged to have been spoken and pleads that each of those imputations is true in substance and fact.
In [18] the defendant pleads that if the plaintiff has suffered damage as alleged in the statement of claim that damage did not occur as a result of the publication of the words complained of.
Challenge to defence
The plaintiff challenges the defence on numerous grounds. The court should not decide any of the issues raised in the proceedings in a summary way except in the clearest of cases. Ordinarily, a party is not to be denied the opportunity to place his or her case before the court in the ordinary way, and after taking advantage of the usual interlocutory processes. The court should only strike out a defence, or part of it, if it has a high degree of certainty about the ultimate outcome of the matter if it were allowed to go to trial in the ordinary way: Agar v Hyde (2000) 201 CLR 552, 575 ‑ 576 (Gaudron, McHugh, Gummow & Hayne JJ). I will refer to each of the grounds of challenge by the plaintiff by referring to the paragraph or paragraphs of the defence to which the grounds of challenge refer.
Paragraph 2
This paragraph pleads the making of the restraining order. The plaintiff says that it is irrelevant, frivolous and embarrassing. The defendant pleads at [7] of its defence that the existence of the restraining order was relevant to Sergeant Skehan's decision to try to interview the plaintiff and to check for the presence of firearms at the address for the plaintiff last known to the police. The basis for Sergeant Skehan's decision is relevant to the defence of qualified privilege pleaded at [14] and [15] of the defence. Paragraph 2 of the defence is not irrelevant, frivolous or embarrassing.
The plaintiff says that [2] of the defence pleads evidence and pleads an immaterial fact and should not be allowed. Order 20 r 8(1) of the Rules of the Supreme Court 1971 (WA) (RSC) provide that a pleading must contain, and contain only, a statement in summary form of the material facts on which the party pleading relies for his defence but not the evidence by which those facts are to be proved and the statement must be as brief as the nature of the case admits. The matters pleaded in [2] are material facts.
Paragraph 3
The plaintiff says that [3] is irrelevant. Paragraph 3 pleads that Ms Lim made a report to a police officer at the Perth police station that the plaintiff had made an internet posting that included threats of violence. Paragraph 5 of the defence pleads that the substance of Ms Lim's report was communicated to Sergeant Skehan. The communication of the substance of that report to Sergeant Skehan and the actions he took in response are relevant to the defence of qualified privilege pleaded at [14] and [15] of the defence. Paragraph 3 of the defence is not irrelevant.
Paragraph 4
Paragraph 4 of the defence pleads that at the time Ms Lim made her report to the police officer she provided a printout of the internet posting. The printout is attached as a schedule to the defence. The plaintiff submits that the printout or the pleading of it, is evidence and should be struck out.
The plaintiff submits that the defence should disclose the case the plaintiff is asked to meet rather than how it will be proved against him. The distinction is said to be between pleading with particularity and actual evidence to prove what is alleged.
Order 20 r 8(2) RSC, provides that the effect of any document must, if material, be briefly stated, and the precise words of the document shall not be stated, except insofar as those words are themselves material. Paragraph 3 of the defence pleads that the internet posting included threats of violence by the plaintiff. It is sufficient to there plead the effect of the internet posting; the words of the document are not themselves material. In [4] the material fact pleaded is that Ms Lim provided to the police officer a printout of the internet posting. It is not necessary to attach a copy of the printout as a schedule. To do so is contrary to O 20 r 8(2). Further paragraphs of the defence refer to the content of the internet posting ‑ see [7], [16] and [17]. In each of those paragraphs the defendant pleads the effect of the internet posting. In [4] the words 'the printout is attached as a schedule to this defence' should be struck out and the schedule itself should be struck out.
Paragraph 6
Paragraph 6 of the defence pleads that Sergeant Skehan verified that the violence restraining order was in force. The plaintiff submits that [6] is irrelevant and embarrassing. Paragraph 6 of the defence is relevant to the defence of qualified privilege. It is not irrelevant.
Paragraph 14
Paragraph 14 of the defence pleads that any statements made by Sergeant Skehan to the plaintiff's mother were made on an occasion of qualified privilege and sets out in subparagraphs (a) to (g) the matters giving rise to the privilege.
The plaintiff makes a number of complaints about [14] of the defence. Some of those complaints are to the effect that the facts alleged in [14] of the defence are not correct. That is not a ground for striking out a pleading. Another complaint is that the speaking of the words complained of were not necessary and therefore not covered by qualified privilege. That is a matter for trial, not a strike out point.
Another complaint is that the plaintiff's mother had no interest in hearing the substance of the words complained of. The plaintiff says that there is no reciprocity of duty and interest and hence no occasion of qualified privilege arises. It is arguable that Sergeant Skehan had a duty to communicate the words complained of and the plaintiff's mother had an interest in receiving the communication. Sergeant Skehan was investigating the complaint by Ms Lim and in the course of his duty determined to search the house for firearms. It was necessary to tell the plaintiff's mother what he was investigating and why he wished to search the house in order to obtain her permission for him to do so. Whether or not Sergeant Skehan could have obtained a search warrant is not to the point. The plaintiff's mother, as the occupier of the house, arguably had an interest in receiving the communication because it related to searching the house. Paragraph 14 discloses a reasonable defence and should not be struck out.
Paragraph 15
Paragraph 15 of the defence pleads that if the plaintiff's family overheard the conversation as bystanders, the statements made by Sergeant Skehan heard by them were made on an occasion of qualified privilege.
Paragraph 15 pleads that publication of the words complained of to the plaintiff's family is subject to qualified privilege on two grounds. The first is that the publication was made on an occasion which is privileged by reason of a duty or interest in Sergeant Skehan to make the communication to the plaintiff's mother and the plaintiff's family's participation in the publication was reasonably necessary and therefore protected by privilege. The second ground is that the plaintiff's family had an interest in hearing the conversation. That is, the paragraph pleads both an ancillary, incidental or derivative privilege and an independent or personal privilege.
The ancillary, incidental or derivative privilege is an arguable defence. The presence of uninterested bystanders does not necessarily defeat a defence of qualified privilege. The authors of Gatley on Libel and Slander (11th ed, 2008) say:
In cases of slander, where the defendant spoke the words complained of with honesty of purpose to a person or persons who had some legitimate interest, or some duty in the matter, the mere fact that one or even several, (legally) uninterested persons happened to be present and heard what was said will not necessarily prevent the occasion from being a privileged occasion [14.74].
However, [15] does not disclose a reasonable defence that the communication of the words complained of to members of the plaintiff's family, other than his mother, was such as to give rise to an independent qualified privilege. The defence does not plead material facts which arguably give rise to an independent privilege in relation to the plaintiff's family. The defendant pleads that the plaintiff's mother had an interest in receiving the information imparted to her by Sergeant Skehan in the conversation as permission was required from the plaintiff's mother to enable Sergeant Skehan and the police officer lawfully to search the house. However, the only fact pleaded in support of the allegation that the plaintiff's family had an interest in hearing the conversation is that they were present at the premises and apparently related to the plaintiff's mother. Those facts are not arguably capable of giving rise to the necessary interest. It is not pleaded that the plaintiff's family, other than the plaintiff's mother, were, or appeared to be, in charge of or in occupation of the house. It is not pleaded that there were any facts which gave rise to a reasonable belief that their permission was required to search the house. There are no facts pleaded which make it reasonably necessary to inform the plaintiff's family, other than his mother, of the matters complained of in order to obtain permission to search the house.
There are no facts pleaded which arguably establish that the members of the plaintiff's family, other than his mother, had an interest or apparent interest in having information on the plaintiff and his alleged threats to Ms Lim. Paragraph 15 of the defence should be struck out insofar as it pleads a case of an independent privilege as distinct from a privilege ancillary or incidental to the privilege attaching to the communication to the plaintiff's mother. Paragraph 15(c) is relevant to the independent privilege and not to the ancillary or incidental privilege. Paragraph 15(c) should be struck out.
Conclusion
In [4] of the defence the words 'the printout is attached as a schedule to this defence' should be struck out and the schedule itself should be struck out. Paragraph 15(c) should be struck out. I will hear from the parties whether or not the defendant should have leave to amend the defence.
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