Jensen v Nationwide News Pty Limited [No 10] - [2019] WASC 172

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   JENSEN -v- NATIONWIDE NEWS PTY LIMITED [No 10] [2019] WASC 172
CORAM:   QUINLAN CJ
HEARD:   1 MAY 2019
DELIVERED          :   1 MAY 2019
PUBLISHED           :   22 MAY 2019
FILE NO/S:   CIV 1535 of 2016
BETWEEN:   DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LIMITED
First Defendant
ANDREW BURRELL
Second Defendant

Catchwords:

Defamation - Application to strike out pleadings - Lateness of pleadings - Inconsistency of pleadings - Case management considerations

Legislation:

Rules of the Supreme Court 1971 (WA)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Plaintiff	:	Mr M L Bennett
First Defendant	:	Mr T Blackburn SC and Mr J D MacLaurin
Second Defendant	:	Mr T Blackburn SC and Mr J D MacLaurin

Solicitors:

Plaintiff	:	Bennett & Co
First Defendant	:	MacPherson & Kelley Lawyers
Second Defendant	:	MacPherson & Kelley Lawyers

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

Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735
Jensen v Nationwide News [No 5] [2018] WASC 360

QUINLAN CJ:

(This judgment was delivered extemporaneously on 1 May 2019 and has been edited from the transcript.)

This is an application by Dr Jensen, the plaintiff (and defendant by counterclaim) to strike out certain pleadings in this defamation action. The background to the plaintiff's claim, and the second defendant's counterclaim, is set out in Jensen v Nationwide News[No 5] [2018] WASC 360 per Tottle J at [4].
The strike out application relates to the counterclaim, and in particular the reply to the defence to counterclaim contained in the defendants' reply to the plaintiff's fourth amended reply and defence to counterclaim dated 1 April 2019 (the Defendants' Reply).
The impugned pleading is [8(a), (b) and (c)] of the Defendants' Reply, which provides:
8.The Defendants say further, as to paragraphs 21.2A, 21.2B, 21.3, 21.4 and 21.5 of the R & DCC that:
(a)the matters pleaded therein are incapable of justifying and do not justify the imputations arising from the matters complained of;
(b)further, and alternatively, if any omission to contact the plaintiff prior to publication of the articles referred to at paragraphs 21.2A, 21.2B, 21.3, 21.4 and 21.5 of the R & DCC were capable of justifying the imputations arising from those articles, to the extent that those articles contained, as regards the plaintiff, no facts that were open to dispute, there was no requirement to contact the plaintiff, no need to do so, and no breach of the requirement set out at paragraph 52A(a)i and 57A(a)i of the Third Amended Defence and Counterclaim (the TADCC);
(c)further and alternatively, the second defendant telephoned Mr Conway in any event on or about 29 January 2016 and sought a response from the plaintiff as to the matters which were the subject of the articles referred to at paragraphs 21.2A and 21.2B of the R & DCC. Mr Conway told the second defendant that the plaintiff would not and would never comment on preselection matters. The second defendant thereby discharged the requirement set out at paragraph 52A(a)i and 57A(a)i, and there was no breach of that requirement in publishing those articles;
This plea obviously must be put in context. It is a plea that relates to subparagraphs of [21] of the plaintiff's amended reply and defence to the counterclaim dated 8 February 2019 (and in particular [21.2A], [21.2B], [21.3], [21.4] and [21.5]) (the Defence to Counterclaim). Those pleas are, in turn, in response to the defamatory imputations pleaded in the counterclaim contained in the Amended Substituted Defence and Counterclaim dated 1 February 2019 (Counterclaim).
The Counterclaim, relevantly, pleads the following imputations said to arise from two radio interviews conducted by the plaintiff on 4 April 2016:[1]
[that Mr Burrell] acted contrary to his professional duty as a journalist by failing to contact or even try to contact the Defendant by Counterclaim prior to writing an article about him.
[1] The imputation is pleaded as a false innuendo and a true innuendo in relation to two separate radio interviews and, hence, appears in the Counterclaim at [52], [52A], [57] and [57A].
The Defence to Counterclaim pleads:
21In the event that the imputations pleaded at paragraphs 52 and 57 of the Defence or any of them are found to arise (which is denied) and are otherwise found to be defamatory of Mr Burrell (which is denied), Dr Jensen says that they were substantially true and thereby justified at common law and pursuant to section 25 of the Defamation Act in that:
…
21.2Aon or about 27 February 2016, Mr Burrell wrote and the defendants published on The Australian Website the article 'Dennis Jensen to face challenge for seat' (which article concerned the Liberal Party pre-selection campaign for the seat of Tangney being contested by Dr Jensen and Mr Morton), without Mr Burrell contacting or trying to contact Dr Jensen in circumstances where Mr Burrell had been in contact with Mr Morton about the subject matter of the article; …
21.2Bon or about 23 March 2016, Mr Burrell wrote and the defendants published:
21.2B.1at page 7 of The Australian Newspaper the article 'Shootouts in west as Libs vie for places'; and
21.2B.2on The Australian Website the article 'Federal election 2016: Shootouts in west as Libs vie for preselection',
(which articles were in substantially the same terms and concerned the Liberal Party pre-selection campaign for, among other seats, the seat of Tangney being contested by Dr Jensen and Mr Morton), without Mr Burrell contacting or trying to contact Dr Jensen in circumstances where Mr Burrell had been in contact with 'Liberal sources' and 'Liberal Party elders' (as those people are identified in the article, the identify of which people being unknown to Dr Jensen) about the subject matter of the article;
21.3 on or about 31 March 2016, Mr Burrell wrote and the defendants published the article referred to in paragraph 40.5 of the Statement of Claim, without Mr Burrell contacting or trying to contact Dr Jensen;
21.4 on or about 3 April 2016, Mr Burrell wrote and the Defendants published the article referred to in paragraph 40.7 of the Statement of Claim, without Mr Burrell contacting or trying to contact Dr Jensen;
21.5 on or about 4 April 2016, Mr Burrell wrote and the Defendants published the article referred to in paragraph 40.9 of the Statement of Claim, without Mr Burrell contacting or trying to contact Dr Jensen.
The substance of each of these pleas in the Defence to Counterclaim is that, on the date specified in each sub-paragraph, Mr Burrell wrote, and the defendants published, an article in relation to Dr Jensen without Mr Burrell contacting or attempting to contact Dr Jensen. Those pleas are proffered as particulars of the truth to the imputation pleaded in the Counterclaim that Mr Burrell acted contrary to his professional duty as a journalist by failing to contact, or even try to contact, Dr Jensen prior to writing an article about him.
Essentially, the Defence to Counterclaim pleads that the imputation that Mr Burrell acted contrary to his professional duty as a journalist by failing to contact, or even try to contact, Dr Jensen prior to writing an article about him was true because, so Dr Jensen pleads, Mr Burrell had done so on other occasions.
The impugned pleading, in [8] of the Defendants' Reply pleads that:
(a)those other occasions upon which Mr Burrell was alleged to have written articles without contacting Dr Jensen 'are incapable of justifying and do not justify the imputations arising from matters complained of';
(b)on those other occasions, the circumstances of the publication of the other articles was such that there were no facts that were open to dispute (and there was therefore no requirement to contact Dr Jensen); and
(c)on two of the previous articles that there was, in fact, an attempt to contact, or contact was made via Mr Conway, the representative of Dr Jensen.
Dr Jensen says that the plea should be struck out on a number of bases. First, on the basis of its lateness (having appeared for the first time in the Defendants' Reply on 1 April 2019). Secondly, Dr Jensen submits that the pleading is inconsistent with the other pleadings filed by the defendants, contrary to O 20, r 11 of the Rules of the Supreme Court 1971 (WA). Thirdly, Dr Jensen submits that the pleading is otherwise embarrassing.
As regard the lateness of the pleading, I accept that the Defendants' Reply is late in the sense that it was only filed on 1 April 2019, well after the time within which it ought to have been filed. Nevertheless, I note that [21.3] to [21.5] of the Defence to Counterclaim appeared for the first time in the version of that pleading filed on 8 January 2019, and [21.2A] and [21.2B] first appeared in the version filed on 8 February 2019. In the circumstances, therefore, while late, the impugned pleadings are responsive to amendments that were not made by Dr Jensen himself until this year.
In relation to the allegation of inconsistency, Dr Jensen submits that the Defendants' Reply, in particular at [8(b)], is inconsistent with the imputation pleaded in the Counterclaim because that imputation pleads that the plaintiff acted contrary to his professional duty as a journalist by failing to contact or even trying to contact the defendant. The plaintiff submits that the Defendants' Reply represents a shift in the nature of the imputation pleaded in the Counterclaim, by adding a qualification to the professional duty in the Counterclaim (i.e. that there were 'no facts that were open to dispute').
In my view, there is no inconsistency in the pleading in the sense identified in O 20, r 11, such that it should be struck out. The pleadings in the Counterclaim and the Defendants' Reply are directed to separate issues. One pleading, the Counterclaim, concerns the meaning to be given to the particular radio interviews to which Dr Jensen was a party, and whether or not those interviews carried the particular defamatory meaning pleaded. The other (the Defendants' Reply), by contrast, is a response to the pleading to the effect that that imputation is true.
In that regard, in order to establish the meaning pleaded in the imputation in the Counterclaim, it is not necessary for the Court to reach any conclusion as to the extent of any particular professional duty. Rather, what is required is to determine whether the words used by Dr Jensen in the interviews would have conveyed the meaning to the ordinary reasonable listener.
When it comes to the defence of justification by truth, however, it would be necessary to identify and determine what, in fact, the relevant professional obligation was. In that regard, it would be a matter of fact, whether, in all of the circumstances, the other occasions identified in the Defence to Counterclaim justify the imputation pleaded in the Counterclaim itself. In those circumstances, in my view, it is open to the defendants, in reply, to identify that there were relevant differences attaching to those other occasions, which meant that what occurred on those other occasions could not justify the matter pleaded.
For these reasons, in my view the Defendants' Reply is not inconsistent with the Counterclaim, or otherwise embarrassing. While the pleading is late, Dr Jensen is not prejudiced in responding to the Defendants' Reply, and the defendants should be entitled to pursue it at trial.
Finally, I note that, in the context of this application, an issue arose as to whether indeed the imputation pleaded in the Counterclaim was a general plea as to Mr Burrell's conduct, or a more confined plea as to the particular occasion referred to in the radio interviews. The significance of this issue is that it may be relevant to whether Dr Jensen is entitled to rely upon matters unrelated to the material conveying the imputation, as the Defence to Counterclaim does.[2]
[2] See Anderson v Mirror Newspapers Ltd (No 2) (1986) 5 NSWLR 735, 737 (Hunt J).
The defendants, for example, submit that the reference in the imputation to Mr Burrell writing 'an article', particularly having regard to the content of the interviews themselves, refers to a single occasion (or, at best, two single occasions of the relevant professional failing, rather than a generalised plea). If that be correct, it may affect the relevance of the matters in the Defence to Counterclaim.
This has not previously been a matter raised by the defendants in relation to [21] of the Defence to Counterclaim. It is not appropriate at this stage of the proceedings to consider whether or not those pleas are vulnerable to attack on that basis. The pleadings are in the Defence to Counterclaim, and they will stand. Nevertheless, the fact that the Defence to Counterclaim proceeds upon the basis that the imputation in the Counterclaim is a generalised one, is such that the defendants are entitled to respond to it upon that same basis.
For those reasons, I would not strike out [8] of the Defendants' Reply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Research Associate to the Honourable Chief Justice Quinlan
22 MAY 2019