Jensen v Nationwide News Pty Ltd [No 2]
[2018] WASC 129
•27 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LTD [No 2] [2018] WASC 129
CORAM: TOTTLE J
HEARD: 15 FEBRUARY 2018
DELIVERED : 27 APRIL 2018
FILE NO/S: CIV 1535 of 2016
BETWEEN: DENNIS GEOFFREY JENSEN
Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
ANDREW BURRELL
Second Defendant
Catchwords:
Practice and procedure - Pleadings - Strike out - Defamation - Whether defence discloses reasonable cause of defence - Whether pleadings prejudice, embarrass or delay the fair trial of the action - Whether particulars sufficient
Legislation:
Defamation Act 2005 (WA), s 25
Rules of the Supreme Court 1971 (WA), O 20 r 13
Result:
Application successful in part
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| First Defendant | : | Mr J D MacLaurin |
| Second Defendant | : | 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):
Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82
Craib v Craib [2018] WASC 112
Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400
TOTTLE J:
Introduction
In this defamation action the plaintiff applied for:
(i)orders striking out the defendants' justification pleas;
(ii)the provision of further and better discovery;
(iii)the inspection of certain documents; and,
(iv)leave to administer interrogatories.
With the exception of the strike out application, the applications were resolved in the course of a hearing on 15 February 2018 by a combination of compromises reached between the parties and reasons given by me.
These reasons concern the strike out application.
The pleadings
The statement of claim[1]
[1] The current version of the statement of claim is the second amended statement of claim dated 30 October 2017 - for simplicity I will refer to it as the statement of claim.
The statement of claim pleads that the plaintiff was defamed by two articles published by the first defendant in 'The Australian' newspaper and on the 'The Australian' website. Each article was written by the second defendant. The first article was published on 31 March 2016 and the second on 1 April 2016. At the time of publication the plaintiff was a member of the House of Representatives for the division of Tangney in Western Australia and a member of the Liberal Party of Australia.
The plaintiff pleads that the defamatory imputations alleged to be conveyed by the two articles were also conveyed by 'tweets' published by the second defendant on his Twitter page. The plaintiff alleges that the tweets provided summaries of, and hyperlinks to, the articles published on the website.
For present purposes it is unnecessary to set out the full text of each article. References to the critical features of each article will suffice.
The 31 March 2016 article:
•referred to the plaintiff's position as a federal MP and that he was facing pre-selection in his 'blue-ribbon West Australian seat of Tangney';
•referred to a book written by the plaintiff entitled 'The Sky Warriors' that contained a description of sexual intimacy between two characters described by the defendants as 'surprisingly graphic';
•suggested that if he was not pre-selected he could pursue a 'back-up' career as a writer of 'far-fetched fiction';
•referred to the support for the plaintiff by a section of the community described in the article as 'the evangelical Christian Right';
•referred to the fact that a letter to a potential publisher prepared on the plaintiff's parliamentary letterhead contained a statement to the effect that the plaintiff's identity as the author of the book should remain a 'closely guarded secret'. The article contained statements alleging that the plaintiff had secretly used his parliamentary letterhead to seek a 'publishing deal'.
The defendants' counsel explained that the plaintiff's position in relation to the letter on the plaintiff's parliamentary letterhead referred to in the articles has changed over time.[2] Initially the plaintiff accepted that the letter had been sent to at least one potential publisher. A subpoena was issued to that publisher but the letter was not produced in answer to the subpoena. The plaintiff does not now accept that he sent the letter.
[2] ts 69 – the plaintiff's counsel did not dispute the explanation given by the defendant's counsel
The plaintiff alleges that two defamatory imputations were conveyed by the 31 March 2016 article, namely that:
(a)the plaintiff is a hypocritical purveyor of smut; and
(b)he improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'.[3]
[3] Statement of claim par 6.
The plaintiff alleges that the imputations were also conveyed by the publication of the 31 March article on the website and by the second defendant's tweet about the 31 March article.[4]
[4] Statement of claim pars 10 (website publication) and 14 (Twitter publication).
The 1 April 2016 article:
•referred to the pre-selection contest and to difficulties the plaintiff had encountered in obtaining pre-selection in the past;
•stated that the plaintiff had recently left the family home in Leeming to 'live about 60 kilometres away with his new girlfriend';
•stated that the plaintiff had admitted that he was wrong to have used his parliamentary letterhead to promote the publication of his book; and
•stated that the plaintiff conceded that he should not have used his official stationery to send sample chapters of his book to literary agents.
The plaintiff alleges that the second article conveys the following defamatory imputations:
(a)by leaving the family home to live with his new girlfriend, the plaintiff is a person devoid of the family values expected of a member of parliament;
(b)by leaving the family home to live with his new girlfriend, the plaintiff is a person devoid of the high moral standard expected of a member of parliament;
(c)by abandoning his electorate to live in Halls Head, the plaintiff failed to act in the best interests of persons residing in the division of Tangney for whom the plaintiff was elected to represent; and
(d)the plaintiff improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely a publishing deal for his book, 'The Sky Warriors'.[5]
[5] Statement of claim par 21.
The plaintiff alleges the imputations are also conveyed by the publication of the 1 April article on the website and by the second defendant's tweet about the 1 April article.[6]
The defence
[6] Statement of claim par 29 (website publication) and par 37 (Twitter page publication).
The defence has been through several iterations. The strike out application was argued by reference to a version of the defence contained in the Minute of Second Further Amended Defence and Counterclaim eLodged on 12 December 2017 and handed up in the course of the hearing. This version incorporated amendments referred to in the defendants' written submissions.[7]
[7] For simplicity I will refer to the pleading as 'the defence'.
In answer to the imputation that the plaintiff is a hypocritical purveyor of smut, the defendants plead the defence of truth pursuant to the common law or s 25 of the Defamation Act 2005 (WA) as follows:
7A.Further and in the alternative if, which is denied, the 31 March 2016 Article conveyed the meaning described at paragraph 6.1 of the Statement of Claim, then such meaning is true or true in substance or effect, and the Defendant has a defence of truth pursuant to the common law, alternatively section 25 of the Defamation Act (WA) 2005.
Particulars of Justification
(a) the Plaintiff's book 'The Sky Warriors' contained, in its early stages, a graphic sexual scene which involved multiple sexual acts;
(b) the sexual scene included the violent ripping of clothing, despite the protests of the woman concerned, and oral sex;
(c)the sexual scene was included, not as an essential element of any political and military plot to the novel, but rather to provide a titillating sex scene to appeal to a prurient interest;
(d)the Plaintiff was aware and conscious of the significance of including a titillating and sexually charged passages in the book and its effect; including its appeal to a prurient interest,
(e) such awareness is to be inferred, inter alia, from:
i. the Plaintiff's insistence, to those who promoted the book, that his identity remain anonymous; and
ii. the book otherwise containing relatively mundane content in respect to its political and military aspects which would have limited appeal, but for the sexual content.
(f)the Plaintiff held himself out, for political advantage, as one who embraced and lived by conservative Christian values, and in particular those values held by the Christian evangelistic movement which was influential within the Western Australian electorate and the Western Australia Liberal Party in particular;
(g)the Plaintiff knew, as was the case, that the conservative Christian sections of the Western Australian community and also amongst and as influential upon the Liberal Party, would likely be troubled by the sexual scenes in the book, or the use of such sexual scenes to make the book more attractive to readership as:
i.is evident from the Plaintiff's desire that his identity as author of the book be and remain confidential;
ii.from his understanding of the nature and beliefs of those elements of the Liberal Party;
iii.is evident from the Plaintiff not openly promoting or revealing the book as his.
(h)the Plaintiff's reasons for conducting himself in the manner described in (f) and (g) above were the advantage that the Plaintiff would obtain from the same, especially in relation to having the support of conservative Christians in respect to Liberal Party preselection and electibility in any Federal Election.
In answer to the imputation that the plaintiff improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely, a publishing deal for his book, 'The Sky Warriors', the defendants plead the defence of truth pursuant to the common law or s 25 of the Defamation Act as follows:
7B.Further and in the alternative if, which is denied, the 31 March 2016 Article conveyed the meaning described at paragraph 6.2 of the Statement of Claim, then such meaning is true or true in substance or effect, and the Defendant has a defence of truth pursuant to the common law, alternatively section 25 of the Defamation Act (WA) 2005.
Particulars of Justification
(a)The Plaintiff knew, as was the case, that his prospects of having his book published, given its content, would be enhanced by the fact that the author [was] a Federal Member of Parliament, as opposed to a general member of the public;
(b)The Plaintiff drafted up and sent or intended to send, and was prepared to use by sending, to publishers or prospective publishers, a letter upon his Parliamentary Letterhead promoting his book, seeking or being prepared to seek to gain further attention for his book than that which would otherwise be gained, were the author not a Federal Member of Parliament;
(c)The publication or intended publication of the promotion of the Plaintiff's book included to literary agent Curtis Brown and/or Victoria Gutierrez, among others.
(d)Further, the Plaintiff had conversations and discussions with publishers or prospective publishers, including with Victoria Gutierrez, promoting his book, during which he referred to and emphasised his position as a Federal Member of Parliament,;
(e) the successful publication of the Plaintiff's book would have yielded a financial benefit to the Plaintiff.
(f) Further particulars will be provided after discovery and/or subpoena.
The defendants go on to plead as follows:
7C.Further and in the alternative if, which is denied, the 31 March 2016 Article conveyed a defamatory meaning, which they deny, it conveyed the meaning that the plaintiff improperly exploited his position as a Federal Member of Parliament by using his position as a Federal Member to seek to obtain personal benefits, namely a publishing deal for his book 'The Sky Warriors' and;
(a)such meaning is true or true in substance or effect; and
(b)the Defendant has a defence of truth pursuant to the common law, alternatively section 25 of the Defamation Act (WA) 2005.
Particulars of justification
The plaintiff repeats paragraph 7B herein and the particulars thereto.
The pleas in paragraphs 7A, 7B and 7C are repeated in answer to the website and Twitter page publications of the 31 March article and 1 April article.[8]
[8] Defence pars 11A, 11B, 11C, 15A, 15B, 15C, 23B, 23C, 31B, 31C, 39A, 39B and 39C.
In answer to the imputation said to be conveyed by the 1 April article that 'by abandoning his electorate to live in Halls Head, the plaintiff failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent' the defendants plead the defence of truth pursuant to the common law or s 25 of the Defamation Act as follows:
23A.Further and in the alternative if, which is denied, the 1 April Newspaper Article conveyed a defamatory meaning, conveyed the meaning described at paragraph 21.3 of the Statement of Claim, then such meaning is true or true in substance or effect, and the Defendant has a defence of truth pursuant to the common law, alternatively section 25 of the Defamation Act (WA) 2005.
Particulars of Justification
(a)The Plaintiff was elected as the Federal Member for Tangney in 2004, at which time he was living in Halls Head, which is outside the electorate of Tangney.
(b)The Plaintiff continued to live at Halls Head whilst sitting as the Federal Member for Tangney between 2004 and 2006.
(c)After losing Liberal preselection for the seat of Tangney in 2006, the Plaintiff was advised by the then Prime Minister, John Howard, to move into the electorate of Tangney.
(d)The Plaintiff did in fact subsequently move into the electorate of Tangney, living in a house in Leeming.
(e)In or around December 2012, and whilst sitting as the Federal Member for Tangney, the Plaintiff moved out of Leeming, in the seat of Tangney, to Halls Head.
(f)In or around January 2014, and whilst sitting as the Federal Member of Tangney, the Plaintiff held himself out as residing in the seat of Tangney by way of a rental property in Booragoon, his name being on the lease of that property as tenant.
(g)The Plaintiff did not live in Booragoon, did not pay rent for the house in Booragoon, and continued to live in Halls Head.
(h)It is politically advantageous, of appeal to electors, and a sign of good faith for a parliamentarian to live in the electorate which he represents.
(i)Living in a family environment in the electorate one represents is politically advantageous, of appeal of electors, and a desirable attribute for a parliamentarian.
(j)A parliamentarian can best serve his electorate when he or she lives in the electorate.
The plea in paragraph 23A is repeated in answer to the website publication of the 1 April article.[9]
[9] Defence par 31A.
Applicable rules
Order 20 r 13(1) of the Supreme Court Rules 1971 (WA) provides:
(1)Subject to subrule (2), every pleading must contain the necessary particulars of any claim, defence or other matter pleaded including, without prejudice to the generality of the foregoing words -
(a)particulars of any misrepresentation, fraud, breach of trust, wilful default or undue influence on which the party pleading relies; and
(b)where a party pleading alleges any condition of the mind of any person, whether any disorder or disability of mind or any malice, fraudulent intention or other condition of mind except knowledge, particulars of the facts on which the party relies.
Subrules (2) and (3) are presently irrelevant. Subrule (4) provides:
(4)Where a party alleges as a fact that a person had knowledge or notice of some fact, matter or thing, then, without prejudice to the generality of subrule (3), the Court may, on such terms as it thinks just, order that party to serve on any other party -
(a)where he alleges knowledge, particulars of the facts on which he relies; and
(b)where he alleges notice, particulars of the notice.
The plaintiff contends that the paragraphs of which he complains do not disclose a reasonable cause of defence, alternatively that they may prejudice, embarrass or delay the fair trial of the action, and that accordingly they should be struck out pursuant to O 20 r 19(1)(a) or (c).
Applicable principles
The adequacy of particulars provided must be determined having regard to the purpose of particulars. In Barclay Mowlem Construction Ltd v Dampier Port Authority, Martin CJ stated:[10]
[The contemporary purposes of pleadings] include the definition of the issues to be determined in the case and enabling assessment of whether they give rise to an arguable cause of action or defence as the case may be, and apprising the other parties to the proceedings of the case they have to meet.
[10] Barclay Mowlem Construction Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82 [4].
Both counsel referred me to the review of the authorities concerning the particularisation of justification pleas in defamation actions by Le Miere J in Khan v Fairfax Media Publications Pty Ltd [No 3].[11] Without being exhaustive the propositions that emerge from the authorities and from his Honour's observations are as follows.
(1)A properly pleaded and particularised defence is vital to the efficiency and expedition of the trial and to ensure fairness as between the parties.
(2)A plaintiff is entitled to sufficient information about a defendant's case to ensure a fair trial and to guard against surprise.
(3)The degree of precision with which a case must be particularised will, in part, depend upon the nature of the defendant's case.
(4)A court should proceed with caution on an application to strike out a plea of justification or the particulars of such a plea.
(5)If the particulars of fact provided are not capable of establishing the truth of the imputation or the meaning sought to be justified by the defendants, or if there is a wide difference between the facts asserted in the particulars and the imputations, then the plea of justification should be struck out.
(6)Pleaded facts or particulars are not struck out merely because they are unnecessary. Unnecessary material and irrelevant material may be struck out if it will cause delay or embarrassment.
(7)Particulars do not themselves indicate the outer limits of what may be proved. Particulars indicate, in effect, topics on which evidence may be led and a sensible approach is always taken to the evidence which can be given, based on such particulars. That is not to say that particulars that merely indicate 'topics' will be sufficient. It is not sufficient that the particulars merely identify some 'topic' about which some evidence might emerge which would justify the imputation.
(8)A justification plea must be based on or supported by particulars that are both sufficient and pleaded with proper particularity. Particulars are sufficient if they are capable of proving the truth of the defamatory meaning sought to be justified. 'Proper particularity' requires the particulars to disclose the precise nature of the case against the plaintiff and to provide the plaintiff with sufficient detail to meet it.
[11] Khan v Fairfax Media Publications Pty Ltd [No 3] [2015] WASC 400.
There is a further matter that is relevant to the consideration of the pleadings in this case and that is that the defendants have elected for the proceedings to be tried by a jury. This reinforces the need for the pleaded cases to be expressed with clarity, certainty and precision. At trial evidence-in-chief will be adduced orally but the current practice of exchanging witness statements before the trial will be followed.
The disputed pleadings, submissions and disposition
Paragraphs 7A, 11A, 15A and 39A
The plaintiff has a number of complaints about these paragraphs which, as noted earlier, plead the defences of common law and statutory defences of truth to the 'hypocritical purveyor of smut' imputation.
First, the plaintiff submits that the particulars provided in support of the justification of the 'hypocritical purveyor of smut' meaning are not capable of proving the truth of that meaning. I do not accept that submission. In my view the particulars are capable of establishing the meaning alleged. Particulars (a) to (d) are capable of conveying the meaning that the book written by the plaintiff contained material that can be described as 'smut'. Whilst there is some uncertainty as to precisely what is being pleaded in particular (g) (a matter to which I return below), particulars (f) to (h) are capable of conveying that the plaintiff was hypocritical.
Second, the plaintiff submits the defendants have failed to provide proper particulars of the facts relied upon for the allegation concerning the plaintiff's 'condition of mind' in particular (d) (‘the plaintiff was aware and conscious’), and the plaintiff's knowledge in particular (g). This submission engages subrules (1) and (4) of O 20 r 13 of the RSC. A party pleading a condition of mind, except knowledge, is obliged to provide particulars of the facts on which the party relies.[12] A court may order a party alleging that a person had knowledge of some fact or matter to provide particulars of the facts upon which the party relies.[13] The plea in particular (d) that the plaintiff was ‘aware and conscious of’ is in terms a plea of knowledge. Counsel for the defendants submitted the defendants were not obliged to provide particulars of the facts relied upon by the defendants to establish the plaintiff’s knowledge. The defendants’ counsel submitted that they did not wish to be ‘hamstrung’ by the particulars and prevented from arguing, for example, that the plaintiff’s awareness was derived from ‘life’s experience’.[14] A party is taken to know his or her own mind and cannot be taken by surprise by a pleading alleging what he or she knew. There is a further consideration which bears upon this issue and it is that a party should not plead evidence. Distinguishing between material facts, particulars and evidence is often as difficult as it is unprofitable. The defendants are not required to, and should not, plead the evidence by which they will establish knowledge on the plaintiff’s part but it is difficult to draw a ‘bright line’ distinction between evidence and particulars. In the context of pleadings the court is concerned with practical justice. Practical justice is achieved by a pleading that informs a party of the opponent’s case with the required degree of clarity and precision. In this case in particular (d) the defendants plead the plaintiff knew of the significance of including a ‘titillating and sexually charged passage’ in his book and the defendants have provided some particulars of some of the matters from which this knowledge may be inferred even though they were not obliged to do so. As pleaded this particular is sufficient to inform the plaintiff of the case he must meet. The particular is not embarrassing and I decline to strike it out. As I explain at [36] I will strike out particular (g) for reasons other than the absence of particulars of knowledge.
[12] Supreme Court Rules 1971 (WA) O 20 r 13(1)(b)
[13] Supreme Court Rules 1971 (WA) O 20 r 13(4)
[14] ts 67
Third, the plaintiff submits that in a number of respects the particulars are vague, ambiguous, internally inconsistent, and 'so bereft of detail that he cannot understand the case against him'. In other words the plaintiff complains the particulars are embarrassing. The plaintiff's specific complaints are as follows:
(a)In particulars (a) to (c) the defendants refer to a 'sexual scene' yet in particular (d) they refer to 'sexual scenes'.
(b)In particular (d) it is not clear whether the defendants intend to refer to a singular 'titillating and sexually charge passage' or several such passages.
(c)In particular (d) the use of the words 'and its effect including' before 'its appeal to a prurient interest' does not disclose the full extent of the defendant's case.
(d)Likewise the use of 'inter alia' in particular (e) does not disclose the full extent of the defendants' case.
(e)Particular (e)(i) is vague in that it is not clear what is meant by 'the plaintiff's insistence' nor to whom it is alleged the plaintiff was insistent.
(f)Particular (f) is vague because it is not clear how the plaintiff 'held himself out for political advantage'.
(g)It is unclear what is being alleged in particular (g) by the words 'amongst and as influential upon the Liberal Party'.
Complaints (a) and (b) appear to me to arise from typographical errors. That said, the defendants should make it clear whether they are referring to one or more sexual scenes and one or more passages in the book. In oral submissions the defendants' counsel accepted that they were matters that could be remedied.[15]
[15] ts 65.10, 68.10.
The inclusion of the words 'its effect including its appeal to prurient interest' in particular (d) does obscure the nature and extent of the defendants' case. As Le Miere J said recently:[16]
The vice of the word 'including' in a pleading is that it leaves open to the pleader to rely upon things not specified or not specified with sufficient particularity and therefore of which the opponent has had no or no proper notice. The word 'including' means containing part of a set. The idea that what is being spoken about is not limited to what is actually said is inherent in the meaning of the word 'including'. If it is clear from the context that although the allegations listed are part of a set, the pleader relies only on the allegations listed then the opponent knows the case he has to meet. If on the other hand the pleader lists only some allegations in a set whilst in effect reserving the right to rely on other unspecified allegations then the opponent does not know the case he has to meet. Like other aspects of pleading the answer will usually be found in considerations of practical justice rather than detailed analysis of the language employed.
[16] Craib v Craib [2018] WASC 112 [18].
The plea of, 'its effect including its appeal to prurient interest', is a specific allegation that the plaintiff was aware of the significance of the inclusion of a passage in his book and if the defendants rely on something more than the plaintiff's awareness of the book's 'appeal to prurient interest' they should plead what it is they rely on. I consider that the words 'its effect including' in particular (d) are embarrassing and should be struck out.
For the reasons given at [29] I am satisfied that the defendants’ plea of the plaintiff’s knowledge in particular (e) is not embarrassing and I decline to strike it out even though it uses the expression inter alia as a synonym for ‘including’.
In oral submissions the defendants' counsel indicated that particular (e) would be amended.[17] I consider, however, that the complaints about the lack of particularity in the pleas in particular (e) and particular (f) can be addressed by a request for further and better particulars. The existing particulars are sufficient to disclose the nature of the defendant's case. I will not strike out them out.
[17] ts 66.4 - 6.
In its present form particular (g) is unintelligible. It appears to me that the link between what it is the plaintiff is alleged to have known and the Liberal Party has been omitted. In its present form the particular is embarrassing. It will be struck out in its entirety. Parenthetically, any repleading of this paragraph should address the inconsistency between the reference to 'sexual scene' in particulars (a) to (c) and 'sexual scenes' in particular (g).
Paragraph 7B, 7C, 11B, 11C, 15B, 15C, 23B, 23C, 39B and 39C
These paragraphs plead the defences of common law and statutory defences of truth to the imputation that the plaintiff improperly exploited his position as a Federal Member of Parliament by using his parliamentary letterhead to seek to obtain a personal financial benefit, namely, a publishing deal for his book, 'The Sky Warriors'. The plaintiff complains about a number of the particulars as follows.
Particular (b)
For ease of reference I will reproduce particular (b). It reads:
The Plaintiff drafted up and sent or intended to send, and was prepared to use by sending, to publishers or prospective publishers, a letter upon his Parliamentary Letterhead promoting his book, seeking or being prepared to seek to gain further attention for his book than that which would otherwise be gained, were the author not a Federal Member of Parliament. (emphasis added)
The plaintiff submits the words 'or intended to send, and was prepared to use by sending' and 'or being prepared to seek' in this particular are not capable of justifying the pleaded imputation which is that the plaintiff 'improperly exploited' his position as a member of Parliament, not that he intended to do so or was prepared to do so.
The defendants answer the plaintiff's attack on particular (b) by submitting that the fact that the letter was not sent does not detract from the substantial truth of the imputation. The defendants submit that the fact that the plaintiff intended to send the letter or was prepared to send the letter is sufficient to make out the substantial truth of the imputation.
In my opinion the plaintiff's criticism of the defendant's inclusion in this particular of the words 'or intended to send, and was prepared to use by sending' and 'or being prepared to seek' is valid. The imputation is that the plaintiff 'improperly exploited' his position. To allege that the plaintiff intended to do so or was prepared to do so is too far removed from that imputation to be capable of justifying the imputation that the plaintiff, in fact, improperly exploited his position. The words 'or intended to send, and was prepared to use by sending' and 'or being prepared to seek' should be struck out.
The plaintiff also submits that the words 'publishers or prospective publishers' are embarrassing because it is not clear what difference, if any, there is between a 'publisher' and a 'prospective publisher'. Whether the defendants' case is that there is a relevant distinction between publishers or prospective publishers, and if so, what the distinction is, is not readily apparent. I accept that there may be a distinction and I am not persuaded that the words are embarrassing. I encourage, however, the defendants to reconsider the use of the phrase 'publishers or prospective publishers'.
The plaintiff also complains that the defendants have not pleaded to how many publishers or prospective publishers the book was sent to and has not identified them in the pleading. This is not a basis upon which the particular should be struck out. It is a matter that can be addressed by a request for further and better particulars.
Particular (c)
Particular (c) reads:
The publication or intended publication of the promotion of the Plaintiff's book included to literary agent Curtis Brown and/or Victoria Gutierrez, among others.
The plaintiff submits that in the context of the imputation that he improperly exploited his position as a member of Parliament the words 'intended publication' are unclear and are not capable of sustaining that imputation. I accept that submission. Those words should be struck out. Without those words the particular will read, 'The publication of the promotion of the plaintiff's book included …'. Even without the deletion of the words 'or intended publication' what is meant by the 'publication … of the promotion' is unclear. Attention is required to the syntax.
The plaintiff also submits that the inclusion of the words 'among others' is embarrassing because the particular does not inform the plaintiff with adequate precision of the case he has to meet. As I have already noted the use of 'including' and synonymous phrases such as 'among others' is potentially objectionable and whether a particular use is objectionable will, as Le Miere J has said, usually be found in considerations of practical justice. I do not accept the submission that the use of the phrase 'among others' in particular (c) is embarrassing. The particular informs the plaintiff of the nature of the case he is required to meet. If the defendants intend to adduce evidence to the effect that the plaintiff promoted the book by communicating with people other than those named they will be required to disclose the relevant witness statements or communications in documentary form in advance of the trial. In a practical sense there is no potential for the plaintiff to be taken by surprise.
Particular (d)
Particular (d) reads:
Further, the Plaintiff had conversations and discussions with publishers or prospective publishers, including with Victoria Gutierrez, promoting his book, during which he referred to and emphasised his position as a Federal Member of Parliament.
The plaintiff repeats his submissions about the use of the word 'including' and complains that the defendants have not identified the other 'publishers or prospective publishers' and have not particularised the 'conversations or discussions' that are relied upon. For the reasons given in relation to the use of the words 'among others' in particular (c) I do not consider that the use of the word 'including' in the context of this particular is embarrassing. I do not consider that the lack of particulars of 'conversations and discussions' is embarrassing. The particular informs the plaintiff of the case he has to meet. The obligations on the defendants to disclose their evidence prior to trial will ensure that he is not taken by surprise.
Paragraph 23A and 31A
These paragraphs plead the common law and statutory defences of truth to the imputation that by abandoning his electorate to live in Halls Head, the plaintiff failed to act in the best interests of persons residing in the division of Tangney for whom the Plaintiff was elected to represent.
The plaintiff submits that the particulars provided cannot amount to a justification of an imputation that the plaintiff 'failed to act in the best interests' of his constituents.
The particulars read:
(a)The Plaintiff was elected as the Federal Member for Tangney in 2004, at which time he was living in Halls Head, which is outside the electorate of Tangney.
(b)The Plaintiff continued to live at Halls Head whilst sitting as the Federal Member for Tangney between 2004 and 2006.
(c)After losing Liberal preselection for the seat of Tangney in 2006, the Plaintiff was advised by the then Prime Minister, John Howard, to move into the electorate of Tangney.
(d)The Plaintiff did in fact subsequently move into the electorate of Tangney, living in a house in Leeming.
(e)In or around December 2012, and whilst sitting as the Federal Member for Tangney, the Plaintiff moved out of Leeming, in the seat of Tangney, to Halls Head.
(f)In or around January 2014, and whilst sitting as the Federal Member of Tangney, the Plaintiff held himself out as residing in the seat of Tangney by way of a rental property in Booragoon, his name being on the lease of that property as tenant.
(g)The Plaintiff did not live in Booragoon, did not pay rent for the house in Booragoon, and continued to live in Halls Head.
(h)It is politically advantageous, of appeal to electors, and a sign of good faith for a parliamentarian to live in the electorate which he represents;
(i)Living in a family environment in the electorate one represents is politically advantageous, of appeal of electors, and a desirable attribute for a parliamentarian.
(j)A parliamentarian can best serve his electorate when he or she lives in the electorate.
In my view the particulars provided are not capable of establishing the truth of the imputation that the plaintiff failed to act in best interests of his constituents. Particulars (a) to (g) provide the background to what the defendants allege were the plaintiff's living arrangements at various times. Particulars (h) and (i) are directed to matters that are 'politically advantageous'. There is nothing in either the particulars going to the background or those going to matters that are 'politically advantageous' that is capable of justifying the imputation. Particular (j) is a general statement that a parliamentarian 'can best serve' his electorate when he or she lives in the electorate. This is not capable of justifying the imputation, which is not that the plaintiff did not 'best serve' his electorate but that he 'failed to act in the best interests of his electorate'. To say that a person could have approached the discharge of his or her duty in a better way does not mean that he or she failed to discharge the duty. These paragraphs should be struck out.
Conclusion
For the reasons given above:
(a)I decline to strike out paragraphs 7A, 7B and 7C of the defence and the subsequent paragraphs which repeat the pleas in paragraphs 7A, 7B and 7C in their entirety on the ground that they fail to disclose a reasonable cause of defence.
(b)I will strike out the particulars or words shown in the table below. Where those particulars or words are incorporated in subsequent paragraphs of the defence those particulars or words will also be struck out.
Paragraph
Section to be struck out
7A(d)
The words 'its effect; including'
7A(g)
Entire paragraph
7B(b)
The words 'or intended to send, and was prepared to use by sending' and 'or being prepared to seek'
7B(c)
The words 'intended publication'
23A
Entire paragraph
The defendants will have leave to replead.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
ASSOCIATE TO THE HONOURABLE JUSTICE TOTTLE30 MAY 2018
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