Jensen v Nationwide News Pty Ltd [No 3]
[2018] WASC 252
•24 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LTD [No 3] [2018] WASC 252
CORAM: TOTTLE J
HEARD: 16 AUGUST 2018
DELIVERED : 24 AUGUST 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 pleadings disclose cause of action - Whether pleadings may prejudice, delay or embarrass fair trial
Legislation:
Defamation Act 2005 (WA) s 36
Rules of the Supreme Court 1971 (WA) O 21 r 19
Result:
Application partially successful
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):
Clark v Bain [2008] EWHC 2636
Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658
General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125
Harrigan v Jones [2000] NSWSC 814
Henry v News Newspapers Ltd [2011] EWHC 1058
Jensen v Nationwide News Pty Ltd [2017] WASC 63
Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986)
Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497
TOTTLE J:
Introduction
In these defamation proceedings the defendants have applied to strike out:
(a)pars 40.5 - 40.19,[1] 40.20 to 40.29 of the third amended statement of claim - paragraphs that plead conduct that is alleged to have aggravated the hurt, damage and distress suffered by the plaintiff and pars 42.5, 43.3 and 43.3.4 ‑ paragraphs that plead matters relied on in support of the plaintiff's claim for special damages; and
(b)pars 3.3, 4.3.8, 4.3.10 to 4.3.12 and 6.3 of the amended reply and defence to counterclaim - paragraphs that plead lack of reasonableness and malice in answer to the defendants' qualified privilege defences.
[1] Excluding par 40.14A.
In the alternative to the application to strike out, the defendants seek further and better particulars of the impugned paragraphs. The two amended pleadings were served on 5 July 2018. Unless it is necessary to distinguish between the current pleadings and earlier versions I will refer to them simply as the statement of claim and the reply.
The proceedings are listed for trial before a jury commencing on 12 November 2018. The proceedings include a counterclaim by the second defendant for damages for defamation arising from comments made by the plaintiff critical of the conduct of the second defendant in the course of radio broadcasts on 4 April 2016.[2]
[2] The circumstances giving rise to the counterclaim are explained in more detail in my reasons determining the plaintiff's application to strike out parts of an earlier version of the counterclaim: Jensen v Nationwide News Pty Ltd [2017] WASC 63.
The pleadings - 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. I will refer to the alleged defamatory publications collectively as the 'Articles'.
The 31 March article:
(a)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';
(b)referred to a book written by the plaintiff entitled 'The Sky Warriors' (the Book) that contained a description of sexual intimacy between two characters described by the defendants as 'surprisingly graphic';
(c)included an apparent quote from a passage describing sexual intimacy between two characters;
(d)suggested that if he was not pre-selected he could pursue a 'back‑up' career as a writer of 'far-fetched fiction';
(e)referred to the support for the plaintiff by a section of the community described in the article as 'the evangelical Christian Right';
(f)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 plaintiff's position in relation to the letter on the plaintiff's parliamentary letterhead referred to in the Articles (the Letter) has changed over time. 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.
The plaintiff alleges that two defamatory imputations were conveyed by the 31 March 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 the Book.[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 article:
(a)referred to the pre-selection contest and to difficulties the plaintiff had encountered in obtaining pre-selection in the past;
(b)stated that the plaintiff had recently left the family home in Leeming to 'live about 60 kilometres away with his new girlfriend';
(c)stated that the plaintiff had admitted that he was wrong to have used his parliamentary letterhead to promote the publication of his book;
(d)contained the following statements attributed to the plaintiff:
… he believed the leaking of the manuscript was an attempt to damage him ahead of this weekend's preselection vote. 'It's really interesting it's come out a few days before the preselection' he told ABC radio in Perth. 'I see this as an attempt to trash my reputation.'
(e)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 the Book.[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]
[6] Statement of claim par 29 (website publication) and par 37 (Twitter page publication).
In pars 40.1 to 40.30 of the statement of claim the plaintiff pleads 32 aspects of the defendants' conduct to support a claim for aggravated damages.[7] The conduct comprises:
[7] There is a numbering error - there are two paragraphs 40.23.
(a)publications by the first defendant subsequent to the publication of the Articles that are alleged to have been calculated to:
(i)embarrass and humiliate the plaintiff (pars 40.5 - 40.12, 40.14 and 40.18);
(ii)improperly deter the plaintiff from prosecuting his action (pars 40.13 and 40.15);
(iii)denigrate the plaintiff and deter him from prosecuting his action (pars 40.16, 40.17 and 40.19);
(b)a failure by the second defendant to apologise when the issue of an apology was raised directly with him by the plaintiff (par 40.14A);
(c)pleading justification and maintaining that plea (pars 40.20 ‑ 40.23 (the first 40.23));
(d)writing the Articles despite having only three pages of the Book ((the second) par 40.23);
(e)writing the Articles with the intention of causing political damage to the plaintiff for the benefit of Mr Ben Morton (par 40.24);
(f)failing to make enquiries of Ms Victoria Gutierrez or Curtis Brown - Curtis Brown being the publishing house and Ms Gutierrez being the addressee of the Letter - before publishing the Articles (par 40.25);
(g)failing to make enquiries of the plaintiff or of his partner at the time, who is now his wife, before publishing the Articles (pars 40.26 and 40.27);
(h)filing and maintaining the second defendant's counterclaim (par 40.28);
(i)delay in filing and serving various court documents (par 40.29); and
(j)avoidance by two journalists employed by the first defendant of service of subpoenas issued by the plaintiff (par 40.30).
Paragraphs 40.5 - 40.18 were first pleaded by the plaintiff on 19 August 2016 and par 40.19 was added on 18 August 2017.
The plaintiff pleads he has suffered specific loss and injury in that, amongst other things, 'since 2 July 2016, [he] had been and remains unable to obtain alternative employment' (par 42.5).[8] He pleads that but for the Articles he would have been reselected and elected as a member of Parliament in the July 2016 election or '[he] would have been able to obtain alternative employment' (par 43.3) and alleges a 'loss of capacity to earn income from alternative employment' (par 43.3.4 - a particular to par 43.3). The plaintiff pleads that further and better particulars will be provided in due course.
[8] 2 July 2016 being the date on which the plaintiff lost office as a Member of Parliament.
Third further amended defence and counterclaim
Relevantly, the defendants plead the defences of justification, statutory qualified privilege and extended qualified privilege at common law. Three aspects of the defence have present relevance ‑ they are that:
(a)the defendants have pleaded specifically to each of pars 40.1 to 40.18 of statement of claim;
(b)in their justification plea 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 defendants plead, amongst other things, that:
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 in a Booragoon property, which was a leasehold property with the Plaintiff's name upon the lease as tenant.
(c)the qualified privilege defences assert that the defendants acted reasonably in publishing the Articles, the defendants, however, do not rely on the sources of the information referred to in the Articles or the integrity of those sources.
In his counterclaim the second defendant pleads the imputations said to arise from the plaintiff's statements in the course of the radio broadcasts on 4 April 2016 in the following terms:[9]
(a)[the second defendant] acted contrary to his professional duty as a journalist by failing to contact the plaintiff prior to writing an article about him;
(b)[the second defendant] acted unprofessionally by writing an article about the plaintiff with reckless disregard to its truth or falsity, being motivated by serving the political objects of others in damaging the plaintiff, rather than a legitimate journalistic purpose.
[9] The second defendant pleads the imputations as arising from the natural and ordinary meaning of the words, alternatively as true innuendoes.
Amended reply and defence to counterclaim
In his reply the plaintiff denies that the defendants acted reasonably in publishing the Articles given, amongst other things, the source of the information conveyed by the Articles. He pleads that the defendants knew that the source was not a reliable source of impartial and accurate information because the source was, and I paraphrase, someone associated with the liberal party opposed to the plaintiff's nomination for pre-selection (pars 3.3 and 6). The relevant feature of this plea is that the plaintiff does not identify the source and acknowledges that he does not know who the source is. I set out the plea in full later in these reasons.
The plaintiff pleads that the Articles were published maliciously (pars 4.3 and 7). The matters relied upon to establish malice include:
(a)the source of the documents referred to in the articles published by the defendants after the publication of the Articles, who the plaintiff infers was likely to be the same person(s) who provided the Letter and 3 pages of the Book (par 4.3.8);
(b)the source and integrity of the source of the Letter and the 3 pages of the Book (par 4.3.10);
(c)the plea in the defendants' amended defence and counterclaim filed on 12 December 2017 that the plaintiff purported to live at a rental property in Booragoon notwithstanding that: the defendants did not have a copy of the lease of the property; they had made no enquiries of the plaintiff about the lease; and, other than the plaintiff's name being on the lease, the defendants had no basis to suggest that the plaintiff 'purported to live' in Booragoon (par 4.3.11);
(d)the plea in defendants' second amended defence and counterclaim and the plea in the defendants' third amended defence and counterclaim that the plaintiff held himself out as residing in the seat of Tangney notwithstanding the same factors as were relied upon for the purpose of par 4.3.11 (par 4.3.12);
Relevant rule and principles
The application is brought under O 20 r 19 (1) of the Rules of the Supreme Court 1971 (WA) (RSC) on the grounds that the impugned paragraphs either disclose no cause of action or may prejudice, delay or embarrass the fair trial of the action. The defendants contend that pars 3.3, 4.3.8 and 4.3.9 of the statement of claim constitute an abuse of process. An application to strike out must be made within 21 days of service of the pleading.[10] If an amendment is made without leave pursuant to O 21 r 3(1) the party served with the amended pleading must apply to strike out the amended pleading within 7 working days after the day upon which it was served. Order 20 r 19 is to be construed and applied so as to best ensure the case flow management objects set out in O 1 r 4B(1) of the RSC.[11]
[10] Rules of the Supreme Court 1971 (WA) O 20 r 19(3)(a).
[11] Rules of the Supreme Court 1971 (WA) O 1 r 4B(2).
It is well-established that the discretion to strike out a plea on the grounds that it discloses no reasonable cause of action should be exercised with great care and only if the plea is so clearly untenable that it cannot possibly succeed.[12]
[12] General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125, 128 - 130; Kimberley Downs Pty Ltd v Western Australia (Unreported, WASC, Library No 6414, 25 August 1986).
As to the purpose of particulars in a pleading - it is sufficient to state that their purpose is to inform the opposing party of the case that will be made against it on the relevant issue and that particulars should be 'clear, concise, non-argumentative, not rhetorical and not constituted by a statement of a conclusion'.[13] Particulars serve the related purpose of defining the issues for decision thereby enabling the relevance and admissibility of evidence to be determined at trial.[14]
[13] Harrigan v Jones [2000] NSWSC 814 [13] (Levine J) and the cases there cited.
[14] Dare v Pulham [1982] HCA 70; (1982) 148 CLR 658, 664 (Murphy, Wilson, Brennan, Deane & Dawson JJ).
The parties' submissions in overview
I will refer to particular contentions advanced by the parties when considering the paragraphs that are attacked. The following paragraphs provide an overview of the parties' submissions.
The defendants' submissions are summarised in a letter from their solicitors to the plaintiff's solicitors dated 26 July 2016 in the following terms:
1)the aggravated damages pleas in the [statement of claim] do not make it clear whether the alleged aggravation of damage is to reputation, or to injury to feelings.
2)nor do the pleas make it clear how in each case, the alleged conduct had such an effect or why the conduct was unjustified, improper or lacking in bona fides;
3)these defects are brought into sharp relief in respect to the pleas of aggravation in relation to alleged delays in filing Court documents and in making and maintaining certain pleas (see, for instance, paragraphs 40.29 of and 40.20 of the [statement of claim]); also (without limitation) the pleading wholly fails to indicate how the publication of the matters in paragraphs 40.5 - 40.19 was improper, unjustifiable or lacking in bona fides;
4)these issues also arise in respect to the pleas of malice in the [reply], which rely upon such allegations (see, for instance, paragraphs 4.3.11 and 4.3.12 of the [reply];
5)these pleas are, at best, inadequately particularised;
6)a number of the pleas purportedly going to aggravated damages appear to be, in reality, matters that go to the question of exemplary damages or reliance upon the defendants' state of mind and hence, as pleaded, are contrary to sections 36 and 37 of the Defamation Act.
7)the plea of "special damages" is entirely inadequate.
…
Paragraphs 3.3 and 4.3.8, 4.3.10 [of the reply] are a fishing expedition to attempt to obtain the identity of a source or sources. Paragraph 3.3 in particular appears to be confected. Their purpose is to circumvent the ruling by his Honour refusing your client leave to interrogate. Further, our client is entitled to oppose the disclosure of its sources.
The issues with the pleadings described above also affect other aggravated damages pleas - especially those which relate to subsequent publications by our clients (e.g. paragraphs 40.12 onwards of the [statement of claim], save for paragraph 40.14A concerning an alleged refusal to apologise).
Of particular concern are paragraphs 40.12, 40.13, 40.15, 40.16, 40.17 which make allegations, in substance, of a contempt of court (by alleging an intention to publicly denigrate the plaintiff's action and thereby improperly deter the plaintiff from pursuing the action).
Such serous [sic] allegations should be - if pressed - properly particularised. The pleading is grossly deficient in this regard.
And, as an overall observation as to the aggravated damages pleas, they appear contrary the overarching principles of case management set out in Order 1 Rules 4A and 46 of the Rules by introducing factual disputes disproportionate to any real question of damages, having regard also to section 35 of the Defamation Act (that damages should bear a rational relationship to the harm sustained).
In addition the defendants contend that the plaintiff's case advanced in pars 4.3.11 and 4.3.12 of the reply, that the defences filed in December 2017 and May 2018 containing the references to the Booragoon lease are matters from which malice - at the time of publication of the Articles - can be inferred, is not tenable.
In summary the plaintiff's submissions were as follows:
(a)The application to strike out pars 40.5 - 40.19 is brought many months out of time and the application to strike out the other impugned paragraphs is brought after the elapse of the 7 working day period following service of the amended pleadings.
(b)The essence of the defendants' complaints about the aggravated and special damages pleas is a lack of particularity but as the parties will shortly be exchanging witness statements the defendants will know the case they are required to meet.[15] The plaintiff challenges the specific submission that the particulars provided under par 40.24 of the matters from which the defendants' intention to cause the plaintiff political damage is to be inferred, do not support that plea and argues that the issue raised by the defendants is a matter for trial.
(c)The defendants cannot be heard to say that they do not know the case they have to meet in relation to pars 4.5 to 4.19 as they have pleaded to them.
(d)The separate items of conduct of the defendants identified in pars 40.20 to 40.30 were capable of constituting conduct that was improper, unjustifiable and lacking in bona fides and increasing the harm to the plaintiff.
(e)The plaintiff contends that, having regard to the imputations relied upon by the second defendant in his counterclaim, the counterclaim necessarily asserts the falsity of the matters relied upon by the plaintiff in pars 40.23 to 40.27 of the statement of claim and 'is analogous to running a disingenuous plea of justification and is thereby capable of aggravating the harm suffered by him'.
(f)As to the pleading in par 3.3 of the unreliability and lack of integrity on the part of the defendants' sources in support of the alleged lack of reasonableness on the part of the defendants, the plaintiff contends that the particulars support the pleaded allegation about the identity of the sources and that if the defendants require better particulars they should consent to the plaintiff administering interrogatories as to the defendants' sources so that he can provide further particulars.
(g)The plaintiff submits that the existence of malice at the time of publication may be inferred from post publication conduct ‑ including the defendants' conduct in the course of the litigation and at trial - and thus the reliance in the December 2017 and May 2018 pleadings on the Booragoon lease is a tenable plea.
[15] Witness statements are to be exchanged for the purposes of disclosure of the evidence in advance of the trial. The statements will not constitute the evidence-in-chief at the trial.
Disposition
Observations on the nature of aggravated damages
Aggravated damages are a form of compensatory damages awarded where conduct of the defendant that is improper, unjustified or lacking in bona fides exacerbates or increases the subjective hurt of the plaintiff.[16] More vividly expressed, the purpose of aggravated damages is to compensate a plaintiff 'for any salt that the relevant defendant has rubbed in the wound over and above the injury caused by the defamatory publication(s) complained of'.[17] As aggravated damages are compensation for the subjective hurt of the plaintiff, the relevant conduct must be known to the plaintiff.
[16] Triggell v Pheeney [1951] HCA 23; (1951) 82 CLR 497, 514.
[17] Henry v News Newspapers Ltd [2011] EWHC 1058 [7] (Eady J).
Section 36 of the Defamation Act 2005 (WA) provides that the state of mind of a defendant is generally not relevant to the awarding of damages:
In awarding damages for defamation, the court is to disregard the malice or any other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or at any other time except to the extent the malice or other state of mind affects the harm sustained by the plaintiff.
Thus it is not sufficient for a plaintiff to establish a particular state of mind on the part of the defendant, instead the plaintiff must establish that state of mind affected the harm sustained by the plaintiff.
Pars 40.5 - 40.19 - aggravated damages
The defendants require leave to proceed with their application in respect of these paragraphs. I am not persuaded that leave should be granted for the following reasons:
(a)The defendants have been advised by experienced defamation lawyers throughout these proceedings. They have pleaded to the paragraphs that are now attacked and I infer that they were not troubled by any lack of understanding of the case that was being advanced against them when they did so.
(b)Having reviewed these paragraphs I am satisfied that the plaintiff's case is pleaded with adequate particularity to inform the defendants of the case they have to meet. Any residual uncertainty on the defendants' part about the plaintiff's case should be resolved when the plaintiff serves his witness statements.
(c)To the extent to which there was uncertainty as to whether the plaintiff alleged that the pleaded conduct aggravated his hurt feelings or damaged his reputation or both, the position was clarified by his counsel who said in the course of argument that the conduct did aggravate the plaintiff's hurt and distress.
Pars 40.20 - 40.30 - aggravated damages
The application in respect of these paragraphs was brought some 17 calendar days after the elapse of seven working days from service of the statement of claim. One of the defendants' solicitors has sworn an affidavit explaining that the delay was due to conferral between the parties and given that explanation and the comparatively short delay I consider leave to bring the application should be granted.[18]
[18] Affidavit of Thomas John Otter sworn on 15 August 2018.
Paragraphs 40.20 - (the first) 40.23: These paragraphs identify the pleading of the justification defences as aggravating conduct. In short the plaintiff alleges that the justification pleas were 'without foundation'. The term 'without foundation' is the subject of a specific attack on the basis that it lacks clarity. In my view the plaintiff's case is pleaded with sufficient clarity and particularity for the defendants to know the case they have to meet. The phrase 'without foundation' does not lack clarity but to the extent to which there might be any uncertainty about the plaintiff's case it was dispelled by the plaintiff's counsel who said it meant 'without any factual basis'.
(The second) par 40.23 - 40.29: These paragraphs allege that the defendants wrote the Articles despite having only 3 pages of the Book in their possession and published the Articles without making enquiries of the publishing house named in the 31 March Article. In my view these paragraphs are deficient because they do not identify how the conduct affected the subjective feelings of the plaintiff. It was apparent from submissions made on the plaintiff's behalf that the plaintiff only became aware that the defendants only had 3 pages of the Book in their possession when discovery was given in the course of the proceedings. I infer that the plaintiff only became aware that no enquiries had been made of the publishing house after proceedings had been commenced. The fact that the plaintiff became aware of the pleaded matters after proceedings were commenced does not prevent the plaintiff from relying on them but it is incumbent on him to plead how they affected his subjective feelings and this is something that he has not done. In my view, however, the nature of the case the plaintiff wishes to advance is clear and sufficiently discloses a tenable claim. Further, I consider that the deficiency in the pleading will not prejudice, embarrass or delay the fair trial of the action given that the plaintiff will shortly be required to serve a witness statement setting out the evidence on which he will rely in support of these paragraphs.
Paragraph 40.24: In this paragraph the plaintiff alleges the defendants wrote the Articles with the intention of causing political damage to him for the benefit of Mr Morton (his rival for pre‑selection). The plea does not state how the defendants' state of mind affected the harm suffered by the plaintiff and in this respect it is deficient, but for the reasons given in the preceding paragraph I do not consider it should be struck out on that ground. The defendants contend that the particulars provided do not support the intention which is pleaded. The particulars are as follows:
Particulars
The Defendants' intention is evidenced by alternatively to be inferred from:
(i)the Defendants' failure to identify, in the articles or in the proceedings, the source of the information the subject of the articles;
(ii)the sensational terms in which the articles were written;
(iii)the articles' reference to Christian voters;
(iv)the juxtaposition of the Plaintiff's living arrangements with Mr Morton's living arrangements within the 1 April Publications;
(v)the Defendants' conduct in publishing subsequent articles of and concerning the Plaintiff and the subject matter of the articles, namely the subsequent articles pleaded in paragraphs 40.5 to 40.19 hereof;
(iv)the Defendants not seeking legal advice as to the content of the articles which were on their face defamatory.
Further particulars may be provided after further discovery is given and in any event prior to trial.
In my view the plaintiff's case that the alleged intention is supported by these particulars is not so clearly untenable that it cannot possibly succeed.
Paragraphs 40.26 - 40.27: the pleas that the defendants failed to make the enquiries referred to in those paragraphs suffer from the same deficiency as (the second) par 40.23 and 40.25 but for the reasons given in relation to those paragraphs I will not strike them out.
Paragraph 40.28: this paragraph pleads the filing and maintaining of the second defendant's counterclaim notwithstanding the intention with which it is alleged the defendants wrote the article (par 40.24) and the facts that: the defendants only had 3 pages of the Book (the second par 40.23) and failed to make enquiries (pars 40.25, 40.26 and 40.27). I consider this plea relies on a false premise. The false premise being that the second defendant was attempting to justify the imputations pleaded by the plaintiff by maintaining his counterclaim that asserted the falsity of imputations that he, the second defendant, acted recklessly and in breach of his professional duty, and that he was politically motivated when he wrote the Articles. A counterclaim that asserts the falsity of the imputations of recklessness and political motivation in the writing of articles does not assert that what was written was true, it goes only to the writer's state of mind at the time of writing. Paragraph 40.28 should be struck out.
Par 40.29: This paragraph pleads the delay in filing court documents. The defendants contend that this plea will greatly expand the potential factual enquiries and will necessitate evidence on all matters that surround the filing and service of the court documents to determine whether the delayed filing of court documents could properly be characterised as improper, unjustified or lacking in bona fides. The defendants' application in respect of this paragraph was based on the proposition that the plea has the potential to prejudice or delay the fair trial of the action. In response the plaintiff relies on the axiom that 'justice delayed is justice denied' and submits that the stress of defamation litigation goes beyond cost. Whilst the truth of these general propositions cannot be denied, they are of limited assistance in determining this aspect of the application. The plaintiff further contends that it is open to the defendants to respond to the plea with a 'confession and avoidance' plea and the plaintiff would then be in a position to determine whether to pursue the allegation at trial.
Case management principles are relevant. Order 1 r 4B states:
4B. Case flow management, use and objects of
(1)Actions, causes and matters in the Court will, to the extent that the resources of the Court permit, be managed and supervised in accordance with a system of positive case flow management with the objects of -
(a)promoting the just determination of litigation; and
(b)disposing efficiently of the business of the Court; and
(c) maximising the efficient use of available judicial and administrative resources; and
(d) facilitating the timely disposal of business; and
(e) ensuring the procedure applicable, and the costs of the procedure to the parties and the State, are proportionate to the value, importance and complexity of the subject matter in dispute; and
(f) that the procedure applicable, and the costs of the procedure to the parties, are proportionate to the financial position of each party.
Defamation actions are not primarily about recovering damages but about the vindication of the plaintiff's reputation.[19] These proceedings are complicated. The action and counterclaim concern eight defamatory imputations that are met by an array of defences. Determining the cases as they presently stand will be a complicated task for the jury. I am satisfied that if par 40.29 of the statement of claim is allowed to stand it will give rise to a large number of issues of peripheral importance. This is because it will be necessary to enquire into the reasons for the delays in filing court documents. The difficulties faced by the jury will be compounded by the need to consider (arcane) questions of litigation procedure to determine whether particular delays were improper, unjustified or otherwise evidence a lack of bona fides. Evidence on issues of this kind are likely to prejudice and delay the fair trial of the action. In applying the provisions of O 20 r 19(1) in this way I am guided by the provisions of O 1 r 4B. I accept that delays in litigation add to the stress experienced by plaintiffs and accept the proposition that if improper, or if the delays reflect a lack of bona fides, they may aggravate a plaintiff's hurt and distress. It would be an exceptional case, however, where delays in filing court documents had a significant effect on compensatory damages. I have been responsible for the management of these proceedings from an early stage and this is not such an exceptional case. This conclusion is reinforced by the fact that the plaintiff has pleaded 31 other aspects of the defendants' conduct that he alleges have aggravated his hurt and distress. The extra time, the extra burden on the jury and the court, and the cost that will be involved in determining the issues to which par 40.29 will give rise are not proportionate to its importance and, having regard to the prejudicial and delaying effect on the fair trial of the action, I will strike it out.
Special damages
Pars 42.5 and 43.3.3
[19] Clark v Bain [2008] EWHC 2636 [55] (Tugendhat J).
Further and better particulars of these paragraphs are clearly required. The defendants should have leave to request particulars of all facts, matters and circumstances relied upon in support of the matters alleged in each of the paragraphs.
Reply - lack of reasonableness and malice
Pars 3.3 and 6.3
The defendants accepted that it was open to a plaintiff to challenge a plea of statutory qualified privilege or extended qualified privilege at common law by pleading that the sources relied upon by a defendant were not reliable even if the defendant had not pleaded reliance on sources. The defendants also argue that the Articles do not refer to sources. They submitted that the plea is an abuse of process because the basis for making the allegation is lacking and the plea is no more than an attempt to obtain the identity of the defendants' sources by providing a basis for discovery of documents going to the defendants' sources or providing a basis upon which to seek leave to interrogate the defendants as to their sources. Paragraph 3.3 reads as follows:
[T]he source of the information conveyed by the matter published, namely the source of the letter and the 3 pages of the book provided to the Defendants and the integrity of the source.
Particulars
The best particulars Dr Jensen can presently give as to the Defendants' source and the source's integrity are that the source was, to the Defendants' knowledge:
(a)a member or employee of the Liberal Party or someone similarly associated with the Liberal Party;
(b)supportive of Dr Jensen's political opponent, the other nominee for pre-selection as the Liberal Party's candidate for the seat of Tangney, Mr Ben Morton; and
(c)opposed to Dr Jensen's nomination for pre-selection as the Liberal Party's candidate for the seat of Tangney,
such that they were not a reliable source of impartial and accurate information, such knowledge to be inferred from the matters identified in the particulars to paragraph 40.24 of the Statement of Claim.
Alternatively the source was entirely anonymous and thus incapable of being assessed as to their integrity
Further particulars may be provided following the issue of subpoenas, the exchange of witness statements, the administering of interrogatories and in any event prior to trial.
The plaintiff's inability to identify the defendants' source is not a bar to pleading that the source is unreliable or lacking in integrity. Conceptually - though the approach is not without difficulty ‑ unreliability and lack of integrity are matters that may be established by a process of inferential reasoning. I am not persuaded by the defendants' argument that the plea in par 3.3 should be seen as an attempt to obtain details of their source and is thus an abuse of process. In my view, however, par 3.3 suffers from the difficulty that the matters from which it is alleged that the defendants' knowledge of the identity of the source is to be inferred - that is the matters pleaded in paragraph 40.25 of the statement of claim - are not capable of supporting that inference. I strike out par 3.3 of the reply though I grant leave to the plaintiff to re-plead. I add that whilst the debate as to what constitutes a material fact as opposed to a particular is often vexed and unproductive, it seems to me that the identity and alleged lack of reliability and integrity of the source and the defendants' knowledge of the source's identity are material facts rather than particulars.
Par 4.3.8
The defendants contend that this paragraph, which is a particular from which it is alleged malice may be inferred, is objectionable for the same reasons as par 3.3. The paragraph reads as follows:
the source of the documents provided to the Defendants and referred to in articles subsequently published by the Defendants or the First Defendant of and concerning Dr Jensen, who Dr Jensen infers was likely the same person(s) who provided the Letter and 3 pages of the book, 'The Sky Warriors' to the Defendants, which may reasonably be inferred from:
(a)the nature of the documents;
(b)the likely source of the documents being someone within or associated with the Liberal Party; and
(c)the fact that the documents were provided to the Defendants and not another journalist or media organisation;
In my view malice cannot be inferred - without more - from 'the source of documents'. I will strike the paragraph out.
Par 4.3.10
This paragraph suffers from the same defect as par 4.3.8 and I will strike it out.
Pars 4.3.11 and 4.3.12
I accept the plaintiff's submission that conduct in December 2017 and May 2018 may reflect on the defendants' mental state at the time of publication of the Articles and may, together with the other matters relied upon by the plaintiff, be matters from which malice may be inferred. I will not strike out these paragraphs.
I will hear the parties as to the form of orders and costs.
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 TOTTLE24 AUGUST 2018
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