Jensen v Nationwide News Pty Ltd [No 4]
[2018] WASC 285
•11 SEPTEMBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JENSEN -v- NATIONWIDE NEWS PTY LTD [No 4] [2018] WASC 285
CORAM: TOTTLE J
HEARD: 29 AUGUST 2018
DELIVERED : 3 SEPTEMBER 2018
PUBLISHED : 11 SEPTEMBER 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 - Amendments - Strike out - Defamation - Amendments to pleadings - Objection to amendments - Application to disallow amendments to reply pleaded in answer to statutory and extended (Lange) qualified privilege - Amendment to pleading only struck out where cause of action or defence untenable that it cannot succeed - Amendments allowed - Turns on own facts
Legislation:
Defamation Act 2005 (WA)
Result:
Amendments allowed
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr A J Tharby & Ms D Le Miere |
| First Defendant | : | Mr T Blackburn SC & Mr J MacLaurin |
| Second Defendant | : | Mr T Blackburn SC & Mr J MacLaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| First Defendant | : | MacPherson & Kelley Lawyers |
| Second Defendant | : | MacPherson & Kelley Lawyers |
Case(s) referred to in decision(s):
Coxon v Wilson [2016] WASCA 48
Jensen v Nationwide News Pty Ltd [No 3] 2018 WASC 252
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
TOTTLE J:
Introduction
These reasons concern the plaintiff's application to amend his reply and defence to counterclaim in accordance with the terms of a minute of proposed second amended reply and defence to counterclaim filed on 28 August 2018. The defendants oppose the application. The minute was filed pursuant to leave granted to the plaintiff to re-plead certain paragraphs of the amended reply and defence to counterclaim after they had been struck out in accordance with reasons published on 24 August 2018.[1] The issues in the action and the relevant pleadings are summarised in the 24 August 2018 reasons.
[1] Jensen v Nationwide News Pty Ltd [No 3] 2018 WASC 252.
The defendants' primary objection is to pars 3.3, 3.4, 3.5, 6.3, 6.4 and 6.5 of the proposed reply. Paragraph 3 answers the defendants statutory and 'Lange' (political and governmental matters) qualified privilege defences in relation to the 31 March Publication and par 6 answers those defences in relation to the 1 April 2016 Publication.
By pars 4.3.8 and 7.4 the matters pleaded in pars 3.3, 3.4, 3.5, 6.3, 6.4 and 6.5 are relied upon to support the plaintiff's pleas of malice in pars 4 and 6. The malice pleas are relied upon in further answer to the qualified privilege defences.
Separate objection is taken to par 4.3.2 of the minute.
The impugned paragraphs
Paragraph 3 of the minute reads as follows:[2]
[2] The text set out below does not show the amendments made to the earlier version of the reply as the amendments themselves are of no present relevance.
3.As to paragraph 45(f) of the Defence, Dr Jensen denies that the Defendants' conduct in publishing the 31 March Publications was reasonable in the circumstances, given:
3.1the 31 March Publications did not contain the substance of Dr Jensen's side of the story; and
3.2no reasonable attempt was made by the Defendants to obtain and publish a response from Dr Jensen; and
Particulars
3.2.1On 30 March 2016, the Second Defendant telephoned Mr Sean Conway (Dr Jensen's senior adviser) and had a brief conversation concerning:
(a)Dr Jensen's book 'The Skywarriors'; and
(b)the fictitious war between Australia, China and Indonesia the subject of the book,
and Mr Conway stated to Mr Burrell that he (Mr Conway) had no knowledge of the details of the book.
3.2.2On 30 March 2016, after the Second Defendant's conversation with Mr Conway, Mr Conway informed Dr Jensen that the Second Defendant had called and provided Dr Jensen with the Second Defendant's telephone number.
3.2.3On 30 March 2016 at approximately 3 pm, Dr Jensen telephoned the Second Defendant and they discussed:
(a)that the 31 March Publications would concern Dr Jensen's book 'The Skywarriors';
(b)the subject of the book namely the fictitious war between Australia, China, and Indonesia; and
(c)that the 31 March Publications would be as described by the second defendant a light-hearted read.
3.2.4That the Second Defendant intended to refer to the Letter or the sexualised aspects of Dr Jensen's book that were to form the subject of the 31 March Publications was not put to Mr Conway nor Dr Jensen for comment or response.
3.3the defendants' source of the Letter and 3 pages of the book, The Sky Warriors, which documents formed the subject matter of the 31 March Publications, was a member of the Liberal Party;
Particulars
The precise identity of the defendants' source is presently unknown to Dr Jensen but may be inferred from:
3.3.1the fact that the only persons who could have known about or had access to the Letter and the book were persons staffing Dr Jensen's Parliamentary office who were members the Liberal Party;
3.3.2the timing of the defendants' source providing the Letter and the 3 pages of the book to the defendants, a national media organisation and a political journalist:
(a)in about March 2016, almost 9 years after the date of the Letter; and
(b)immediately prior to the Liberal Party pre-selection ballot for the selection of the Liberal Party candidate for the seat of Tangney on 3 April 2016;
3.3.3the fact that Liberal Party pre-selection application forms, which are treated as confidential by the applicants, the State Executive of the Liberal Party and the pre‑selectors (each of whom were Liberal Party members), were also provided to the defendants at about the time of the Liberal Party pre-selection ballot for the division of Tangney, namely:
(a)Mr Morton's pre-selection application form sent by Mr Morton to the Liberal Party on about 15 March 2016, which was provided to the defendants by 31 March 2016; and
(b)Dr Jensen's pre-selection application form sent by Dr Jensen to the Liberal Party on about 21 March 2016, which was provided to the defendants by 31 March 2016
(which application forms appear to have formed the basis for parts of the 1 April Publications);
3.3.4the fact that a letter from Dr Trudy Hoad (now Jensen) to pre-selectors in about March 2016 was provided to the defendants between 4 and 8 April 2016 (inclusive of those dates) (and formed the basis for the defendants' article pleaded in paragraph 40.15 of the Statement of Claim);
3.3.5the fact that at least one of Dr Jensen's emails to members of the Liberal Party on 26 July 2017, were provided to the defendants in about August 2017 (and formed the basis for the defendants' article pleaded in paragraph 40.19 of the Statement of Claim).
Further particulars may be provided following further discovery and inspection being given, the issue of subpoenas, the exchange of witness statements, the administering of interrogatories and in any event prior to trial.
3.4the defendants' source of the Letter and 3 pages of the book was unreliable and lacking in integrity for the purposes of publishing articles of and concerning Dr Jensen, given:
3.4.1the source's membership of the Liberal Party;
3.4.2the Letter was on Parliamentary letterhead dated 8 June 2007 and apparently signed by Dr Jensen, a member of the Australian Federal Parliament;
3.4.3the Letter was provided to the defendants with only 3 pages of the book, The Sky Warriors, which pages comprised 1 page of the prologue and the 2 pages across which the sex scene was written;
3.4.4the timing of the defendants' source providing the Letter to the defendants, a national media organisation and a political journalist on about 30 March 2016, which was:
(a)almost 9 years after the date of the Letter; and
(b)immediately prior to the Liberal Party pre-selection ballot for the selection of the Liberal Party candidate for the seat of Tangney on 3 April 2016;
3.4.5the defendants' source providing to the defendants the Letter, the 3 pages of the book and the documents referred to in paragraphs 3.3.3 to 3.3.5 hereof,
from which it may be inferred that the defendants' source's intention in providing the Letter and the 3 pages of the book to the defendants was to cause political damage to Dr Jensen for the benefit of Mr Morton;
3.5the defendants knew the identity of the source of the Letter and 3 pages of the book.
Particulars
The defendants' knowledge may be inferred from:
3.5.1the fact the Letter, the 3 pages of the book and the documents referred to in paragraphs 3.3.3 to 3.3.5 hereof were provided to the defendants, and not to other media organisations or journalists;
3.5.2the fact that in the articles referring to those documents the defendants do not assert that the documents were anonymously provided to them;
3.5.3the common intention of the defendants' source (as pleaded in paragraph 3.4 hereof) and the defendants (as pleaded in paragraph 40.24 of the Statement of Claim);
3.5.4the fact the defendants have not asserted and do not assert in the course of the within proceedings that they do not know the identity of the source of the Letter and other documents, which they could easily assert if they had no such knowledge; and
3.5.5the defendants' foreshadowed opposition to disclosure of their source(s) by their solicitors' letter dated 24 July 2018.
Further particulars may be provided following further discovery and inspection being given, the issue of subpoenas, the exchange of witness statements, the administering of interrogatories and in any event prior to trial.
As noted above, the plaintiff pleads that the 31 March Publication was published maliciously and in par 4.3 sets out matters from which he alleges malice may be inferred. Paragraph 4.3.2 reads as follows:
Mr Burrell's email to Sydney-based authors and editors of the First Defendant, Mr James Madden and Ms Petra Rees sent at approximately 10.33 am on 30 March 2016 in which the only words Mr Burrell wrote were 'Attached is the submission letter Jensen sent on his parliamentary letterhead to publishing agent Curtis Brown' when the letter had in fact never been sent;
In par 4.3.8 the plaintiff pleads that he relies on the matters pleaded in pars 3.3 to 3.5 without repeating the contents of those paragraphs.
The plaintiff adopts the template used in par 3 for his response to the qualified privilege defences relied upon for the 1 April Publication. The documents referred to in par 6.3 are the pre-selection application forms lodged by the plaintiff and Mr Morton, his rival for pre-selection, and whilst there are other differences, pars 6.3, 6.4 and 6.5, relevantly, repeat the substance of the matters pleaded in pars 3.3, 3.4 and 3.5.
The plaintiff pleads that the 1 April Publication was published maliciously and in par 7.4 relies on the matters pleaded in pars 4.3, 6.3, 6.4 and 6.5 as matters from which malice on the part of the defendant may be inferred.
The defendants' submissions
The defendants' submissions raise 10 objections.
First, the defendants raise an overarching objection to the effect that the pleas of unreasonableness do not elucidate why it was unreasonable to publish. They contend that the fact that the source of the relevant documents was a member of the Liberal Party and inferentially that the intention of the source was to cause political damage do not make the publication unreasonable especially given the governmental and political element to the qualified privilege defences.
The defendants contend that there is nothing inherently wrong in wanting to cause political damage to a political opponent. They rely on the observations of members of the High Court in Roberts v Bass[3] to the effect that publishing material about a candidate for political office with the motive of causing political damage is central to the electoral and democratic process,[4] and is not an improper motive that would establish malice and destroy a defence of qualified privilege.[5] The defendants contend that if it was unreasonable to publish matters based on material provided by someone who may have a political motive in damaging a political opponent, there could be no effective reporting of political affairs otherwise of public interest - a result, the defendants contend, that would be contrary to the rationale for qualified privilege.
[3] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1.
[4] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 [107] (Gaudron, McHugh and Gummow JJ).
[5] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1 [68] (Gaudron, McHugh and Gummow JJ) citing Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520, 574.
Secondly, the defendants contend that the plea in par 3.4 that the source was unreliable and lacking in integrity is not supported by several of the particulars provided. The defendants contend that this is 'not a traditional "source" case' - one involving information or quotes from a source - rather than documents as in this case. The defendants contend that the particulars to par 3.4 undermine the plea and support the case that the source was reliable. In support of this contention the defendants rely on:
(a)par 3.3.1 in which the plaintiff alleges that the only persons who could have known about or had access to the documents were persons staffing the plaintiff's Parliamentary Office and were members of the Liberal Party;
(b)par 3.4.1 that repeats that the source was a member of the Liberal Party; and,
(c)par 3.4.2 that alleges that 'the Letter was on parliamentary Letterhead and apparently signed by Dr Jensen'.
The defendants contend that these matters suggest, contrary to the pleading, that the documents are authentic and reliable.
Thirdly, the defendants contend that par 3.4 does not plead or particularise a basis for asserting that the defendants knew of the alleged unreliability or lack of integrity of any source.
Fourthly, the defendants contend that par 3.4.5 is objectionable on the ground that reasonableness is determined at the time of publication but pars 3.3.3 - 3.3.5 incorporate references to publications which post-date the 31 March 2016 Publication.
Fifthly, the defendants contend that the particulars provided in support of the allegation in par 3.5 that the defendants knew the identity of source of the relevant documents do not adequately support the allegation which is predicated upon there being a single source.
Sixthly, the defendants contend that par 3.5.3 is objectionable on the ground that it refers to a common intention (by reference to par 40.24 of the statement of claim) when the allegation suggests collusion. The defendants contend that par 40.24 of the statement of claim does not provide a basis for the allegation in par 3.5.3.
Seventhly, the defendants contend that par 4.3.2 cannot support the plea of malice because the plaintiff does not plead that the second defendant - Mr Burrell - knew at the time of publication that the letter had not been sent as the plaintiff now alleges.
Eighthly, par 4.3.8 is objectionable because it relies on pars 3.3 ‑ 3.5.
Ninthly, each of the objections raised in relation to pars 3.3 - 3.5 are repeated mutatis mutandis in respect of pars 6.3, 6.4, 6.5 and 7.4.
Tenthly, the defendants repeat the submission made in support of the earlier application to strike out the amended reply and defence to counterclaim to the effect that the pleas to which objection is taken are an attempt to plead matters that would provide a basis to discover the identity of the defendants' sources by interlocutory measures and are thus not for a proper purpose.
The plaintiff's submissions
In answer to the defendants' submissions that the plea in pars 3.3 - 3.5 do not elucidate why the publication was unreasonable, the plaintiff says the plea makes it clear that the publication was unreasonable because of the matters alleged in those paragraphs.
The plaintiff submits that the five factors pleaded in par 3 in support of the denial that the 31 March 2016 Publication was reasonable must be considered in combination and not in isolation as the defendants have done in their submissions, and their underlying merit can only be determined at trial after the evidence has been given.
The plaintiff contends that each of the paragraphs impugned by the defendants' submissions survives the attack made on it. In summary, the plaintiff's submissions are as follows:
(a)Paragraphs 3.3, 6.3: the plaintiff contends that the defendants' submissions do not recognise the significance to be attached to s 30(3)(g) of the Defamation Act 2005 (WA) which permits the court to take into account the source of information published. The plaintiff argues that the fact that the source was a member of the Liberal Party as opposed to the Labour Party is arguably relevant.
(b)Paragraphs 3.4, 6.4: the plaintiff contends that the fact that a journalist's source was unreliable or lacking in integrity is a relevant circumstance. The plaintiff draws attention to the absence of any distinction in s 30(3)(g) of the Defamation Act between a 'traditional source' and a source who provides documents. The plaintiff argues that a source's integrity is relevant to the authenticity, accuracy and bona fides of information or documents provided to the publisher. The source's integrity is a matter that the court is permitted to consider when determining the reasonableness of the publication. The plaintiff adds that the integrity of the source is not irrelevant even if the documents themselves are authentic.
(c)Paragraph 3.4.5: the plaintiff says that he does not plead that the publication was unreasonable as a result of the provision of the later documents as the defendants contend. The purpose of the plea is to identify a matter from which the intention of the source may be inferred. The plaintiff contends that the provision of documents after the publication is a matter which is capable of establishing the intention of the source at the time of publication.
(d)Paragraph 3.5, 6.5: the plaintiff argues that by par 3.5 he pleads the material fact that the defendants had one source for all of the relevant documents. By the particulars, the plaintiff asserts that various Liberal Party documents relating to him were provided to the same journalist and not to any other journalist, prior to and immediately following the pre-selection campaign and again in about August 2017. The plaintiff argues that contrary to the defendants' submission those facts strongly support the inference that the documents were provided by the same person.
(e)Paragraph 3.5.3: The plaintiff contends that the attack on par 3.5.3 is misconceived as the particulars to par 40.24 were held to be capable of supporting the inference sought to be drawn as to the defendants' intention.
(f)Paragraph 4.3.2: the plaintiff correctly points out that this paragraph is not the subject of a proposed amendment and thus the defendants require, but have not sought and have not been granted, leave to strike it out. The plaintiff contends that, in any event, the pleaded email is one of various pleaded matters from which malice may be inferred. He argues that in isolation, the email tends to show that Mr Burrell had concluded that Dr Jensen had sent the letter on parliamentary letterhead prior to making any enquiry of the plaintiff. He contends that taken with the other sub-paragraphs (including pars 3.3 - 3.5), it supports and adds to the plea of malice.
Disposition
Relevantly, a pleading will only be struck out if it raises a cause of action or a defence that is so clearly untenable that it cannot succeed.[6] By parity of approach a proposed amendment to a pleading will only be disallowed if it pleads a matter that is so clearly untenable that it cannot succeed.
[6] See Coxon v Wilson [2016] WASCA 48 [13] (Buss, Murphy JJA and Corboy J) and the cases cited therein.
I will deal first with the defendants' overarching objection. The observations of the members of the High Court in Roberts v Bass[7] relied upon by the defendants were focussed on the question of whether conduct constituted malice rather than on the question of whether the conduct of the defendant in publishing the matter was reasonable in the circumstances for the purposes of the statutory and 'Lange' qualified privilege defences. Whilst there may be an overlap between the matters considered for these two purposes, the relevant questions are distinct. A publisher's conduct may not be reasonable in the circumstances but unreasonable conduct is not to be equated with malice. That said, it may be accepted that, of itself, the publication of material supplied to a publisher by a person who is motivated by a desire to cause political damage to another does not establish that the conduct of the publisher was not reasonable. The plaintiff's case, however, is not that the matters pleaded in pars 3.3 - 3.5 - that is,
•that the source was a member of the Liberal Party,
•known to the defendants,
•who was unreliable and lacking in integrity, and
•whose intention was to cause political damage to the plaintiff;
establish that the defendants' conduct was unreasonable. Rather, the plaintiff's case is that those matters, in combination with the alleged failure to include in the publications the plaintiff's side of the story and the alleged failure to make a reasonable attempt to obtain and publish a response from the plaintiff, establish that the defendants' conduct was unreasonable. I am not persuaded by the defendants' overarching objection that the proposed amended pleas in pars 3.3 - 3.5 and pars 6.3 - 6.5 are so clearly untenable that they should not be allowed to stand.
[7] Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1.
Paragraph 3.4: The defendants' submissions highlight potential weaknesses with the plaintiff's case as to the reliability of the defendants' source and highlight the absence of an express plea that the defendants knew the source was unreliable and lacking in integrity. I am not persuaded, however, that the matters pleaded are so clearly untenable that they should be struck out. In reaching this conclusion I take into account that the defendant's attack on paragraph 3.4 is directed to the alleged unreliability of the source and not to the lack of integrity of the source. As the plaintiff's submissions emphasised, the sources of information in a published matter and, specifically, the integrity of those sources are matters identified in s 30(3)(g) of the Defamation Act as matters to be taken into account in determining whether a publisher's conduct is reasonable in the circumstances.
Paragraph 3.4.5: I accept the plaintiff's submission that the later provision of documents is not relied upon to establish that the defendants' conduct was not reasonable at the time of publication. Rather, it is relied upon to establish the source's intention at the time of the provision of the documents and accordingly the proposed amendment will be allowed.
Paragraph 3.5 (generally) and par 3.5.3: I do not accept the defendants' objections to these paragraphs. The plaintiff's case is pleaded clearly. Whether the matters relied upon by the plaintiff as particulars are sufficient to establish the defendants' knowledge is a matter for trial rather than determination on a strike out application.
Paragraph 4.3.2: As this paragraph was not the subject of any amendment, the time for applying to strike it out expired some time ago. I decline to strike it out.
Paragraph 4.3.8: As the amendments to pars 3.3 - 3.5 have been allowed, so will this paragraph.
Conformably with the rulings on pars 3.3 - 3.5, pars 6.3 - 6.5 and par 7.4 will be allowed to stand.
Finally, I am not persuaded that the proposed amendments should be considered as an attempt to plead matters that would provide a basis for interlocutory applications to ascertain the identity of the defendants' source and that they should be disallowed on the grounds that they constitute an abuse of process. In the context of these proceedings, the plaintiff has made no secret of his interest in ascertaining the identity of the defendants' source. If however the plaintiff's proposed amendments raise a tenable case that the defendants' conduct in publishing was unreasonable, as I consider they do, I do not consider that the proposed amendments should not be allowed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
DG
ASSOCIATE TO THE HONOURABLE JUSTICES PRITCHARD AND TOTTLE11 SEPTEMBER 2018
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