Keith Arthur Bradley v Min Li Wu
[2013] ACTSC 67
•19 April 2013
KEITH ARTHUR BRADLEY and ANOR v MIN LI WU
[2013] ACTSC 67 (19 April 2013)
INJURIOUS FALSEHOOD – ingredients – publication not in issue – whether published matter false – whether published maliciously – whether plaintiffs have suffered actual damage consequent on publication
PRACTICE AND PROCEDURE – application for summary judgment – claim for damages for injurious falsehood – publication not in issue – issues of truth and malice not appropriate for summary determination – no evidence of actual damage – application refused
Court Procedures Rules 2006 (ACT) r 1146
Kevern v Marshall [2012] ACTSC 9
Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87
AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395
Palmer Bruyn & Parker Ltd v Parsons (2001) 208 CLR 388
Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669
Orion Pet Products v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191
No. SC 23 of 2011
Judge: Master Harper
Supreme Court of the ACT
Date: 19 April 2013
IN THE SUPREME COURT OF THE )
) No. SC 23 of 2011
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: KEITH ARTHUR BRADLEY
First Plaintiff
AND:JOHN DAVID BRADLEY, KEITH ARTHUR BRADLEY, WILLIAM JOHN GERARD MCCARTHY AND SUSAN ELIZABETH PROCTOR t/as BRADLEY ALLEN LAWYERS
Second Plaintiff
AND: MIN LI WU
Defendant
ORDER
Judge: Master Harper
Date: 19 April 2013
Place: Canberra
THE COURT ORDERS THAT:
the application by the plaintiffs filed on 24 May 2012 be dismissed.
the defendant’s costs of the application be paid by the plaintiffs.
the action be listed on a date no earlier than twenty-one days from the date of this decision before the duty judge for directions.
This is an application by the plaintiffs for summary judgment for damages to be assessed.
The plaintiffs commenced the present action in January 2011. The pleading upon which the present application is based is an amended statement of claim of 27 April 2012, to which a defence was filed on 27 August 2012.
The first plaintiff is a Canberra solicitor. The second plaintiffs are the partners in a Canberra law firm, and include the first plaintiff.
The causes of action pleaded in the amended statement of claim are defamation and injurious falsehood. On the hearing of the application, senior counsel for the plaintiffs limited the application for summary judgment to the injurious falsehood count. The plaintiffs seek damages, and an injunction restraining the defendant from publishing or causing to be published in writing or orally any statement to the fact or suggesting that the plaintiffs or any of them or any person on their behalf has taken or received from the defendant or her daughter, Alice Perry, a sum of money to which the plaintiffs were not entitled.
In summary, the statement of claim pleads that the law firm acted in proceedings in the Supreme Court of New South Wales on behalf of Ms Perry, the defendant’s daughter. The first plaintiff had the carriage of the matter.
The plaintiffs claim that on various occasions during 2010 and 2011 the defendant published words defamatory of the plaintiffs by holding a placard in the street outside the building where the plaintiffs conduct their practice, and showing it to and speaking to passers-by. The placard is said to have read:
9th Floor Canberra House
Keith Bradley Allen Lawyers
swindled money from my daughter’s
trustee fund left by my deceased
husband. Give me back my $107,780.11
The plaintiffs say that these words were defamatory and meant and were understood to mean that the plaintiffs had taken or received money from the defendant or her daughter to which they were not entitled. In consequence, they say that their personal, professional and business reputations have been damaged and that they have suffered distress and embarrassment.
The statement of claim goes on to say that from about December 2010 the plaintiff has publicly displayed signs, placards and banners and distributed pamphlets almost every day in the vicinity of their building, the Magistrates Court building in Knowles Place and Garema Place in Canberra City.
The statement of claim sets out examples of some of the displays. In brief, they are said to have included allegations of overcharging in the face of a much lower original costs estimate, and overservicing. They spoke of seeking justice and fairness, and suggested that the defendant could not obtain justice because the plaintiffs were lawyers.
The plaintiffs then said in the statement of claim that the assertion that they had charged and obtained payment of costs in greater amounts than they were entitled to was false (their costs had been assessed and allowed by a taxing officer of the Court and were recoverable pursuant to a judgment of the Court); the assertion was published maliciously; and the plaintiffs had suffered or were likely to suffer loss as a result of the publication. They said that unless restrained by the Court the defendant would continue to publish the defamatory or similar matter.
In her defence, the defendant generally admits to displaying various signs but denies the defamatory imputations. The defendant denies making false allegations and says that the content of her publications has been true, an honest opinion and fair comment. She goes on to say that the publications are trivial in nature and unlikely to have caused any harm to the plaintiff. She denies malice, and denies that the plaintiffs have suffered any loss or damage.
Summary judgment
Rule 1146 of the Court Procedures Rules 2006 provides that a plaintiff may, at any time after a defendant files a notice of intention to respond or defence, apply to the Court for summary judgment. The Court may give judgment for the plaintiff against the defendant for all or part of the plaintiff’s claim for relief, unless satisfied that the defendant has a good defence on the merits, or sufficient facts are disclosed to entitle the defendant to defend the claim for relief generally.
Although the present application was not filed for fifteen months after the commencement of proceedings, that is not a bar to the making of the orders sought.
I summarised in Kevern v Marshall [2012] ACTSC 9, with acknowledgement to Dr BC Cairns in his Australian Civil Procedure (9th Ed, Thomson Reuters, 2011) some of the general principles to be applied in determining an application for summary judgment. Summary judgment may be obtained where a defendant who lacks a valid defence nonetheless lodges an appearance or an unsustainable pleading thus forcing the plaintiff to prepare for trial. The Court, on the basis of affidavit evidence, may give judgment for the plaintiff if satisfied that there is no triable issue or that there is no need for a trial. Summary judgment is given sparingly, in accordance with the pronouncement of the High Court in Fancourt v Mercantile Credits Ltd (1983) 154 CLR 87 at 99 that summary judgment should be given with great care and only where it is clear that there is no need for a trial. Once it appears to the Court that there is an issue of fact or law that deserves full consideration, the Court will decline to give summary judgment and will direct the parties to proceed to trial.
In applying for summary judgment the plaintiff must comply strictly with the procedural requirements of the Rules and show that there is no defence to the claim or no need for a trial. The defendant may defeat a summary judgment application by showing either that the plaintiff’s application is irregular, or that the claim is of a type that cannot be disposed of summarily. Alternatively, the defendant may show that there is a factual dispute which if resolved in the defendant’s favour raises a defence. The affidavit supporting the application must verify the plaintiff’s cause of action and must depose that the defendant has no defence. The plaintiff bears the overall onus of establishing that it is proper for the Court to give summary judgment.
It is apparent from the wording of r 1146 that the Court has a discretion whether or not to grant summary judgment. The Court is not obliged to do so simply by reason of not being satisfied that there is a good defence on the merits or that the defendant has disclosed sufficient facts to be entitled to defend.
Malicious falsehood
Brereton J in AMI Australia Holdings Pty Ltd v Fairfax Media Publications Pty Ltd [2010] NSWSC 1395 at [29] identified the four elements of the tort of malicious falsehood as follows:
a) a false statement of or pertaining to the plaintiff’s goods or business;
b) publication of that statement by the defendant to a third person;
c) malice on the part of the defendant; and
d) actual damage as a consequence.
In the present case there is no issue about publication. There is an issue on the pleadings as to whether the statements made by the defendant were false. There is an issue as to whether she made those statements and published them maliciously; and there is an issue as to whether the plaintiffs have sustained any actual damage as a consequence of the publication.
The ingredients of the tort were dealt with in some detail by Gummow J in Palmer Bruyn & Parker Ltd v Parsons (2001) 208 CLR 388 at [57] and following. His Honour gave some history of the development of the tort explaining some differences from the tort of defamation, and its closer alliance in some respects to the tort of deceit [59]. His Honour dealt at some length with the concept of damage being consequential upon the publication, and held at [79] that it was not enough to show that the damage caused was reasonably foreseeable. It was necessary to establish that the defendant intended to cause the injury suffered, with the possibility of the plaintiff succeeding by establishing presumed intention, showing that the injury was the natural and probable result of the defendant’s conduct. In Palmer Bruyn, the plaintiff had suffered damage but the damage had not been the natural and probable result of the publication, nor had the defendant intended to cause that particular damage, and the plaintiff failed.
In Australand Holdings Ltd v Transparency & Accountability Council Inc [2008] NSWSC 669, McCallum J adopted the following passage from Clerk & Lindsell on Torts:
Malice means one of three things: either personal spite, or an intention to injure the plaintiff without just cause, or knowledge of the falsity of what is said. There has been a great deal of discussion as to which formulation is correct; this has largely been arid, because the precise formulation has hardly ever mattered. The best view now seems to be that any one of the three states of mind will suffice for liability.
On malice, Brereton J in AMI at [30] made the point:
In injurious falsehood, unlike in defamation, the plaintiff bears the onus of proving the falsity. From time to time, AMI’s submissions slipped into the form that there was no evidence to support or justify an imputation, and therefore that it was false. This is not the way in which the tort of injurious falsehood works; unlike in defamation, where it is for a defendant to justify an imputation, in injurious falsehood the plaintiff must prove the imputation to be false. However, the absence of evidence to justify a falsehood is not without significance: where there is nothing to justify it, it may take very little to establish, on balance, that the imputation is false.
Brereton J went on to say:
[31] Again unlike in defamation, in injurious falsehood malice is also an essential element of the cause of action, to be proved by the plaintiff. While the notion of “malice” in the context of this tort is not easy to define, it is a question of motive, intention or state of mind and it involves the use of an occasion for some indirect purpose or indirect motive such as to cause injury to another person. The English Court of Appeal has said that the criteria for malice in injurious falsehood are the same as at common law for libel and slander. Its content has been variously described as “an attempt to injure another without just cause or excuse” or “some indirect, dishonest or improper motive”, or “a purpose or motive that is foreign to the occasion and actuates the making of the statement”. It involves that the statement was made mala fide or with a lack of good faith. In this context, while a person who acts in good faith is not liable, malice may exist without an actual intention to injure.
[32] As motive must often be inferred from what the defendant did or said or knew, malice is commonly proved by inference. Malice may be inferred from the “grossness and falsity of the assertions and the cavalier way in which they were expressed”. Proof that the defendant knew that a statement was untrue is ordinarily conclusive evidence that its publication was actuated by an improper motive. On the other hand, the mere lack of affirmative belief in truth is insufficient of itself to establish malice. But malice can be inferred not only where the false publication was made with knowledge of its falsity, but also where it was made with reckless indifference as to whether it was true or false.
[references omitted]
Where a defendant published allegations about the plaintiff’s business which were false, but the defendant genuinely believed them to be true, Weinberg J held in Orion Pet Products v Royal Society for the Prevention of Cruelty to Animals (Vic) Inc (2002) 120 FCR 191 that malice was not established, and that the plaintiff could not succeed in injurious falsehood.
Actual damage
There have been actions for injurious falsehood where courts have granted interlocutory injunctions restraining publication without evidence that actual damage has yet been suffered, where the court has been satisfied that a reasonable probability of such damage in the future has been established. Indeed, McCallum J in Australand granted a final injunction restraining publication, in circumstances where the plaintiff withdrew its claim for damages at the commencement of the hearing.
However, in an action for damages for injurious falsehood, proof of actual damage is essential.
The affidavit evidence
Senior counsel for the plaintiffs in opening the application said that he would be relying on a number of affidavits, but did not identify clearly which of the affidavits on the Court file were read and relied upon, with three exceptions: the affidavits of Christopher Allen Stevens sworn 20 January 2011, Timothy John Morton affirmed 20 March 2012 and Heather Joy Ross sworn 20 March 2012. Messrs Stevens and Morton and Ms Ross are solicitors employed by the second plaintiff law firm. Each of these affidavits deposes to the publication and content of the signs, and to conversations each of the solicitors had with the defendant. Mr Morton says that in December 2011 he had a conversation with the defendant outside the Magistrates Court in which she said, among other things: “I just want everyone in Canberra to know and then Bradley Allen will lose business”.
Ms Ross deposed to a similar incident in March 2012, where she had a conversation where the defendant said among other things “I lose money, they lose business”.
The defendant has affirmed an affidavit dated 28 August 2012. She deposed that she believed that she had been greatly overcharged by the firm. She said that in the early stages when she used the words “swindled” on one placard, she had not known that this meant anything criminal, and she altered that placard in January 2011 following an observation I made to her in Court to that effect. She deposed that she did not care whether the plaintiff suffered damage from her protests. That was not her intention. She just wanted to let people know. She did not think that she was powerful enough to influence people not to go to the plaintiffs and she did not want to harm their business in that way. She just wanted “people to know the truth and to get the money back for my daughter”.
Consideration of the issues
Injurious falsehood is a tort in respect of which actual damage is an ingredient. A plaintiff who can establish falsity, publication and malice but cannot establish actual damage will fail.
The evidence read by senior counsel on the hearing of the application does not establish to my satisfaction that the plaintiffs have suffered any actual damage as a consequence of the publications by the defendant. That is enough to dispose of the claim by the plaintiff for summary judgment for damages to be assessed.
Beyond that, I am not satisfied that the plaintiff must inevitably succeed on the issue of falsity, with the exception, perhaps, of the early use by the defendant of the word “swindled”.
The defendant, on her evidence, has a genuine belief that she has been overcharged by the solicitors. I suspect that she has lost all faith in lawyers, and takes little if any comfort from the available powers of the Law Society, taxing officers of the Court or indeed the judiciary – lawyers all.
Senior counsel for the plaintiffs took me to the definition in the Macquarie Dictionary of the word “overcharge”. The first meaning listed is to charge (a person) too high a price. “Overcharge” as a noun is given the primary meaning of a charge in excess of a just price. It seems to me that there is room for a person to hold a genuine belief that a charge was in excess of a just price notwithstanding that the charge has been allowed on assessment by a taxing officer. The concept of such an assessment is one familiar to lawyers but, one suspects, not in the wider community where many might hold an honest and understandable opinion that a particular charge was too high or in excess of a just price.
It is not for me on this application to determine this issue. It is enough to say that the issue of the truth or falsity of the assertions made by the defendant is one that ought to be determined at trial rather than on application for summary judgment.
Further, I am not satisfied that malice is established at such a level as to justify summary judgment. The question of whether the plaintiff has a genuine belief in the truth of her assertions is one to be determined, in my opinion, at trial rather than on this application.
Conclusion
The application for summary judgment will be dismissed with costs.
The further progress of the action will require case management. For that purpose I proposed to direct that it be listed before the then duty judge for consideration as to whether it should be placed in the docket of a judicial officer, and as to any other orders which should be made at that stage.
I certify that the preceding thirty-six (36) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Master Harper.
Associate:
Date: 19 April 2013
Counsel for the first and second plaintiff: Mr B A Meagher SC
Solicitor for the first and second plaintiff: Bradley Allen
Counsel for the defendant: Mr D C Robens
Solicitor for the defendant: Dibbs Barker
Date of hearing: 31 August 2012
Date of judgment: 19 April 2013