Leighton v Garnham [No 2]
[2013] WASC 335
•6 SEPTEMBER 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: LEIGHTON -v- GARNHAM [No 2] [2013] WASC 335
CORAM: LE MIERE J
HEARD: 9 AUGUST 2013
DELIVERED : 6 SEPTEMBER 2013
FILE NO/S: CIV 1590 of 2012
BETWEEN: ROSS WILLIAM LEIGHTON
Plaintiff
AND
CLIVE GARNHAM
First DefendantROBERT JOHN VLETTER
Second DefendantJANE CHRISTINE GENOVESE
Third Defendant
Catchwords:
Practice and procedure - Defamation - Application to strike out parts of the third defendant's defence - Honest opinion - Justification - Qualified privilege - Lange defence
Legislation:
Defamation Act 2005 (WA), s 30, s 31(1)
Result:
Application struck out in part
Category: B
Representation:
Counsel:
Plaintiff: Mr M L Bennett
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Dr J T Schoombee
Solicitors:
Plaintiff: Bennett & Co
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : Environmental Defender's Office (WA) Inc
Case(s) referred to in judgment(s):
Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245
Christian Labour Association of Canada v Retail Wholesale Union [2003] BCSC 2000
Conservation Council of SA Inc v Chapman [2003] SASC 398; (2003) 87 SASR 62
Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95
Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1
LE MIERE J: The plaintiff, Mr Leighton describes himself as the owner and developer of the proposed aged care facility on land in Wattle Grove. The Wattle Grove Action Group objects to the development and maintained a website on which material critical of the proposed development has appeared. Mr Leighton claims that an advertisement about the development published by the defendants in a community newspaper and on the group's website and three articles about the development published by the defendants on the website defame him.
The third defendant has filed an amended defence dated 12 July 2013. The plaintiff has applied to strike out parts of the third defendant's defence. The present application does not concern the first and second defendants. For the purposes of these reasons I will refer to the third defendant as the defendant and the third defendant's amended defence as the defence. I will refer to the further re‑amended statement of claim dated 25 September 2012 as the statement of claim.
The statement of claim
The statement of claim pleads five articles defamatory of the plaintiff. The first, second and fifth articles entitled 'Aged Care issue to Deceive Residents, 'High End Aged Care in Wattle Grove? The Devil is in the Detail' and 'The Vomit Principle in at Play and Rationality has Left the Shire of Kalamunda' respectively, each appeared as a file or page on the group's website. The plaintiff pleads that each of those articles in its natural and ordinary meaning meant that the plaintiff deceived residents in the Shire of Kalamunda about the development, and the first and fifth articles also gave rise to the imputation that the plaintiff is a manipulative business person. The third article is an advertisement published in the weekly community newspaper the Kalamunda Reporter entitled 'Addressing the Myths around Aged Care in Wattle Grove'. The fourth article consists of the advertisement together with some introductory words which appeared on the group's website under the heading 'Response to Ross Leighton's Letter to Planning Minister John Day'. The plaintiff pleads that the third and fourth articles each give rise to the meaning that the plaintiff deceived Kalamunda Shire residents about the development.
The defendant does not admit that she was a member of the Wattle Grove Action Group but admits that she set up the website. The defendant admits that she caused each article to be made accessible to users of the website but does not admit that she published the articles appearing on the website for reasons which it is not necessary to elaborate upon for the purposes of this application. The defendant admits that she caused the advertisement to be published in the Kalamunda Reporter.
The defendant denies that the articles give rise to the imputations pleaded by the plaintiff or any imputation defamatory of the plaintiff. The defendant pleads a Polly Peck imputation in relation to each of the articles and pleads that those imputations are true. The defendant pleads the defences of honest opinion under s 31(1) of the Defamation Act 2005 (WA) (the Act), qualified privilege under s 30 of the Act and the Lange defence of qualified privilege.
The plaintiff applies to strike out the defence. The plaintiff attacks each of the affirmative defences pleaded by the defendant.
Defence of honest opinion
In [8] of her defence the defendant pleads that if, which she denies, the first article means that the plaintiff deceived residents in the Shire of Kalamunda about the development, then the defendant has a defence of honest opinion under s 31(1) of the Act. In [12] of her defence the defendant pleads the defence of honest opinion if the first article means that the plaintiff was a manipulative business person. In [21], [32], [40], [49] and [56] of her defence the defendant pleads the defence of honest opinion in answer to the imputations pleaded by the plaintiff in relation to the second, third, fourth and fifth articles. For the purposes of this application it is sufficient to consider the plaintiff's challenge to the plea of honest opinion in relation to the first imputation pleaded to arise from the first article, that is that the plaintiff deceived residents in the Shire of Kalamunda about the development.
The opinion is adequately pleaded
Section 31(1) of the Act provides that it is a defence to the publication of defamatory matter if the defendant proves three things. The first thing is that 'the matter' was an expression of opinion of the defendant. 'Matter' is defined in s 4 to include various forms of publication such as newspaper articles, television programmes or letters. The authors of Australian Defamation Law & Practice write that this suggests that, as at common law, the defence is essentially directed to the words used by the defendant rather than the meanings pleaded by the plaintiff. The authors doubt whether this distinction would normally have any practical effect, given the fact that the plaintiff's meanings are ultimately required to arise from the words used by the defendant. The authors refer to the observation of Gummow, Hayne and Heydon JJ in Channel 7 Adelaide Pty Ltd v Manock (2007) 232 CLR 245 [84] that the only significance of words normally lies in their meaning and, in the context of the common law defence of fair comment, there was no difference between the actual words employed and their meaning.
The plaintiff says that the defendant has not properly particularised the opinion. In relation to the first article, the defendant pleads:
8.1the matter was an expression of opinion of the Third Defendant rather than a statement of fact;
Particulars of opinion
The entirety of the First Article is an expression of opinion, excluding:
(1)the first paragraph of the First Article;
(2)the first sentence of the second paragraph of the First Article;
(3)the first dot point and the three sentences relating to that dot point;
(4)the first sentence of the third dot point of the First Article; and
(5)the third last paragraph of the First Article starting 'the Principal Solicitor' and up to and including the sentence ending 'as long as one person occupying the house is over 55'.
The plaintiff says that the defendant's particulars of opinion are inadequate because the defendant has not pleaded the opinion. The plaintiff says, by reference to dicta of Master Newnes (as his Honour then was) in Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209, that the defendant should in all but those cases where the comment or opinion is obvious plead the substance of the opinion relied upon so that the plaintiff knows the case he has to meet.
It is not necessary in this case for the defendant to further plead the opinion relied upon. In [8] of her defence, where she pleads the defence of honest opinion, the defendant does not plead that the article carries a meaning or opinion different from the meaning pleaded by the plaintiff. To the contrary, the defendant pleads that if, which she denies, the article meant that the plaintiff had acted as pleaded in [7.1] of the statement of claim, that is that the plaintiff deceived residents in the Shire of Kalamunda about the development, then the defendant pleads 'in relation to that imputation' the defence of honest opinion. The defendant gives particulars of which parts of the matter complained of are comment. The defendant does not plead that the opinion is different from the imputation pleaded by the plaintiff. In effect, the opinion which the defendant says is an honest opinion protected by s 31(1) of the Act is that the plaintiff deceived residents in the Shire of Kalamunda about the development.
The matter may be approached in another way. The issue of honest opinion set up by the pleadings is as follows. The plaintiff pleads that the article has the meaning that the plaintiff deceived residents in the Shire of Kalamunda about the development. The defendant denies that the article bears that meaning. If the plaintiff fails to establish that the article bears that meaning or a meaning not substantially different, the trial judge will not have to go further and that part of the plaintiff's claim would be dismissed. If the plaintiff's allegation succeeds and the defendant's denial that the article has that meaning is rejected, the defendant's further and alternative plea of honest opinion would have to be considered. There would be no disparity or difference between the imputation or defamatory meaning on the one hand and the 'matter' on the other. The matter sued on – the first article – would have been found to have had the meaning alleged, the only question would be whether the article constituted honest opinion. That analysis is explained by Gummow, Hayne and Heydon JJ in Manock at [83] in relation to the common law defence of fair comment but the defence of honest opinion under s 31(1) of the Act is not relevantly different.
Proper material on which opinion based not properly pleaded
To establish the defence of honest opinion the defendant must also prove that the opinion is based on proper material: the Act s 31(1)(c). An opinion is based on proper material if it is based, amongst other things, on material that is substantially true or was published on an occasion of qualified privilege: Defamation Act s 31(5). The plaintiff objects that the defendant has not given proper particulars of the proper material on which the opinion is based. The defendant's plea that the opinion was based on proper material is as follows:
8.3the opinion was based on proper material.
Particulars
The opinions in the First Article were based on material that is substantially true, within the meaning of s 31(5) of the Defamation Act, being the facts set out in the First Article. Further and in the alternative, the opinions are based on material that was published on an occasion of qualified privilege, within the meaning of s 31(5)(b) of the Act. See paragraph 11 below.
The defendant says that the proper material on which the opinion is based is material that is substantially true or alternatively material that was published on the occasion of qualified privilege. The material that is said to be substantially true are the statements of fact set out in the article. In the course of argument counsel for the defendant explained that the facts set out in the first article are those set out in the passages of the article referred to in [1] to [5] of the particulars of opinion.
The defence does not adequately or properly identify the material that is said to be substantially true. The second sentence of the first paragraph of the first article is:
His [ex‑counsellor John Giardina] letter titled 'An important request' outlines the fact that there is a serious shortage of aged accommodation within the Kalamunda Shire and urges residents to strongly support the rezoning and development proposal of 32 Gavour and Welshpool Roads.
It is embarrassing to plead that that is one of the facts on which the opinion is based. Is the alleged fact merely that Giardina's letter outlined that there is a serious shortage of aged accommodation within the Kalamunda Shire, or is the alleged fact that there is a serious shortage of aged accommodation within the Kalamunda Shire?
The first dot point and the three sentences relating to that dot point are:
•'The Wattle Grove site is large and very flat, it is close to facilities and it is on bus route, it is an excellent site'.
The site is at least 6 ‑ 7 kilometres away from shops and support services (eg health and medical centres). Residents would be placed in a remote location, isolated from their community.
There is a bus route however in order to access it residents need to cross 4 lane ways of fast moving traffic (speed limit 80 km/hr).
The defence appears to assert that both the first dot point and the three sentences relating to that dot point are true. However, the dot point is inconsistent with the statements which follow it. Furthermore the sentence 'residents would be placed in a remote location, isolated from their community' is at too high a level of generality for the plaintiff to know the case he has to meet.
The first sentence of the third dot point is:
This proposal has been rejected twice before, in 2004 and 2007.
That particular is embarrassing. It cannot be correct that the proposal had been rejected in 2004 and 2007. Paragraph 1.3 of the defence refers to three different proposals for the rezoning of the site in October 2004, September 2007 and March 2008. Paragraph 1.4 of the defence refers to 'all the proposals for rezoning referred to above'.
The third last paragraph reads:
The Principal Solicitor at the Environmental Defender's Office recently informed me about the following regarding the rezoning and development of 32 Gavour and Welshpool Roads:
'The fairly detailed documentation submitted with the rezoning application gives the impression that Council is being asked to approve a specific proposal. In fact the legal effect of approving the rezoning application would be that the land ceases to be zoned rural, and acquires the 'Special Uses ‑ Aged Care' zoning. Under the new zoning, the only constraint affecting residential development would be the requirement for development approval, and that dwellings must be occupied by at least one person over 55.'
This pleading is embarrassing. Is the alleged fact that the Principal Solicitor informed the defendant of the matters set out, or is it also alleged that those matters are true? If it is alleged to be a fact that 'the fairly detailed documentation submitted with the rezoning application gives the impression that Council is being asked to approve a specific proposal' then the documentation and the rezoning application should be identified. Furthermore, the facts establishing that the documentation gives the impression that council is being asked to approve a 'specific' proposal should be identified.
The particulars that the opinion is based on proper material being material that was published on an occasion of qualified privilege are inadequate. The particulars identify the material by the reference 'see paragraph 11 below'. Paragraph 11 of the defence commences with the plea that
if the first article conveyed the imputation of the Plaintiff pleaded in paragraph 7.1 of the Statement of Claim (which is denied), the [defendant] further pleads the defence of qualified privilege in terms of s 30 of the Act, in that …
The defendant then sets out four subparagraphs, three of which have particulars subjoined. Subparagraph 11.1 is a conditional, or more properly, a limited or partial plea of qualified privilege. It pleads that if the plaintiff proves publication to persons accessing the website, then the persons to whom the first article was published 'would be' residents of the Shire who accessed the website to read the first article and read it in the circumstances pleaded in [5.2] and [5.3] of the defence, which persons are described as the First Article Website recipients. It is then pleaded that each of the First Article Website recipients had an interest or apparent interest in receiving information on the subject of the First Article. Subparagraph 11.2 pleads that at the time of the publication the defendant believed on reasonable grounds that the First Article Website recipients each had an apparent interest in having information on the relevant subject of the First Article. Paragraph 11.3 pleads that the First Article was published to the First Article Website recipients in the course of giving them information on the relevant subject of the First Article. Paragraph 11.4 pleads that the conduct of the defendant in publishing the matter was reasonable in the circumstances which are then set out.
The particulars fail to identify the material that was published on an occasion of qualified privilege on which the opinion is based. It cannot be the whole of the article. If the whole of the article was published on an occasion of qualified privilege then that is a defence to the claim in relation to the first article and it makes no sense to plead a further defence that the article is an honest opinion.
There is a further problem with the pleading in [8.3] that the opinion is based on material that was published on an occasion of qualified privilege. As I have said, the plea of qualified privilege is a partial defence in that it applies only to the publication to residents to the Shire and only residents who accessed the website in the circumstances pleaded in [5.2] and [5.3] of the defence. However, the plea of honest opinion is pleaded as a defence to the publication to users of the website and is not confined, as is the defence of qualified privilege, to publication to only users of the website who are residents of the Shire who accessed the first article in the circumstances set out in [5.2] and [5.3].
Paragraph 8 of the defence fails to adequately or properly plead the proper material on which the opinion is based. Furthermore, insofar as the defendant pleads that the opinions are based on material that was published on an occasion of qualified privilege, the plea cannot stand because the material is alleged to be published on an occasion of qualified privilege only insofar as it was published to residents of the Shire who read the article in the circumstances pleaded in [5.2] and [5.3], but the defence of honest opinion is pleaded as a defence to the publication of the first article to all users of the website. Paragraph 8 of the defence should be struck out. Paragraphs 12, 21, 32, 40, 49 and 56 should be struck out for substantially the same reasons.
Polly Peck defence of justification
In [9] and [10] of the defence the defendant pleads that
[i]f the first article conveyed the defamatory imputation pleaded in paragraph 7.1 of the Statement of Claim (which is denied), then the First Article also carried in its natural and ordinary meaning the imputation that the Plaintiff misinformed residents in the Shire about the proposed rezoning
and that the
imputation was true in substance and in fact.
That pleading is defective in form. Counsel for the defendant informed the court that the defendant intended to justify a meaning different from that pleaded by the plaintiff, not a meaning in addition to that pleaded by the plaintiff. For the purposes of this application I will assume that the pleading conforms to the intended plea.
The plaintiff objects that the imputation pleaded by the defendant is not defamatory. The defendant says in answer that it cannot be said that the imputation is not defamatory when the imputation is evaluated in the context and with reference to the contents of the article in question. The defendant says that 'there is an intersection and overlap as to the various connotations which can be legitimately attributed to 'deceived' and 'misinformed'.' Further, counsel submits that these connotations applicable to 'deceived' and misinformed' and their interrelationship should be determined at trial and should not be determined in a strike out with reference to some technical meaning attributed to the words or more precisely, some of the connotations 'misinformed' may carry. In the defendant's written submissions it is submitted that the Polly Peck imputation does not cover an intention to deceive but it extends to misleading conduct without such intention and with the plaintiff knowing what the true position was but not publicly disclosing or acknowledging this.
The ordinary meaning of 'to misinform a person' is to give wrong or misleading information to a person. Whether it is defamatory to say of a plaintiff that he misinformed residents in the Shire about the proposed rezoning depends upon the relevance, seriousness and consequences of the wrong information and whether the plaintiff was culpable or blameworthy for giving the wrong information to the residents. If the words complained of suggest that the plaintiff is culpable or blameworthy for the residents being misled then the words may be defamatory. Right thinking people might think the worse of someone who was culpably responsible or blameworthy for having misinformed residents about a zoning proposal in material respects. On the other hand, right thinking people would not think the worse of someone who innocently gave wrong information to residents about a zoning proposal in circumstances where he was not culpable or blameworthy. Words which mean that the plaintiff misinformed residents about the proposed rezoning in the sense of giving them wrong information is not, without more, defamatory. The defendant's imputation does not expressly plead more. It is not obvious or apparent from the context and contents of the article that the defendant's imputation is something more than that the plaintiff misinformed residents in the sense of doing so innocently and without being culpable or blameworthy. The defendants' imputation is not defamatory.
Counsel for the defendant submitted that the defendants pleaded imputation is intended to extend to misleading conduct without intending to deceive but knowing what the true position was and not publicly disclosing or acknowledging this. If the defendant wishes to plead some imputation to that effect then she must expressly plead it. The purpose of pleading an imputation is so that the plaintiff knows what case he has to meet. The defendant must plead the precise act or condition asserted of or attributed to the plaintiff.
Paragraphs 9 and 10 of the defence must be struck out. The imputation that the plaintiff misinformed residents in the state about the proposed rezoning is not, without more, defamatory. If the defendant intends to assert something more then it must be pleaded so that the plaintiff knows the case he has to meet. For the same reasons [22], [23], [33], [34], [41], [42], [50] and [51] should be struck out.
Particulars of justification inadequate
The plaintiff submits that the defendant's particulars of justification of the Polly Peck imputation do not support the plea of justification. It is strictly not necessary to consider this objection because the defendants' imputation is not defamatory. It is not appropriate to consider whether or not the particulars support the imputation unless and until the defendant pleads a defamatory imputation and does so with sufficient precision, that is an imputation that identifies the precise act or condition asserted of or attributed to the plaintiff. However, I make the following observations. The form in which the particulars are pleaded makes it difficult to understand the defendant's case. Subparagraphs of [1] of the defence, which pleads to the paragraph of the statement of claim which pleads that the plaintiff is and was at all material times the owner and developer of the proposed aged care facility at the site, are incorporated by reference as the particulars of justification. Those paragraphs themselves contain particulars. It would be much easier to understand the defendant's case if the defendant set out separately, as particulars of justification, the facts on which he relies to justify the pleaded imputation.
Paragraphs 1.4, 1.5 and 1.6 of the defence do not expressly state any information given by the plaintiff to the residents of the Shire and hence it is difficult to discern how they prove that the defendant misinformed the residents of the Shire, whether knowingly, recklessly, carelessly or otherwise. Paragraph 1.7 states that the plaintiff 'knowingly allowed false or misleading information concerning the proposed rezoning to be made available for public inspection at the Shire of Kalamunda administration offices'. That is not the Polly Peck imputation pleaded by the defendant, nor in the course of argument did counsel for the defendant seek to cast the imputation in those terms.
Qualified privilege
I have already referred to the plea of qualified privilege in [11] of the defence in the course of considering the defendant's plea of honest opinion in [8] of the defence. The plaintiff submits that whilst it is accepted that there is no presumption of law that there has been substantial publication in respect of an internet publication, the defendant cannot plead that 'the recipients of the First Article to whom such publication occurred would be residents of the Shire who accessed the Website … [plaintiff's emphasis]'. The plaintiff submits that the articles were published on a publicly accessible website and not simply to residents of the Shire and that qualified privilege does not exist in cases where a publication, which is directed to persons who share a common interest, can be obtained by others without much difficulty.
The defendant submits that it is for the plaintiff to prove relevant publication and the extent of that publication, and it is only when that has occurred at trial that the question of any qualified privilege will arise – in relation to the publication so proved (defendant's emphasis). The plaintiff objects that the assertion or assumption by the defendant that persons accessing the website are residents of the Shire is inconsistent with the law as stated in Lindholt v Hyer (2008) 251 ALR 514 [151] ‑ [152], [159] ‑ [161] and Christian Labour Association of Canada v Retail Wholesale Union [2003] BCSC 2000 [22] ‑ [25], [30] ‑ [31].
Counsel for the defendant says that the defendant's plea is a legitimate conditional plea that if the plaintiff establishes publication then that would be to Shire residents. In my view, properly understood the defendant's case in [5] and [11] of the defence is as follows. The defendant denies that she published the article to users of the website as alleged by the plaintiff. In the alternative, she says that she published the article only to the First Article Website recipients and publication to those persons was on an occasion of qualified privilege. Understood in that way the defendant's plea of qualified privilege is permissible.
If the court finds that the article was published to persons other than the First Article Website recipients then the defendant's plea of qualified privilege will fail, at least in relation to publication to persons other than the First Article Website recipients. The defendant has not pleaded that publication to persons other than First Article Website recipients is protected in law because it was made incidentally to a privileged communication. The defendant has not pleaded that the incidental publication to persons other than First Article Website recipients was reasonable or necessary in order to bring the article to the notice of First Article Website recipients. On the pleadings as they stand those issues will not arise. If the court finds, from direct evidence or inference from other facts, that the article was published to persons other than First Article Website recipients then it will not be open to the defendant to argue that publication to those persons is protected by qualified privilege.
I will not strike out [11]. For the same reasons I will not strike out [24], [43] or [52] which plead qualified privilege in relation to the second, fourth and fifth articles.
Paragraph 35 of the defence which pleads qualified privilege in relation to the third article, that is publication in the Kalamunda Reporter, must be considered separately.
The plaintiff submitted that only some recipients of mass communications such as newspapers will have the requisite interest in receiving defamatory material: Roberts v Bass [2002] HCA 57; (2002) 212 CLR 1, 215. The plaintiff submits that the Kalamunda Reporter is a mass media publication and not all persons in receipt of the Kalamunda Reporter would share the requisite interest in receiving information on the subject matter of the third article. The plaintiff says that much turns on the extent of distribution – was it reasonable for persons, including those outside the Shire of Kalamunda, to receive information on the designated subject?
In her defence the defendant does not admit [14] of the statement of claim which pleads the widespread distribution of the Kalamunda Reporter. In those circumstances the issue of qualified privilege in relation to the third article must be left to trial.
Lange defence
In [25] to [27] the defendant pleads the Lange qualified privilege defence in relation to the publication of the second article or the second article read in the context of the Full Second Article. The Full Second Article is the second article together with a letter to the Minister which was published in the Echo newspaper on 19 April 2011. In [53] and [60] to [62] the defendant pleads the Lange defence in relation to the imputations pleaded by the plaintiff to arise from the fifth article or the Full Fifth Article. The Full Fifth Article is the fifth article together with two letters which were accessible through hyperlinks provided in the fifth article. The defendant says that the second and fifth articles are communications regarding government or political matters in that they relate to a public debate on the work and activities of Minister John Day and the Shire of Kalamunda and the plaintiff's participation therein.
The plaintiff challenges the defendant's Lange defence on two bases. First, the plaintiff says that the second and fifth articles are not communications on government or political matters. The plaintiff says that the second article focuses on correcting the plaintiff's allegedly deceptive statements made in his letter to the Minister and the fifth article also focuses on the conduct of the plaintiff. Secondly, the plaintiff says it is an element of the defence that the defendant act reasonably which involves seeking a response from the plaintiff prior to publication and publication of any response made. That is not pleaded.
In Lange v Australian Broadcasting Corporation [1997] HCA 25; (1997) 189 CLR 520 the High Court declared that a common law defence of qualified privilege existed in relation to publications concerning government and political matters that affected the Australian people. This defence was subject to a requirement of reasonableness.
The second article is entitled 'High End Aged Care in Wattle Grove? The Devil is in the Detail'. The opening words of the article are:
Recently developer Ross Leighton placed an open letter to the Minister for Planning John Day in the Echo community paper (click to enlarge). The letter fails to tell the whole story and deliberately omits a number of crucial facts. Here is our response to his letter –
Those words are followed by eleven dot points. The first two dot points commence with the words 'Mr Leighton states' and refer to things said by Mr Leighton. Each dot point then goes on to say that Mr Leighton fails to mention certain matters relevant to the things Mr Leighton has stated. The remainder of the article follows a similar vein. It refers critically to things said and done by Mr Leighton and to the development proposed by Mr Leighton. There are four references to the Minister. The first is in the opening words which I have set out. The second is in the seventh dot point where it is said:
The WAPC and the Hon Minister for Planning have a responsibility to consider the full range of considerations which contribute to determining whether or not a proposed use is suitable and appropriate for a particular location.
The text then goes on to say that there is no need or demand for the change of use and it is not a suitable change.
The fifth article is entitled 'The Vomit Principle is at Play and Rationality has Left the Shire of Kalamunda'. The opening words of the article are:
John Day recently wrote a response to Iris Jones's letter to the editor in which she called for the Honourable Minister John Day to resign (click here to view a copy of her letter).
Often when people become highly emotive, they lose perspective, are unable to see things clearly and fail to see other viable options/solutions. I fear this may be the case for Iris Jones, a number of residents and Shire councillors within the Shire of Kalamunda who have been misinformed.
Residents in the Shire of Kalamunda have been led to believe that the proposal by Ross Leighton is about supplying high care for the elderly in an appropriate location. Well, this isn't exactly the case … in fact, it couldn't be further from the truth.
Those words are followed by further paragraphs which refer to Ms Jones, the Minister and the proposal by the plaintiff to develop the site.
It is arguable that the discussion in each of these articles is published in the context of discussion about a proposed amendment to the relevant town planning scheme and that that is a government and political matter. However, the mere fact that a statement is published in the context of discussion about government and political matters will not necessarily give it that character: Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440, 458 (Steytler J). In Nationwide News Pty Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 at [24] Owen J, with whom Pidgeon and Ipp JJ agreed, said that the Lange defence requires a nexus between the occasion and the impugned material. In publishing material a person cannot go beyond what is legitimately required for the fulfilment of the interests sought to be protected. In Nationwide News the appellant argued that the newspaper article was a discussion on the work or activities of the ACCC or Professor Fels in his capacity as its chairman and comments by Professor Fels which implied that a bank's management condoned the provision of incorrect information about financial packages offered by its competitors. The respondent submitted that the substance of the article was not related to Professor Fels but to allegations of misconduct by the respondent in relation to the bank. Owen J said:
It seems to me that a proper reading of the article as a whole compels the conclusion that it was not germane to the section about Professor Fels to make the separate and distinct allegation that the respondent had been involved in a 'sting' against the bank. The latter was not sufficiently connected to the former to make it relevant to the discussions about the appropriateness of the actions of Professor Fels. Accordingly, the impugned statements about the conduct of the respondent were not relevant to the communication about government or political matters. In my view arguments to the contrary are not tenable [27].
Conservation Council of SA Inc v Chapman [2003] SASC 398; (2003) 87 SASR 62 arose out of the Hindmarsh Island Bridge dispute. The respondent Chapmans were developers of the bridge. They brought actions in defamation against the Conservation Council and its officers. In respect of each of three publications the defendants raised the Lange defence. A majority of the Full Court of the Supreme Court of South Australia, Doyle CJ and Besanko J, held that these two articles were not on government and political matters. Doyle CJ drew attention to two aspects of the principles enumerated by the High Court in Lange:
First, a communication is protected because it is communication of a kind '… necessary for the effective operation of that system of representative and responsible government provided for by Constitution': at 561. Second, the subject matter that is protected is '… information, opinions and arguments concerning government and political matters that affect the people of Australia': [7].
Doyle CJ in considering one of the publications accepted that it
was published in the course of a continuing vigorous and widespread public debate in South Australia (and more widely) about the construction of a road bridge to Hindmarsh Island [8].
and that
the debate about the construction of the bridge to Hindmarsh Island had aspects to it that brought that debate within the area of discussion that attracts constitutional protection [9].
After observing that the issue of the construction of the bridge had received considerable attention in the Commonwealth Parliament and the claimed impact on the environment and on aboriginal interests were matters of significance to the Commonwealth Government, Doyle J concluded that the publication occurred in the course of a debate that raised a number of issues capable of attracting the constitutional protection to a contribution to the debate. However, it is necessary to go further. The particular publication must be shown to be one 'concerning government and political matters that affect the people of Australia'. Doyle CJ considered that whilst the publication has 'directly contributed to the ongoing public comment and debate' about construction of the bridge, that was not enough. It is not enough to attract the constitutional protection that the publication relates to the event or matter, debate over which attracts the constitutional protection. Doyle CJ held that:
the article, having regard to its contents, does not deal with 'government and political matters'. Nor, placed in the wider context, does it make a contribution to the dissemination of information about those matters. The publication is made in the course of a public controversy that raises those matters, but that in itself is not enough. The publication is properly characterised as a publication about use by the Chapmans, and developers generally, of legal proceedings to silence or subdue opponents of proposed developments. As such, it does not attract the constitutional protection [18].
I now return my consideration to the second article. It is arguable that the debate about whether the zoning amendment should be made is a government or political matter. The fact that the article refers to the proposed zoning amendment is not of itself enough to attract the Lange protection. The mere fact that the article refers to the plaintiff's proposed development and application to amend the zoning does not bring it within the constitutional protection. It is not sufficient that the article may be seen as part of a debate about the zoning amendment. It is not enough to attract the Lange protection that the article relates to the zoning amendment or proposed development. It is arguable that the article is published in the course of a public controversy that raises those matters but that in itself is not enough.
The question is whether the second article is a publication concerning government and political matters. The issue is one of judgment or characterisation. The plaintiff says in effect that the article is properly characterised as a publication about the conduct of the plaintiff and in particular deceptive statements made by him in his letter to the Minister. However, I am not required to decide that matter at this interlocutory stage. It is sufficient that the defendant's case is arguable. The defence should only be struck out if the argument that the publication is a communication on a government or political matter is untenable. I am not able to reach a sufficient state of satisfaction that the defendants' argument that the publication is a communication on a government or political matter is untenable. The defence will not be struck out on that ground.
Similarly, it is arguable that the fifth article is a communication on a government or political matter or at least that such an argument is not untenable. The Lange defence in relation to the fifth article will not be struck out on that ground.
Reasonableness
The requirement of reasonableness would be satisfied 'as a general rule' when the defendant 'had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the material to be untrue'. The defendant must also have 'sought a response from the person defamed and published the response made (if any)' unless this was 'not practicable' or it was 'unnecessary' to provide this opportunity to the plaintiff: Lange v Australian Broadcasting Commission (1997) 189 CLR 520, 574.
The plaintiff says that the defendant cannot on the one hand assert that the second and fifth articles were only published to a small group of readers, the residents of Wattle Grove, with an apparent interest in receiving the articles and also plead the Lange defence which generally applies to publications made to mass audiences by the general media and not to smaller audiences which have an immediate and direct interest in receiving the information. The plaintiff submits that acting reasonably involves seeking a response from the plaintiff prior to publication and publication of any response made. Nothing to that effect is pleaded.
In the Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1 Gillard AJA, with whom Winneke ACJ and Warren AJA agreed, said:
In my view, the matters identified by the High Court [in Lange v Australian Broadcasting Commission] are not principles of law, are not essential elements in the proof of the defence, but nevertheless are matters of substance and relevant to the determination of reasonableness. The failure by the publisher to prove any one of them would, in my opinion, in most cases prove fatal. It is a relevant matter.
But the issue is whether the 'making of a publication was reasonable … in all the circumstances of the case'. This will depend upon the particular circumstances. The matters identified by the High Court are relevant to the exercise. In some cases the failure to prove one of the matters would be fatal to the defence. However, the issue is whether the making of the publication was reasonable in the circumstances. Hence, a failure to prove one of the identified matters may not be fatal [92] – [93].
The issues raised by the plaintiff are not appropriate to be resolved on a strike out application. They should be left to trial.
Conclusion
Paragraphs 8, 9, 10, 12, 21, 22, 23, 32, 33, 34, 40, 41, 42, 49, 50, 51 and 56 of the defence should be struck out. The plaintiff's application should otherwise be dismissed.
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