Maher v Nationwide News Pty Ltd
[2013] WASC 254
•5 JULY 2013
MAHER -v- NATIONWIDE NEWS PTY LTD [2013] WASC 254
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 254 | |
| Case No: | CIV:2918/2012 | 24 APRIL 2013 | |
| Coram: | KENNETH MARTIN J | 5/07/13 | |
| 19 | Judgment Part: | 1 of 1 | |
| Result: | Five imputations struck out Leave to replead | ||
| B | |||
| PDF Version |
| Parties: | LILLIAN MAHER MICHAEL GALLAGHER NATIONWIDE NEWS PTY LTD PAUL CLEARY |
Catchwords: | Defamation Pleadings Strike out application False innuendos Interlocutory threshold Natural and ordinary meanings |
Legislation: | Aboriginal Heritage Act 1972 (WA), s 5 Rules of the Supreme Court 1971(WA), O 20 r 19(1)(a), (c) |
Case References: | Barnes v Addy (1874) LR 9 Ch App 244 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186 Gascoine v McGinty (1995) 14 WAR 542 Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 Gumina v Williams (No 1) (1990) 3 WAR 342 Lewis v Daily Telegraph Ltd [1964] AC 235 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260 Rambal v Cahill [2012] WASC 353 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 Taylor v Jecks (1993) 10 WAR 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
MICHAEL GALLAGHER
Second Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
PAUL CLEARY
Second Defendant
Catchwords:
Defamation - Pleadings - Strike out application - False innuendos - Interlocutory threshold - Natural and ordinary meanings
Legislation:
Aboriginal Heritage Act 1972 (WA), s 5
Rules of the Supreme Court 1971(WA), O 20 r 19(1)(a), (c)
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Result:
Five imputations struck out
Leave to replead
Category: B
Representation:
Counsel:
First Plaintiff : Mr M L Bennett
Second Plaintiff : Mr M L Bennett
First Defendant : Mr T K Tobin QC & Ms C Galati
Second Defendant : Mr T K Tobin QC & Ms C Galati
Solicitors:
First Plaintiff : Bennett & Co
Second Plaintiff : Bennett & Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Barnes v Addy (1874) LR 9 Ch App 244
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186
Gascoine v McGinty (1995) 14 WAR 542
Gillick v Brook Advisory Centres [2001] EWCA Civ 1263
Gumina v Williams (No 1) (1990) 3 WAR 342
Lewis v Daily Telegraph Ltd [1964] AC 235
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260
Rambal v Cahill [2012] WASC 353
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
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1 KENNETH MARTIN J: On 19 November 2012, The Australian newspaper published an article critical of the first plaintiff, Ms Lillian Maher. The article was published on page 6 of the newspaper, as well as online. It appeared under a headline reading: 'Native title boss didn't reveal ties with FMG'. A copy of the article is attached as a schedule to these reasons (Schedule A). The acronym 'FMG' is a reference to the Fortescue Metals Group Ltd, a well-known iron ore miner in Western Australia. I retain the article's use of that acronym in these reasons for convenience.
2 In the headline the first plaintiff is referred to as a 'Native title boss', then within the text as, a 'senior executive' and also the 'NNTT's former West Australian state manager'. (The National Native Title Tribunal is referred to as the NNTT throughout the article.)
3 The article said the first plaintiff had 'worked for the NNTT from 1994 until August this year [2012], when she left as a result of a "restructure"'.
4 Particular emphasis is placed by the plaintiffs on the inverted commas used in the article around the word 'restructure'. In oral argument, counsel for the plaintiffs suggested such use of the inverted commas implied the first plaintiff had been dismissed from her employment. That, however, is not one of the allegedly defamatory imputations that is contended for in the first plaintiff's action. Accordingly, the inverted commas around 'restructure' provide part of the article's context, for the presently pleaded imputations of the plaintiffs - all of which are now attacked.
Alleged conflict of interest
5 The defendants accept, as is obvious, that the article criticises the first plaintiff on the basis of conflict of interest. This arises within the article at a number of levels, beginning, at the outset, with the headline's allegation that the first plaintiff did not reveal her 'ties with FMG'.
6 The conflict of interest criticism progresses to the first plaintiff's relationship with her partner, the second plaintiff, Michael Gallagher. Mr Gallagher is said to have worked for FMG 'for several years until late 2010, before being appointed as a consultant to native title group Wirlu-murra Yindjibarndi Aboriginal Corporation, heavily funded by FMG'. Like the article, I will refer to that Corporation as 'WYAC'.
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7 Following the criticism for allegedly not revealing (presumably to her employer, the NNTT) the fact of her personal relationship with the second plaintiff, the article advances to relate that the first plaintiff's daughter 'also works for FMG'. Nothing further is said as to the nature of her daughter's employment within FMG. An implication, however, is that there ought to have been some declaration by the first plaintiff to her employer concerning the employment of both her partner and her daughter by FMG.
8 The article advances to say that when asked by The Australian newspaper about whether she had declared a relationship with the second plaintiff, the first plaintiff's response had been: 'the NNTT president, Graeme Neate, knew about it'.
9 A further conflict of interest criticism emerges in the article from the first plaintiff's connections to the entity, MGA Consulting. The article relates the first and second plaintiffs are co-directors of that entity (which suggests MGA Consulting is a corporation). It says MGA Consulting 'is wholly owned by Ms Maher's company, Sillytown Pty Ltd'. It goes on to say MGA Consulting 'produced a report in September last year [2011] for FMG and the WYAC that was used to obtain approval for iron ore mining within FMG's Solomon Hub lease' and further, that 'Ms Maher's name was not on the report'.
10 From the article it seems an MGA Consulting report had addressed, at least in part, an issue over whether 'an area known as Kangeenarina Creek [was] to "be protected with a buffer where no works would take place"'. The article says that an anthropologist, Mr Brad Goode, appears to have written another report which, at least in part, addressed the significance of a place called Kangeenarina Creek to Aboriginal people, and that 'Mr Goode resisted pressure from FMG to remove references to the importance of the creek'.
11 In the article, it is said of MGA Consulting's report, in presumed contrast to the anthropological stance expressed in the report of Mr Goode, that: '[t]he MGA report, however, implied that there was no need to protect the creek because it "does not constitute an ethnographic site in terms of Section 5 of the Aboriginal Heritage Act"'.
The defendants' amended strike out application
12 The defendants issued a chamber summons initially seeking to strike out some of the pleaded imputations, but subsequently amended the chamber summons on 19 April 2013. The amended summons attacks all
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- imputations as (by reference to the terms of the article) infringing Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(a) and/or (c), by reason of failure to disclose a reasonably arguable cause of action against the defendants; or alternatively, as being prejudicial or embarrassing.
13 There was, initially, a question over whether time should be extended to allow the defendants to pursue the additional pleading challenges in the amended summons. Leave in that regard, however, was ultimately not opposed. I grant leave accordingly. The matter was therefore argued before me on the basis of the challenges now raised in the amended summons.
14 There are essentially six broad categories of imputation across the pleading which are challenged. Four concern the first plaintiff, Ms Maher. Two concern the second plaintiff, Mr Gallagher.
15 All pleaded imputations are challenged as manifestly groundless or untenable, in accord with the rigorous interlocutory threshold the defendants accept they must surmount to make good their strike out challenges.
Legal principles
16 Before setting out the six broad categories of impugned imputation, I should render some brief observations concerning the legal principles applicable to a challenge such as this. These are well established and were not controversial between the parties.
17 As touched on above, an interlocutory challenge against the plaintiffs' imputations needs to be evaluated on the basis that, unless shown to be unarguable, the imputations contended for are allowed to proceed to a final evaluation at trial, either before a judge or a jury. The defendants, therefore, need to surmount a high threshold to succeed on their strike out application. The standard is well established and case authorities concerning the interlocutory threshold are legion: see for instance Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 675 - 676 (Hunt J); Gumina v Williams (No 1) (1990) 3 WAR 342, 346 (Commissioner Pullin QC) (as he then was); and Taylor v Jecks (1993) 10 WAR 309, 313 (Anderson J). But the fact an imputation survives an interlocutory challenge does not necessarily mean that it will be allowed by a trial judge to go before a jury: Monte v Mirror Newspapers Ltd (668) (Hunt J).
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18 The test, concerning whether or not a popular (false) innuendo is capable of arising from words complained of, is objective - assessed by reference to the hypothesised ordinary reasonable reader. There have been criticisms of this touchstone; see for instance Kirby J's observations in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52; (2005) 221 ALR 186, 193 - 194 [23] - [24]. Nevertheless, the law presently is applied on the basis of the ordinary reasonable reader exhibiting various attributed qualities, some of which might be thought of as being in tension with others.
19 The nature of a hypothesised reader was helpfully summarised by Eady J in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 [7]. His Honour said:
Hypothetical reasonable readers should not be treated as either naïve or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts.
20 See also Lewis v Daily Telegraph Ltd [1964] AC 235, 260 (Lord Reid); and Favell v Queensland Newspapers Pty Ltd(189 - 190) (Gleeson CJ, McHugh, Gummow and Heydon JJ).
21 The hypothesised ordinary reasonable reader is obviously in a different position depending on whether an impugned publication is by written words, audio or some audiovisual medium. The present publication concerns a newspaper article (also published online), where the medium of publication is essentially permanent, rather than transient. Thus a newspaper reader's eye is capable of stopping or dwelling at a particular place, or even re-reading parts of an article. The reader's approach is hypothesised to be of a casual nature, sometimes likened to a reader's leisurely breakfasting, whilst browsing over the morning newspaper.
22 This case requires an assessment of the natural and ordinary meaning of words alone, in the context of the newspaper article as a whole, unlike a legal (true) innuendo, where there is some extra knowledge held in a class of reader to be assimilated and assessed along with the words of the publication.
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23 In the present case an evaluation of the natural and ordinary meaning of the words in the newspaper publication complained of removes any potential for further personal knowledge in a reader in issues such as:
(a) particular processes or workings of the NNTT;
(b) how the NNTT evaluates evidence before it, including choosing between conflicting expert anthropological reports;
(c) whether or not the NNTT has some sort of internal disclosure code of conduct for its senior employees, such as that applicable to Ministers of the Crown, and requiring disclosure to someone of their assets or their relationships; and
(d) precise duties of a state manager of the NNTT.
24 Here, the hypothetical ordinary reasonable reader is wholly reliant upon the words of the newspaper about these issues and cannot bring to the table any personal knowledge in evaluating meanings in the article.
25 For a judge, it is no easy task to assess the terms of a publication in the hypothetical, casual way required, whilst suppressing any degree of constructional legalism. The process of argument inherent in evaluating a strike out application against imputations usually requires both counsel and the judge to read and reread the words of a publication many times as each side's arguments unfold. I am mindful of and have striven to adhere to the principle that the process involves the objective standard of a reasonable, ordinary, but casual reader, capable of drawing inferences where they arise, but not avid for scandal.
26 My final observation as to principle is that, at minimum, it should be assumed the hypothesised ordinary reader of a newspaper publication is literate and would exhibit an ordinary standard of comprehension of the English language. This reader should also be assumed to have read the article from start to finish, rather than to have become, uninterested and moved on to find (hopefully) more stimulating content elsewhere in the newspaper. Failure to complete a reading of the article to the end would not, in my view, be consistent with the hypothesis of an ordinary and reasonable reader.
The proper formulation of imputations
27 Meanings contended for by a plaintiff must be exact, be it a popular (false) innuendo arising exclusively from the words of the publication, or a legal (true) innuendo, arising out of the words as augmented by further
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- knowledge held by the particular reader. The imputation must capture the true essence of the 'sting' of the publication concerning alleged wounds to the plaintiff's character complained of. An imputation must be a precise distillation of the essential grievance: see in this respect the observations by Stephen J in Sungravure Pty Ltd v Middle East Airlines Airliban SAL[1975] HCA 6; (1975) 134 CLR 1, 17 - 18; Hunt J in Monte v Mirror Newspapers Ltd; and Commissioner Pullin QC in Gumina v Williams (No 1).
28 Failure to satisfy the precision criterion will render an imputation vulnerable to being struck down, on the basis that it is legally embarrassing. As imputations complained of might ultimately be assessed by a jury, precision is an indispensable requirement.
29 Formulated imputations also lay down the platform upon which pleaded defences (particularly a defence of justification raising the truth or substantial truth of the imputation) may seek to be advanced by a defendant. Absent requisite precision in formulating a plaintiff's imputations, there are likely to be generated diverting flowthrough consequences in subsequent pleadings which may impinge on the efficient running of a trial.
30 Imprecision in the formulation of a plaintiff's imputations can arise through:
(a) an imputation not being reduced to its absolute essence out of the words complained of;
(b) an imputation being cluttered by unnecessary words or concepts; and
(c) a mixing or merging of more than one essential grievance, so as to create overall confusion or uncertainty as to the intended meaning.
31 In respect of (c) above, I repeat the observation of Anderson J in Taylor v Jecks (319):
[d]istinct imputations should be distinctly pleaded so that the defendant can deal with them separately, otherwise there is potential for much confusion.
- See also, Anderson J's following evaluation of the imputations in that case, including as to whether the presence of unnecessary words manifested a deficiency sufficient to undermine a pleaded imputation (Taylor v Jecks (319)).
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32 These evaluations do raise matters for judgment or questions of degree, about which reasonable minds may differ. In Favell v Queensland Newspapers Pty Ltd,the plurality observed that a scenario of differing reasonable minds was a pointer towards a conclusion that an interlocutory attack should fail: see (189 - 191).
Imputations
33 I set out below the six categories of imputation in the pleading - now challenged by the defendants. These categories of imputations in the statement of claim concern either Ms Maher or Mr Gallagher. I will deal with each category separately, but somewhat out of order. I will, however, set them out below in the order in which they were pleaded for convenience, before I commence an evaluation of their merits.
Category 1 - pars 6.1, 10.1 and 15.1 of the statement of claim
34 The imputation is that Ms Maher 'disclosed confidential information about hearings before the NNTT for the benefit of the Fortescue Metal Group'.
Category 2 - pars 6.2, 10.2 and 15.2 of the statement of claim
35 The imputation is that Ms Maher 'abused the power entrusted in her as the state manager of the NNTT.
Category 3 - pars 6.3, 10.3 and 15.3 of the statement of claim
36 This imputation contends Ms Maher 'used her position at the NNTT to unduly influence decisions made by the NNTT for the benefit of Fortescue Metal Group'.
Category 4 - pars 6.4, 10.4 and 15.4 of the statement of claim
37 This imputation contends Ms Maher 'knowingly assisted in the destruction of indigenous sites'.
Category 5 - pars 7.1, 11.2 and 16.1 of the statement of claim
38 This imputation is that Mr Gallagher 'knowingly assisted in the production of a false report for Fortescue Metals Group so it could gain approval for its Solomon Hub project'.
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Category 6 - pars 7.2, 11.2 and 16.2 of the statement of claim
39 The imputation is that Mr Gallagher 'conspired with the first plaintiff to improperly obtain confidential information about hearings for the benefit of FMG'.
Evaluation of the categories contended against Ms Maher
Category 3
40 The imputation is that Ms Maher misused her position to unduly influence decisions made by the NNTT (for the benefit of FMG). The latter part of the article, however, explicitly states that decisions concerning land access were made by independent members of the NNTT, and not by the state manager. A late section in the article reads:
The NNTT spokeswoman said Ms Maher's work did not involve making decisions about land access. 'As WA state manager, Ms Maher had no role in the NNTT's approval of mineral licences, which is a function carried out by independent members of the NNTT,' the spokeswoman said.
The NNTT settles disputes between companies and native title groups and has approved a number of mining leases for FMG.
41 It could have been defamatory to say of Ms Maher that she had used her position to influence decisions of the NNTT. That would be so without a need for any further statement as to influencing decisions of the NNTT for the benefit of a mining company.
42 But the paragraphs of the article I have quoted are clear as to Ms Maher's lack of involvement in NNTT decisions leading to the approval of mining licences. In my view, that is a complete antidote to any 'bane' inferentially contended for as arising out of earlier words in the article.
43 In argument before me, the plaintiffs suggested an arguable imputation of misuse of position arose out of Ms Maher's involvement with the MGA Consulting report of September 2011. However, Ms Maher's links to MGA as a corporation that provided a report does not show any arguable misuse of her NNTT position. The MGA Consulting report was commissioned privately and then submitted to the NNTT. The MGA report lacks any connection in this article with Ms Maher's employed position as a state manager of the NNTT.
44 The undisclosed connection of Ms Maher to MGA Consulting may be the subject of a distinct criticism. But it does not, in my view, show a
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- (mis)use of her employed position at the NNTT, let alone the use of her NNTT position to 'unduly influence' decisions of the NNTT, to benefit FMG.
45 There is no arguable basis for this imputation and it must be struck out.
Category 4
46 The fourth category concerns Ms Maher's alleged knowing assistance in the destruction of Indigenous sites. This is also clearly untenable. The deficiencies here are obvious. First, there is no reference found in the article to a destruction of any Indigenous site, let alone to sites plural. Reference is made in the article, via the MGA Consulting report, to an issue of whether the Kangeenarina Creek should receive protection or not, as an ethnographic site in reference to s 5 of the Aboriginal Heritage Act 1972 (WA). A clash of anthropological views is mentioned by reference to the opposite position of Mr Goode. He is said to have resisted pressure from FMG to remove his report's references to the importance of that creek.
47 But nothing is found in the article concerning whether FMG has even commenced mining or, if it had, what, if anything, has happened to the Creek, or any other relevant site, since.
48 Furthermore, this imputation, by reference to 'assistance' in destruction of sites, overreaches. The chosen terminology of 'knowingly assisted' delivers a blurring of legal concepts, perhaps by the subconscious invocation of the second limb of Barnes v Addy (1874) LR 9 Ch App 244. This creates more confusion in this context.
49 This imputation will also be struck out.
Category 2
50 The second category of imputation asserts an alleged abuse of power by Ms Maher. The problem is that the article makes no reference to any relevant exercise of power by Ms Maher in her capacity as state manager of the NNTT.
51 Absent an identified exercise of power by Ms Maher, this imputation's grievance, grounded upon the abuse of the power 'entrusted in her', is wholly misconceived.
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52 A reasonable reader with a basic level of literacy would surely discern here that the essential criticisms made of Ms Maher by the article concern her alleged conflicts of interest - by reference to non-disclosed ties to her partner, to her daughter or to MGA Consulting. No aspect of the article's criticisms approaches an arguable exercise of any power entrusted to Ms Maher in her role of state manager of the NNTT, let alone the abuse by her of such power.
53 Confronted with this apparent deficiency during argument, counsel for the plaintiffs appeared to accept that if the word 'power' in the imputation were replaced by the word 'position', then most criticisms could then be deflected. I agree.
54 My prima facie assessment is that, if this category of imputation were amended to contend that the first plaintiff 'had abused her position as the state manager of the NNTT', such imputation so revised, would be arguable, assessed on the natural and ordinary meaning of the words of the publication, measured according to the standard of the ordinary reasonable reader.
55 I will grant leave to the plaintiffs to replead all imputations in any event. It remains to be seen whether an amendment is made in terms assessed above, as regards abuse of 'position'.
Category 1
56 The first category of imputation concerning Ms Maher's alleged disclosure of 'confidential information' about hearings before the NNTT, has given me most concern.
57 The grievance obviously relates to the asserted communications as between Ms Maher and her partner, the second plaintiff, Mr Gallagher, who the article says at one time worked for FMG.
58 Communications as between Ms Maher and Mr Gallagher, attributed in the article to a Mr Kerry Savas, are relevant. See particularly: '[Mr Gallagher] spent all day checking on the NNTT business. I know he was talking to her (Ms Maher). This was a daily occurrence.'
59 Counsel for the plaintiffs emphasised at this point particularly, the broader overlay of the supposedly pejorative article reference to Ms Maher leaving the NNTT in August 2012 'as a result of a "restructure"'.
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60 The defendants' core criticism of this imputation is that there is nothing in the article to suggest 'confidential information' was ever disclosed in any conversation between the two plaintiffs. It was said the ordinary reasonable reader would at least surely know NNTT hearings would be conducted openly. In my view, that premise cannot be accepted as notorious. Further, it was said that for NNTT hearings, that the article was explicit about the lack of any involvement by the Western Australian state manager (Ms Maher) as regards NNTT decisions concerning land access or the approval of mineral licences. That must be accepted.
61 Nevertheless, in the overall context of the article as a whole (and its criticisms concerning Ms Maher's non-disclosure of her partner relationship to her employer) my assessment is that this imputation is arguable and can go on to be evaluated at a trial.
62 The article does not identify any specific confidential information allegedly disclosed. But it does say (as regards Mr Savas' communications with The Australian newspaper) that 'Ms Maher and Mr Gallagher had discussed hearings at the NNTT concerning the WYAC on a "daily" basis'. An ordinary reader, reading between the lines, may arguably reach the view that confidential information held by Ms Maher as part of her senior NNTT position was disclosed in frequent discussions concerning the WYAC, which Mr Savas relates with some concern in the article and later rationalises their disclosure by him as a lawyer in terms of his obligations to WYAC as well as to the court.
63 From the words of the article it takes only minimal imagination to see a basis for an allegation that information regarding WYAC had passed between the plaintiffs. It is a very small step from there to accept that the information discussed about the hearings may have been confidential before the information was canvassed in a NNTT hearing even if that hearing was openly held. See generally Favell v Queensland Newspapers Pty Ltd (190) as regards 'smoke' suggesting 'fire'.
64 In the end, the category 1 imputations should stand for trial.
Evaluation of imputation categories 5 and 6 by second plaintiff Mr Gallagher
Category 5
65 For Mr Gallagher, as second plaintiff, the relevant imputation raised is that he 'knowingly assisted in the production of a false report for
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- Fortescue Metal Group so it could gain approval for its Solomon Hub project'.
66 This imputation exhibits insuperable difficulties.
67 First, I make an assumption favourable to Mr Gallagher that the report referred to concerning FMG is the MGA Consulting report - with Mr Gallagher mentioned in the article as being a co-director of MGA Consulting. Even so, the article displays no reference, explicit or implicit, to Mr Gallagher having any degree of involvement in preparation of that MGA report. There is no basis in the wording of the article, therefore, to support the contention as to his 'assistance' in the report's production, let alone his 'knowing' assistance - an unnecessary and diverting add-on.
68 Even assuming an imaginative and enquiring mind in the ordinary, reasonable reader who detects 'smoke' and thinks 'fire', this imputation goes too far - straying over, on my assessment, to the realm of unreasonableness and undue avidness for scandal.
69 The notion of a 'false report' also overreaches. Assuming that report to be an attempted reference to the MGA Consulting report, the article only mentions (by reference to Kangeenarina Creek) that it was the implication of the MGA Consulting report as to there being 'no need to protect the creek'. The article ties this aspect of the report to the finding by MGA Consulting that the creek did not constitute an ethnographic site in terms of s 5 of the Aboriginal Heritage Act.
70 The article throws up a clash of views as between the MGA report and the anthropologist Mr Goode. He took a view about the importance of the creek. He also resisted pressure according to the article from FMG (not from the plaintiffs) to remove references to the importance of the creek in his report.
71 But the criticisms in the article directed at the conduct by FMG will not provide a basis to suggest Mr Gallagher assisted in production of the MGA report, or then, that the MGA report itself was 'false'. A 'false' report is a markedly different creature to a clash of views about the importance of an ethnographic site.
72 Distinct criticism that the MGA Consulting report was biased (favouring FMG), or even drawn to favour FMG, still does not rise to a level of showing the views expressed in it were 'false'. In my view, that
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- conclusion could not be reached by a literate, reasonable reader who read the whole article.
73 The imputations under category 5 as regards Mr Gallagher are not open, even assessed at the low threshold of possible arguability.
74 Accordingly, these imputations must be struck out.
Category 6
75 The other class of imputation contended by Mr Gallagher out of the article is that he had 'conspired with the first plaintiff to improperly obtain confidential information about hearings before the NNTT for the benefit of FMG' (emphasis added). This imputation is framed differently at par 16.2 of the Statement of Claim (see there, reference to 'his partner', rather than to 'the first plaintiff').
76 As I have observed already, the overwhelming burden of the publication is a criticism of Ms Maher by reason of her failures to disclose certain personal ties or a commercial interest to her employer.
77 One of those ties was her relationship with Mr Gallagher. But according to the article, Mr Gallagher, unlike Ms Maher, worked as a consultant in the private sector at all times, either for FMG or for WYAC. Mr Gallagher was not subjected to public sector disclosure standards concerning any links he had to private interests groups.
78 The reference to 'conspired' indicates a conspiracy as between these plaintiffs. Conspiracy indicates a common, covert objective.
79 As to his alleged involvement in a conspiracy to get confidential information, the article does make reference to Mr Gallagher's constant level of contact with his partner, Ms Maher, and to daily discussions with her (according to Mr Savas) as to NNTT hearings concerning the WYAC.
80 Whilst such a level of contact might reflect adversely upon Ms Maher as the NNTT's West Australian 'Native title boss', a pejorative stamp for Mr Gallagher does not necessarily follow. The fact of daily telephone dialogue as between partners does not of itself raise a sufficient edifice to support a contention of conspiracy against him.
81 It would probably be defamatory to allege simply that someone conspired to obtain confidential information, let alone to obtain confidential information 'for the benefit of FMG'. To 'improperly' obtain
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- that confidential information in the context of a conspiracy only makes what is being driven at more unclear.
82 Unfortunately, the category 6 imputation on behalf of Mr Gallagher blurs and bends different multiple grievances.
83 A problematic use of the term 'improperly obtain' in this imputation requires me to pause to mention the concept of 'weasel words'. The phase 'weasel word' was popularised by Theodore Roosevelt in 1916 as he made his declaration that the 'tendency to use what have been called weasel words was "one of the defects of our nation"'. The concept emerges even earlier. It appears to be drawn from William Shakespeare's play As You Like It, in which Jaques says he could suck 'melancholy out of a song as a weasel sucks eggs' (As You Like It, Act II, scene V). The implication is that a weasel word is a word lacking in substance and devoid of meaning, despite its presence in popular vocabulary.
84 The word 'improper' (likewise 'improperly') is a weasel word due to a profusion of meanings it is capable of carrying. 'Improper', like 'corruption', is a word best avoided in formulating imputations. 'Improperly' will potentially be objectionable, if the nature of the impropriety is unclear: see Gascoine v McGinty (1995) 14 WAR 542; Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260; cf Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, 138 (Gleeson CJ).
85 The word 'caused' has been classed as a weasel word, for 'such is its convenient ambiguity, no-one will ever know the way in which it is being used or understood': see Amalgamated Television Services Pty Ltd v Marsden [1988] 43 NSWLR 158, 163; and, as well, my decision in Rambal v Cahill [2012] WASC 353.
86 In present circumstances, the category 6 imputation concerning Mr Gallagher runs together distinct pejorative meanings as to a conspiracy, obtaining (improperly) confidential information and then seeking to advance the interests of a third party. This is unclear and unacceptable. It must also be struck out as well.
87 If the category 6 imputation were amended to a contention that Mr Gallagher had 'obtained confidential information from his partner Ms Maher about hearings in the NNTT for the benefit of FMG' it would then, in my view, be arguable.
88 I strike out the present category 6 imputation, with leave to replead.
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Conclusion
89 On my assessment, the imputations complained of under categories 2 to 6, manifested throughout the statement of claim, should be struck out. The plaintiffs have leave to replead all their imputations. The imputations under category 1 may stand for a trial.
90 I will hear the parties as to directions and costs orders arising out of these reasons within 14 days.
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- Schedule A
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- Schedule A (cont ...)
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