Maher v Nationwide News Pty Ltd [No 2]
[2013] WASC 365
•9 OCTOBER 2013
MAHER -v- NATIONWIDE NEWS PTY LTD [No 2] [2013] WASC 365
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 365 | |
| Case No: | CIV:2918/2012 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 9/10/13 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Paragraphs struck out | ||
| B | |||
| PDF Version |
| Parties: | LILLIAN MAHER MICHAEL GALLAGHER NATIONWIDE NEWS PTY LTD PAUL CLEARY |
Catchwords: | Defamation Aggravated damages Strike out application Separate defamation raised by book Embarrassment Case management considerations |
Legislation: | Defamation Act 2005 (WA), s 35 |
Case References: | Ali v Nationwide News Pty Ltd [2008] NSWCA 183 Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474 Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB) Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB) Maher v Nationwide News [2013] WASC 254 Praed v Graham (1889) 24 QBD 53 Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264 The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416 Triggell v Pheeney (1951) 82 CLR 497 Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58 Wong v Aripin [2011] WASC 174 |
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 - Aggravated damages - Strike out application - Separate defamation raised by book - Embarrassment - Case management considerations
Legislation:
Defamation Act 2005 (WA), s 35
Result:
Paragraphs struck out
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Solicitors:
First Plaintiff : Bennett + Co
Second Plaintiff : Bennett + Co
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Ali v Nationwide News Pty Ltd [2008] NSWCA 183
Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474
Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB)
Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB)
Maher v Nationwide News [2013] WASC 254
Praed v Graham (1889) 24 QBD 53
Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264
The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416
Triggell v Pheeney (1951) 82 CLR 497
Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58
Wong v Aripin [2011] WASC 174
1 KENNETH MARTIN J: In the aftermath of my reasons for decision in Maher v Nationwide News [2013] WASC 254 delivered 5 July 2013, the plaintiffs filed an amended statement of claim. The revised imputations now relied upon (separately by the first and second plaintiffs; see pars 6 - 7 of their amended statement of claim filed on 16 August 2013) are no longer controversial, at least from a strike out perspective.
2 As regards Mr Gallagher (the second plaintiff) par 7 now reads:
The Australian newspaper article was defamatory in its natural and ordinary meaning and meant and was understood to mean that the second plaintiff …
7.2 [sic] whilst acting as a consultant to Wirlu-Murra, sought and obtained confidential information from his partner about hearings in the NNTT for the benefit of the Fortescue Metal Group.
4 A like imputation is pleaded by the amended statement of claim concerning the second plaintiff as regards an online internet publication (see par 11 and, as regards further publications, par 16 of the amended statement of claim).
5 The defendants have not yet filed a defence. By a minute of orders (filed 23 September 2013) they challenge, by a second strike out application, limited parts of the recently amended pleading - essentially new pleas by which the second plaintiff claims aggravated damages.
6 New provisions in the amended statement of claim, as to a claim by Mr Gallagher for aggravated damages, present in the following terms:
Aggravated Damages
18. The Second Defendant's publication of a book authored by him entitled 'Mine-Field The Dark Side of Australia's Resources Rush' (Book) has been, improper unjustifiable and lacking in bona fides, in a manner which has aggravated the hurt, damage and distress suffered by the Second Plaintiff in that:
18.1 the Book contained within in it a chapter entitled 'Black Capital' which is defamatory of the Second Plaintiff;
18.2 the Book was published, and continues to be published, despite the Second Plaintiff having commenced defamation proceedings against the Second Defendant;
18.3 despite the Second Plaintiff's request by letter dated 22 April 2013, the publisher of the Book refused to withdraw it from further publication.
19. By reason of the facts, matters and circumstances described in paragraph 18 above, the Second Plaintiff has suffered further hurt and damage and claims aggravated damages against the Second Defendant.
7 Notwithstanding the above references to the position of Mr Gallagher only, by par 20.3 of the amended statement of claim, both plaintiffs claim aggravated damages.
8 I am now determining the defendants' application by its minute of orders filed on 23 September 2013 seeking that pars 18, 19 and 20.3 of the amended statement of claim dated 16 August 2013 be struck out.
9 Pursuant to my directions of 19 September 2013, the parties exchanged written submissions. The matter is being determined on the papers.
Principles: Aggravated damages
10 The defendants' written outline of 23 September 2013 invokes orthodox principles concerning an award of aggravated damages in a defamation action (see pars 1 - 3 of the defendants' submissions). In broad terms, these principles are:
(a) a claim for aggravated damages must be specifically pleaded together with the facts and matters in support of such a claim (Rules of the Supreme Court 1971 (WA) O 20 r 9(3));
(b) a tribunal, in assessing damages, is entitled to look at the whole conduct of a defendant, from the time the defamatory matter was published to the time of a verdict in favour of the plaintiff;
(c) the conduct of a defendant may lead to aggravated compensatory damages being awarded, if there has been a lack of bona fides in the defendant's conduct, or if the defendant's conduct was improper, or unjustifiable (Triggell v Pheeney (1951) 82 CLR 497, 513 - 514);
(d) aggravated damages are compensatory to a plaintiff for harm that has been exacerbated by the defendant's conduct in publishing defamatory matter or by subsequent conduct (Bickel v John Fairfax & Sons Ltd (1981) 2 NSWLR 474, 496 (Hunt J); Taylor v Network Ten (Perth) Pty Ltd [1999] WASC 264, 31 (Steytler J) and authorities there cited);
(e) conduct of a defendant which aggravates a plaintiff's damages need not be malicious; and
(f) aggravated damages are not limited to injury or hurt to a plaintiff's feelings (Waterhouse v Broadcasting Station 2GB Pty Ltd (1985) 1 NSWLR 58, 75 (Hunt J); Ali v Nationwide News Pty Ltd [2008] NSWCA 183 [80]). Aggravating conduct may also increase the reputational damage suffered (as distinct from being for compensation for hurt or injury to feelings). Prolongation of the defamation by an unsuccessful plea of justification in a defamation trial, is one example of such conduct.
The defendants' strike out contention
11 The conceptual focus of the defendants' strike out attack is directed at subpar 18.1. It is there asserted that a chapter in a book published by the second defendant is said not only to be critical of the second plaintiff, but as pleaded 'defamatory of the second plaintiff'. As I will explain below, that plea is problematic as regards Mr Gallagher seeking aggravated damages in this action.
12 The defendants attack this plea as embarrassing - contending it has potential to raise false issues in a trial and unnecessarily 'elongate the duration of the trial' (par 4 of the defendants' submissions).
13 The defendants also complain the plea lacks specificity and that par 18 'appears to be an attempt to litigate another alleged defamatory publication' (par 7 of the defendants' submissions).
14 In support of the attack upon par 18.1, the defendant invokes observations by Le Miere J in The Australian Medical Association (WA) Incorporated v McEvoy [No 2] [2012] WASC 416 [25]. There his Honour said:
The further publication may refer the reader to the publication sued on or otherwise give further life to the publication sued on. There may be circumstances which cause the further publication to increase the damage caused by the original publication rather than to cause a new injury to the plaintiff. On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation. In the former case the subsequent publication will aggravate the damage caused by the publication sued upon. In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action.
15 It is apparent that his Honour's observations make reference to decisions of the High Court of England and Wales, first by Gray J in Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB), then by Tugendhat J in Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB) (see McEvoy [No 2] [25]). The Collins Stewart decision made reference to the importance of case management considerations in that evaluation. Le Miere J cites passages from Gray J's observations at [28] of his reasons in McEvoy [No 2].
16 I considered the same line of UK decisions as to aggravated damages in Wong v Aripin [2011] WASC 174, see [43] - [53] .
17 There is an immediate problem with par 18.1 as formulated. The plea opens up a side issue concerning another allegedly 'defamatory' publication against Mr Gallagher in the book chapter entitled 'Black Capital'. The plea suggests a distinct cause of action by Mr Gallagher in defamation by reason of that distinct publication.
18 But worse, the formulation of the par 18.1 plea does not indicate the nature or character of the defamatory imputations said to arise against the second plaintiff in this book chapter. Then there is nothing to indicate that any defamatory imputations, as may be contended for arising in the chapter are connected, related to, or somehow concern the sole imputation (about seeking confidential information) that is now raised by the second plaintiff under the present proceedings.
19 By reference to [15] of McEvoy [No 2] and its differentiating criteria of a 'new injury' to a plaintiff's reputation, the par 18.1 plea as regards the chapter being 'defamatory of the second plaintiff', by use of the word 'defamatory', overwhelmingly points to a new action. That can be contrasted to another publication exacerbating or increasing hurt, injury or reputational damage caused by the publication of the matter that is subject of the present proceedings.
20 On the other hand, the plaintiff invokes a passage from Gatley on Libel and Slander (11th ed) [34.56] asserting that the plea, albeit capable of being better particularised, is not conceptually defective. The passage from Gatley on Libel and Slander relied on at [34.56], reads:
Evidence may be given that the defendant has published other defamatory words about the claimant, whether such words were or were not connected with the subject matter of the action, whether they were similar to, or different from, the words complained of, and whether publication took place prior to or subsequent to the publication giving rise to the action.
21 In my view, the passage relied upon from Gatley on Libel and Slander has been raised somewhat out of context. It is preceded by explaining in a temporal sense that the assessment of damages looks at the whole conduct of the defendant 'from the time the libel was published' to the 'jury's verdict' and referring back to Praed v Graham (1889) 24 QBD 53, 55.
22 As has been seen, one of the principles applicable to claiming aggravated damages is to show a defendant acted in a manner which is 'improper, unjustifiable or lacking in bona fides'. An act or omission taking place before or after the allegedly defamatory publication might in theory then cast some light on that criteria.
23 By reason of amendments to the Uniform Defamation Acts across Australia, proof of malice to establish aggravated damages is no longer open to a plaintiff (see s 35(2) of the Defamation Act 2005 (WA) and my observations in Wong v Aripin [32]). Nevertheless, as also previously observed, conduct which can aggravate a plaintiff's damages need not be malicious. Hence, a plaintiff showing a lack of bona fides by a defendant, by reference to the defendant's conduct before or after a publication, could be admissible evidence, relevant to showing a basis for aggravated damages.
24 In the present case however, the plea seen at par 18.1 goes much too far, first by contending that the chapter of the book entitled 'Black Capital' is defamatory of the second plaintiff, and second, by giving no indication at all as to how that might be so. In the circumstances the par 18.1 plea is clearly conceptually deficient and should be struck out.
25 From the parties' exchanged submissions there is also a third problem. There is a temporal ambiguity, concerning whether the book mentioned was published before or after the defamatory publications complained of by this action (ie 19 and 22 November 2012). The plaintiff points to the inside cover of the book and says it merely states, 'copyright @ Paul Cleary 2012'. So the plaintiff observes that unlike newspapers or emails, this book does not bear an actual date of publication, only the year (2012) of publication (par 22 of the plaintiffs' submissions).
26 Those submissions provide insight to the temporally equivocal pleas in par 18 concerning the publication of the book. The end position, overall, is unsatisfactory and embarrassing in terms of the case these defendants must meet at trial. The defendants simply do not know whether the allegedly aggravating conduct under par 18 happened before or after the allegedly defamatory publications of November 2012 as raised in this action. The temporal uncertainty about the book is particularly unsatisfactory given par 18.2 - which complains the book was published or continued to be published 'despite the second plaintiff having commenced defamation proceedings against the second defendant' (par 18.2 of the amended statement of claim). This rather suggests the book appeared after this action began.
27 These defamation proceedings were only commenced on 22 November 2012. Without a finite temporal framework as to the time of publication of the book, par 18.2 does not make sense. It is unacceptably equivocal and embarrassing.
28 Paragraph 18.3 is worse still. It speaks of a 'request to the publisher' of the book of 22 April 2013 on behalf of the second plaintiff, seeking the book be withdrawn from further publication. However, the unnamed publisher of the book is not pleaded to have any connection to the second defendant. Nor is it asserted the second defendant had or might have had any influence upon the book publisher as regards the withdrawal of the book from publication. The end position is again confusing and unsatisfactory.
29 The correlative defect consequences carry over from par 18 to infect par 19 and subpar 20.3. As stated above, subpar 20.3 seeks aggravated damages on behalf of both plaintiffs (although the only aggravating events pleaded concerned the second plaintiff alone).
30 In the end, my view is that these are not deficiencies capable of redress by further particulars at a later time. The pleas as to aggravated damages are seen to be conceptually and temporally misconceived.
31 By reference to the key distinction of principle explained by Le Miere J from the passage from McEvoy at [25] and as well to principles (iii), (iv) and (v), identified by Tugendhat J in Clark (t/a Elumina Ibenica UK) v Bain (and cited in Wong v Aripin at [43]) there presents unacceptable confusion concerning an attempt by par 18 to raise a side issue for what would effectively be a subsidiary defamation action about a book chapter. This is wrong in principle. It goes too far and is conceptually distinct to relying upon a publication on a basis merely that it aggravates the damage arising from the distinct publications already sued upon.
32 More importantly, particularly in circumstances where a defamation trial may involve a jury, case management considerations also dictate that any risks of a potential derailment of a trial by raising a subsidiary defamation action effectively as a side wind and framed around the content of a book, is likely to be confusing for a jury and thus inappropriate. If the second plaintiff seriously does wish to raise some grievance concerning what he says is defamatory matter published in the book about him, then this must be the subject of distinct proceedings.
33 In the circumstances, I will strike out pars 18, 19 and subpar 20.3 of the amended statement of claim. The defendant should have its costs of the strike out application (determined on the papers) to be taxed. I will allow the plaintiffs 14 days from the publication of these reasons to re-plead a further statement of claim. The defendants shall then have 14 days thereafter to file their defence. The matter will be listed for a further directions hearing at 9.15 am on Thursday 14 November 2013 at 9.15 am in my CMC list.
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