Maher v Nationwide News Pty Ltd [No 3] - [2014] WASC 194

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAHER -v- NATIONWIDE NEWS PTY LTD [No 3] [2014] WASC 194

CORAM: KENNETH MARTIN J

HEARD: 7 MARCH & 7 APRIL 2014, ON THE PAPERS

DELIVERED : 4 JUNE 2014

FILE NO/S: CIV 2918 of 2012

BETWEEN: LILLIAN MAHER
First Plaintiff
MICHAEL GALLAGHER
Second Plaintiff
AND
NATIONWIDE NEWS PTY LTD
First Defendant
PAUL CLEARY
Second Defendant

Catchwords:

Civil law and procedure - Defamation - Application to strike out defence - Justification - Insufficient particularity

Legislation:

Nil

Result:

Application granted

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):

FMG Pilbara Pty Ltd/Ned Cheedy and Ors obh of the Yindjibarndi People/Western Australia [2011] NNTTA 107
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
Maher v Nationwide News Pty Ltd [2013] WASC 254

KENNETH MARTIN J: The application by the plaintiffs by their minute of proposed orders of 21 January 2014 seeks that pars 17 and 18 of the amended defence dated 20 January 2014 be struck out. The application was agreed to be determined wholly on the papers, on the basis of an exchange of written submissions. To that end, I hold the plaintiffs' written submissions of 7 March 2014, responded to by the defendants' written submissions of 7 April 2014.
Some background to the present application can be found in my decision Maher v Nationwide News Pty Ltd [2013] WASC 254. There I addressed the defendants' then attack against certain of the imputations sought to be raised by the plaintiffs, in respect of an article published at page 6 of The Australian on 19 November 2012, under the headline 'Native Title Boss Didn't Reveal Ties With FMG'. The outcomes from that 2013 decision led to certain revisions and adjustments to the imputations as contended for by both plaintiffs and as reflected in a further amended statement of claim (FASC) filed on 10 October 2013.
But on this occasion the plaintiffs raise a pleadings challenge by strike out against aspects of the amended defence. The only paragraphs challenged are pars 17 and 18.
Paragraph 17 raises a plea of justification against certain of the imputations as found at par 6.1 of the FASC, and against the corresponding imputations as seen at pars 10.1 and 15.1, concerning the first plaintiff, Ms Maher.
Paragraph 18 raises a plea of justification against the imputation seen pleaded at par 7.1 of the FASC concerning the second plaintiff, Mr Gallagher. Corresponding imputations concerning Mr Gallagher are at pars 11.1 and 16.1 of the FASC.
It will be more convenient if I set out the paragraphs from the FASC to which the amended defence responds, under pars 17 and 18. I will separate the pleas and responses, first, by reference to Ms Maher, in the first instance, followed by the plea and response concerning Mr Gallagher.

Paragraph 17 of the amended defence: Ms Maher

The relevant plea in the FASC is in the following terms:
6.The Australian Newspaper Article was defamatory in its natural and ordinary meaning and meant and was understood to mean that [Ms Maher]:
6.1disclosed confidential information about hearings in the [National Native Title Tribunal] NNTT for the benefit of the Fortescue Metal Group;
The plea of justification under the amended defence at par 17, is:
If, which is denied, The Australian Newspaper Article, The Australian Online Article and the Further Publications (the Matters Complained Of), convey the imputation pleaded at paragraph 6.1 (and the corresponding imputation in paragraphs 10.1, or 15.1) ('first plaintiff's first imputation') of the Statement of Claim, the defendants say that the imputation is true in substance and in fact.
Particulars of Truth - First Plaintiff's first imputation
(a)The first plaintiff is the spouse of the second plaintiff;
(b)During the period 1994 to August 2012 the plaintiff was employed by the National Native Title Tribunal (NNTT) as its State Manager;
(c)The roles of the State Manager were to, inter alia, provide expert evidence to Members, the Tribunal executive, strategy/policy groups and external bodies, on native title legislation and options for resolving native title matters;
(d)As at February 2011 the first plaintiff was a director of consulting company, MGA Consulting Pty Ltd (MGA) which conducted its business in part under the name RCD Consulting;
(e)The first plaintiff is the sole director, secretary and shareholder of Sillytown Pty Ltd;
(f)Sillytown is the sole shareholder of MGA;
(g)The second plaintiff was at all material times a consultant for the Wirlu-murra Yindjinbarndi Aboriginal Corporation Corporation [sic], (WM);
(h)The second plaintiff, whilst ostensibly an independent consultant, continued to act in the matter referred to in (i) below at the direction of FMG and in its interests in opposition to the Yindjibarndi Aboriginal Corporation as set out in (j) below;
(i)On 25 August 2010, FMG Pilbara Pty Ltd, applied to the NNTT to make a future act determination pursuant to section 35 of the Native Title Act 1993 (Cth) in respect of mining lease applications;
(j)The application was opposed by the Yindjibarndi Aboriginal Corporation but supported by the WM (FMG Application);
(k)The FMG application was to be determined by NNTT Member Dan O'Dea, who delivered his reasons for decision on 17 June 2011 and amended on 9 July 2011;
(l)During the period May to June 2011 the second plaintiff regularly telephoned the first plaintiff and they discussed at length his work on the FMG application and the status of the determination and finalisation of Mr O'Dea's reasons;
(m)The information discussed by telephone as to the progress of Mr O'Dea's reasons was of its nature confidential, in view of the working relationship between members of the NNTT and the first plaintiff and the fact it was communicated to only one party to the dispute before the NNTT.
(n)The aforesaid contracts, and her relationship with the second plaintiff, Mr Gallagher who was making those contacts, were not disclosed by the first plaintiff to her superiors.

Imputation and plea of justification: Mr Gallagher

The FASC contends the article in The Australian was defamatory of Mr Gallagher in its natural and ordinary meaning, as it was understood to mean that he:
7.1whilst acting as consultant to Wirlu-murra, sought and obtained confidential information from his partner [Ms Maher] about hearings in the NNTT for the benefit of the Fortescue Metal Group.
The justification plea to that imputation under par 18 is as follows:
If, which is denied, the Matters Complained Of conveys the imputation pleaded at paragraph 7.1 (and the corresponding imputation in paragraphs 11.1, or 16.1) ('second plaintiff's imputation') of the Statement of Claim, the defendants say that the imputation is true in substance and in fact.
Particulars of Truth - Second Plaintiff's Imputation
The defendant repeats the particulars set out at paragraph 17(d) to (m) above.

Evaluations

The central feature arising in both the imputations and in the pleas of justification in response - as regards the plea of truth in substance and in fact - is the contention as to disclosure of 'confidential information' by Ms Maher to Mr Gallagher.
As characterised in the imputations pleaded, the confidential information is said to concern 'hearings in the National Native Title Tribunal' (NNTT) and its disclosure said to have been, 'for the benefit of the Fortescue Metal Group'.
The imputation at 7.1 regarding Mr Gallagher also concerns 'confidential information', 'hearings' in the NNTT, and his conduct for 'the benefit of the Fortescue Metal Group'.
The pleas of justification require immediate focus upon the particulars of truth, as seen under pars 17(a) - (m). Of key significance there are particulars (k), (l) and (m) identifying a particular NNTT hearing, apparently leading to the reasons for decision delivered by NNTT Member Mr O'Dea, in FMG Pilbara Pty Ltd/Ned Cheedy and Ors obh of the Yindjibarndi People/Western Australia [2011] NNTTA 107 (17 June 2011).
As regards a possible disclosure of any confidential information by Ms Maher to Mr Gallagher, the relevant alleged period under particular (l) can be seen to span the period May to June 2011, by the medium of telephone contact between them in that period.
Particular (l) also displays a reference to a seemingly irrelevant (other than contextually) discussion of Mr Gallagher's own work on the FMG application, this being directed to (see particular (i)) FMG's application to have the NNTT make a 'future act' determination, pursuant to s 35 of the Native Title Act 1993 (Cth) in respect of certain mining lease applications. A discussion about Mr Gallagher's work does not engage upon the only relevant issue - ie, disclosed NNTT confidential information, emanating from Ms Maher to Mr Gallagher.
Of direct significance, however, is the asserted area of discussion (again particular (l)) as alleged between these plaintiffs concerning 'the status of the determination and finalisation' of NNTT Member O'Dea's reasons.
There is an unacceptable degree of uncertainty about the phrase 'status of the determination'. Little enlightenment towards understanding that status concept is extractable from following particular (m) - which merely identifies some unspecified information 'as to the progress of Mr O'Dea's reasons' being the subject of discussion by telephone. Nothing more definitive emerges, as to what is said to have passed as confidential information by telephone from Ms Maher to Mr Gallagher about the 'progress' of Mr O'Dea's reasons between May 2011 and the time Mr O'Dea's first reasons were published on 17 June 2011.
Particular (m) goes on to contend that this information concerning the progress of Mr O'Dea's reasons 'was of its nature confidential'. That bare assertion, without more, also appears to be lacking in requisite detail.
Assuming there had been a (public) hearing involving FMG, at the end of which time NNTT Member O'Dea reserved his decision to be given later, a question arises as to just what was relevantly said about the progress of his reasons which could be viewed as confidential information. For instance, it would have been self-evident in the period before 17 June 2011 that this NNTT member's reasons had not been delivered. It also would have been self-evident that Mr O'Dea would probably be working on completing his reserved reasons from time to time after 17 June 2011. What is lacking is something more in terms of an inherently confidential piece of information that might have been disclosed about the progress of the reasons, in contrast to something about the content of the reserved reasons which would more obviously bear a confidential status.
I could speculate, for instance, that the defendants are driving at some disclosure remark made by Ms Maher, such as that Mr O'Dea's reasons were imminent; or they were a week away, they were a long way off, or that drafts had been prepared, and so forth. But I should not need to speculate, and more importantly, nor should the plaintiffs.
At the moment, the pleaded reference in the amended defence particulars to passing to Mr Gallagher confidential information as to the 'progress of Mr O'Dea's reasons' is not nearly enough to support the current plea of justification.
From a longer term overall case management perspective, I can also foresee a serious forensic problem looming at any trial on this aspect of the defence and pleas of justification.
Assuming the plaintiffs will provide their witness statements and be cross-examined upon them at a trial, it is almost inevitable they would be questioned under a competent cross-examination about their alleged telephone contact, in the period between May and June 2011. The pleas under (k) and (m) are limited to 'the status of the determination and finalisation of Mr O'Dea's reasons and 'the progress of Mr O'Dea's reasons' (my emphasis). I would also assess it as almost inevitable that there will be tension and uncertainty at trial about the permissible scope of a cross-examination under the present particulars. The use of such 'fuzzy' phrases is for me, as the case manager and putative trial judge, simply too open ended to measure and then draw boundaries upon what is relevant and irrelevant questioning at a trial.
In my view, the plaintiff is entitled to know now and with far greater clarity and certainty what she actually is alleged to have disclosed and discussed, as regards 'the progress of Mr O'Dea's reasons'. This further information may then be tested against the criteria of whether or not it could arguably carry a confidential character. That is the second aspect of the present challenge. But in my view, it is simply not possible to render that determination, because the description of the information at present is too vague.
On that basis, I must strike out the pleas of justification, but with leave to re-plead.
Like observations apply in respect of the attack against par 18 of the amended defence, as it incorporates by reference the same particulars under par 17 (save for particular (n)).
The written submissions essentially make the same points I have now resolved in favour of the plaintiffs' application.
The defendants' submissions in resisting the applications seek to emphasise a well-understood conceptual distinction as between particulars and evidence. The conceptual character of that legal distinction may readily be accepted. In the presenting context of the currently seen justification defence, however, case management considerations strongly dictate that a future trial ought not be allowed to proceed upon the basis of a justification defence that 'promises much, but actually delivers little'.
As currently framed in relation to what is a serious imputation of disclosing the NNTT's confidential information for an ulterior purpose, the current particulars are not only unacceptably vague, they are also underwhelming. Until there is greater particularity in relation to the information said to have been disclosed, I am, along with the plaintiffs, essentially left to speculate over why such information might carry a confidential character, not to mention over how such information could have been of any arguable benefit to FMG.
One of the authorities cited by the plaintiff in support of this application is a 1787 case, J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357. The decision is a libel case decided in the Court of Common Pleas, in respect of an article in an Irish publication of the day, The Morning Post, which referred to the plaintiff as a 'notorious swindler'. Of particular note is the passage which is still quoted in Muller A and Parkes R, (eds), Gatley on Libel and Slander (2013) 1037 fn 65. The passage is from Ashurst J, at 99 ER 1359, who said, in words that still have a resonance in the present day:
When he took upon himself to justify generally the charge of swindling, he must be prepared with the facts which constitute the charge in order to maintain his plea; then he ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to justify his whole life.
For this case, important particulars which would go towards justifying the imputations pleaded, are currently seen to be unacceptably opaque. I am not prepared to allow a future trial to run on that basis. The defects manifested by the lack of particularity in the justification pleas must be corrected.
There should however be a further opportunity to supplement the present information by further amendment or particulars. The plaintiff does not oppose leave to re-plead, which I will grant.