Maher v Nationwide News Pty Ltd [No 4]
[2014] WASC 461
•8 DECEMBER 2014
MAHER -v- NATIONWIDE NEWS PTY LTD [No 4] [2014] WASC 461
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 461 | |
| Case No: | CIV:2918/2012 | ON THE PAPERS BY WRITTEN SUBMISSIONS OF 17 OCTOBER, 10 & 18 NOVEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 8/12/14 | |
| 15 | Judgment Part: | 1 of 1 | |
| Result: | Application allowed | ||
| B | |||
| PDF Version |
| Parties: | LILLIAN MAHER MICHAEL GALLAGHER NATIONWIDE NEWS PTY LTD PAUL CLEARY |
Catchwords: | Civil law and procedure Defamation Application to strike out defence Justification Insufficient particularity Contextual truth and inadequacy of plea |
Legislation: | Defamation Act 2005 (WA), s 26 |
Case References: | Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 Hepburn v TCN Channel Nine Pty Ltd [1983] 1 NSWLR 386 Ives v The State of Western Australia [No 8] [2013] WASC 277 J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Maher v Nationwide News Pty Ltd [2013] WASC 254 Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 Walsh v Bennetts [2014] WASC 453 |
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:
Civil law and procedure - Defamation - Application to strike out defence - Justification - Insufficient particularity - Contextual truth and inadequacy of plea
Legislation:
Defamation Act 2005 (WA), s 26
Result:
Application allowed
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):
Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Hepburn v TCN Channel Nine Pty Ltd [1983] 1 NSWLR 386
Ives v The State of Western Australia [No 8] [2013] WASC 277
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Maher v Nationwide News Pty Ltd [2013] WASC 254
Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Walsh v Bennetts [2014] WASC 453
1 KENNETH MARTIN J: By their application of 20 October 2014 both plaintiffs attack various paragraphs of the defendant's further reamended defence (FREAD), filed 1 October 2014. My reasons for decision in Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194 provide some background concerning the plaintiffs' previous pleading challenges against what was then an amended defence pleading of 20 January 2014.
2 Subsequent to those reasons, there has been a reamended defence filed 24 July 2014 and now the FREAD of 1 October 2014, which is the subject of the present application.
3 Not all of the FREAD is challenged on this application. Only pars 17, 18, 19 and 20 are attacked by the plaintiffs, on the basis that they should be struck out, albeit with leave for the defendants to replead.
4 Paragraphs 17, 18 and 19 concern Ms Maher. Paragraphs 17 and 18 seek to raise pleas of justification directed severally against two of three imputations contended for by Ms Maher arising out of the matters complained of. Paragraph 17 of the FREAD responds to the imputation under par 6.3 of the plaintiffs' further amended statement of claim (FASC) of 10 October 2013.
5 Paragraph 18 of the FREAD seeks to raise a plea of justification against the imputation found under par 6.2 of the FASC. Paragraph 6.2 and par 6.3 of the FASC both have counterparts elsewhere in the FASC.
6 Paragraph 19 of the FREAD is a wholly new plea. It seeks to raise a defence of contextual truth to defend against all three of the imputations as contended for by Ms Maher, invoking s 26 of the Defamation Act 2005 (WA).
7 The FREAD defence par 20 plea challenged by the plaintiffs, concerns a contextual truth defence response put against the sole imputation raised by the second plaintiff, Mr Gallagher, under par 7.1 of the FASC.
8 The plaintiffs seek to raise conceptual pleading challenge objections against these four paragraphs. Their position is explained in the 10 pages of the plaintiffs' written submissions filed on 17 October 2014, supporting the strikeout application.
9 At this point, it is necessary to set out aspects of the parties' current pleadings.
Key aspects of the further amended statement of claim (FASC) of 10 October 2013
10 Three popular (false) innuendos arising out of the publications complained of, are contended for within par 6 of the FASC pleading.
11 The first plaintiff, Ms Maher, contends by par 6:
6. The Australian Newspaper Article was defamatory in its natural and ordinary meaning and meant and was understood to mean that the first plaintiff [ie, Ms Maher]:
6.1 disclosed confidential information about hearings in the NNTT [National Native Title Tribunal] for the benefit of the Fortescue Metal Group (FMG);
6.2 abused her position as the State Manager of the NNTT;
6.3 failed to declare conflicts of interest with FMG.
13 The imputation under FASC par 6.2 is found recurrently in the FASC, as regards other publications, see pars 10.2 and 15.2.
14 The imputation formulated under par 6.3 is replicated concerning other publications, see under par 10.3 and par 15.3 of the FASC.
15 The justification pleas as articulated by the defendants seek to engage against the imputations in par 6.2 and par 6.3, as well as against subsequent manifestations of the same imputations, said to arise in the other publications complained of in the FASC.
16 Concerning the second plaintiff, Mr Gallagher, par 7 of the FASC carries a sole imputation as a popular (false) innuendo contended for by him. Paragraph 7 is in terms:
7. The Australian Newspaper Article was defamatory in its natural and ordinary meaning and meant and was understood to mean that the second plaintiff [ie, Mr Gallagher]:
7.1 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.
18 By par 20 of the FREAD, however, there is seen in response to FASC par 7, another plea of contextual truth, said to be substantially true and presumably, seeking to invoke in defence s 26 of the Defamation Act 2005.
19 I will set out below the substance of the impugned FREAD paragraphs which essentially seek to engage against the imputations found under either par 6 (and its counterparts, concerning imputations raised by Ms Maher) and against par 7, concerning the imputation raised by Mr Gallagher.
20 For reasons not entirely clear, par 17 in the FREAD seeks to raise a justification defence against par 6.3. This is not in chronological order with what follows under par 18 of the FREAD - which seeks to engage by justification against the imputation under par 6.2 of the FASC.
Impugned paragraphs of the further reamended defence (FREAD)
21 Remembering the par 6.3 imputation complained of by Ms Maher concerned her having failed to declare conflicts of interest with FMG, the justification defence seen under par 17 of the FREAD is in these terms:
17. If, which is denied, the Matters Complained Of conveys [sic] the imputation pleaded at paragraph 6.3 (and the corresponding imputation in paragraphs 10.3, or 15.3) ('the first plaintiff's third imputation') of the Statement of Claim, the imputation is true in substance and in fact.
22 There follow a sequence of some 19 particulars of justification, grouped under various headings - which it will be necessary to set out below. One of the chief grievances raised by the plaintiffs' application is that the particulars of justification, on analysis, do not, even viewed at an undemanding standard of bare arguability, provide a sufficient basis to support a defence of substantial truth to the imputation of Ms Maher having failed to declare a conflict of interest with FMG.
23 The particulars relied upon under par 17 are repeated to sustain the plea of justification by the FREAD under par 18.
24 For clarity's sake, references in the particulars to the various plaintiffs have been adjusted to expressly refer to either Ms Maher or Mr Gallagher, as the case may be:
Ms Maher's role at the NNTT and her involvement in corporate entities
(a) Ms Maher is the spouse of Mr Gallagher;
(b) during the period 1994 to August 2012 Ms Maher was employed by the National Native Title Tribunal (NNTT) as its state manager;
(c) the role of the state manager was 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 Ms Maher was a director of consulting company, MGA Consulting Pty Ltd (MGA) which conducted its business in part under the name RCDC Consulting;
(e) Ms Maher is the sole director, secretary and shareholder of Sillytown Pty Ltd;
(f) Sillytown is the sole shareholder of MGA;
(g) Mr Gallagher was at all material times the second director of MGA and a consultant for the Wirlu-murra Yindjibarndi Aboriginal Corporation (WM).
(h) Mr Gallagher, whilst ostensibly an independent consultant, continued to act in the manner referred to in (i) below at the direction of FMG and in its interests in opposition to the Yindjibarndi Aboriginal Corporation (YAC) 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 s 35 of the Native Title Act 1993 (Cth) in respect of mining lease applications;
(j) the application was opposed by the YAC 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.
Ms Maher's family
(l) in September 2011 MGA was engaged by FMG through the office of its Heritage Manager, Lisa Maher, to undertake a Heritage survey of the Solomon Hub site with WM in the Yindjibarndi;
(m) Lisa Maher is Ms Maher's daughter;
(n) by virtue of her position as a sole shareholder of Sillytown, Ms Maher gained a benefit from the engagement of MGA by FMG in that such engagement benefited MGA financially and/or through furthering its commercial relationship with FMG.
MGA/RCD Consulting
(o) on or around April 2012, WM engaged RCD Consulting, in return for the payment of consulting fees, to conduct governance and strategic planning workshops for its staff and directors;
(p) RCD is owned by MGA;
(q) RCD and MGA share the same Australian Business Number;
(r) by virtue of her position as a sole shareholder of Sillytown, Ms Maher gained a benefit from the engagement of RCD by WM;
(s) WM was funded by FMG.
FREAD paragraph 18
25 Before moving to discuss the challenges raised against the plea of justification, it is more convenient to set out FREAD defence par 18.
26 It responds to the imputation raised under par 6.2 of the FASC, namely, the imputation of abuse of Ms Maher's position as state manager of the NNTT.
27 Paragraph 18 of the FREAD pleads a defence of justification, in these terms:
18. If which is denied, The Matters Complained of convey the imputation pleaded at par 6.2 (and the corresponding imputation in pars 10.2, or 15.2) ('the first plaintiff's second imputation') of the Statement of Claim, the imputation is true in substance and in fact.
Particulars of truth - the first plaintiff's second imputation
The defendants repeat the particulars set out at par 17 above.
28 Having set out all the provided particulars of justification from the FREAD relevant to par 17 and par 18, I am now in a position to resolve the challenges raised against them by Ms Maher under her application.
Ms Maher's arguments challenging the adequacy of the particulars provided for the pleas of justification by pars 17 and 18 of the FREAD
29 There is first an objection raised on the part of the defendants that the grievances now sought to be pursued concerning imputations 6.2 and 6.3 are out of time or should have been raised earlier. This delay or waiver objection was attempted to be supported by providing me with a tranche of conferral correspondence under the defendants' solicitor's affidavit of 11 November 2014. I reject the contentions.
30 The previous application I dealt with as Maher v Nationwide News [No 3] concerned pleas of justification raised against what was then imputation 6.1 and, as regards Mr Gallagher, 7.1. The challenges raised under that earlier application were successful. But there was leave to amend granted. In consequence, the defendants' particulars of justification relied upon as cited above at [24] have altered, by various excisions and augmentations. The reality, however, is that the end product now displays an altered character in an evolving pleading process.
31 It is not legitimate for the defendants to complain over what is now being challenged, upon essentially their altered justification responses under particulars now relied upon via the justification pleas in FREAD pars 17 and 18, as grievances that were resolved or ought to have been raised earlier.
32 The structural changes that have occurred to the provided particulars and their underlying contexts, render it legitimate in my view for those pleas to be reweighed under this application, against the altered pleas of justification, now raised.
Challenge to FREAD par 17 - pleas of justification to FASC imputation 6.3 - Failure to declare conflicts of interest
33 Under the 17 October 2014 written submissions of the solicitors for Ms Maher, they contend (at par 19), that the defendants have failed to assert under the particulars that:
(i) Ms Maher held a position by which she was required to declare a conflict of interest;
(ii) there was, in fact, a conflict of interest;
(iii) Ms Maher failed to declare that conflict of interest; and
(iv) the relevant conflict of interest was with FMG.
34 On my assessment of the particulars of justification currently provided to FREAD par 17, these grievances must be upheld. As the written submissions provided on Ms Maher's behalf say at par 18:
[T]he particulars fail to meet the relevant imputation pleaded … [they] simply recite a series of events and transactions which are said to have taken place in or about 2011 and 2012 between various stakeholders.
35 The essence of the imputation under par 6.3 is as to Ms Maher's asserted failure to declare conflicts of interest with FMG.
36 The par 17 justification plea is that this imputation is true in substance and in fact. But the reality is that an ordinary reader will struggle in vain to find through the 18 items in pars (a) - (s), in the current particulars provided to par 17, what factors or considerations would have required or obliged Ms Maher to make a conflict declaration.
37 Then, if she did, that reader would also not be able to ascertain what Ms Maher should have said concerning the nature of such a conflict of interest involving FMG.
38 How and why the obligation to make a conflict of interest declaration arose upon Ms Maher, and then who she should have made it to, and then what she ought to have disclosed - are all vital details left to be speculated over under the particulars. This is a wholly unsatisfactory situation for a serious plea.
39 The grievances raised on behalf of Ms Maher against the inadequacy of the particulars of justification must be upheld.
40 Paragraph 17 of the FREAD will therefore be struck out. As earlier indicated, leave to replead is not opposed and is granted.
Challenge to FREAD par 18 - pleas of justification to FASC imputation 6.2 - Abuse of position
41 It will be recalled that the FASC par 6.2 imputation was that Ms Maher abused her position as state manager of the NNTT. For FREAD par 18, the particulars given are identical to those under par 17 of the FREAD, being incorporated by reference.
42 Again Ms Maher's legal advisers contend the justification particulars are inadequate. They say that the conduct of Ms Maher said to constitute an alleged abuse of position is nowhere apparent. They say that the par 17 particulars merely raise a series of positions allegedly held by Ms Maher and Mr Gallagher, but do not actually ever identify any conduct on Ms Maher's part that might arguably be characterised as an abuse of her position as state manager of the NNTT.
43 It is also said that the same particulars simply describe Ms Maher's daughter's (Lisa Maher's) employment with FMG, an engagement of MGA/RCD by FMG, WM's engagement of MGA/RCD and Ms Maher's apparent financial gain (apparently as a 100% shareholder of the corporation Sillytown, which in turn is said to have owned all the shares in MGA, and so, presumably, would benefit by a payment of dividends or other distributions to the parent corporation). But the core feature of this imputation concerning an abuse of position is never identified or properly engaged, so it is said.
44 That submission must also be upheld. The defendants have left abuse of position to be inferred, rather than said in explicit terms what the abuse of position was. The par 17 particulars are once again wholly inadequate vis-à-vis raising an arguable defence of justification to the abuse or position imputation concerning Ms Maher under FASC par 6.2 (and its counterparts).
45 I would repeat again the observations made in this matter as to inadequate pleas of justification, in my earlier reasons: see Maher v Nationwide News Pty Ltd [No 3], particularly concerning J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357, under [31] - [32].
Paragraph 19 of FREAD: the defendants' plea of contextual truth to all Ms Maher's imputations
46 Before examining the precise content of FREAD par 19, it is convenient to set out the terms of s 26 of the Defamation Act, that is sought to be engaged under this plea.
47 Section 26 provides:
It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
48 Essentially, Ms Maher's grievance over the par 19 FREAD plea of contextual truth is that the conjoint requirement under par 26(b) as seen above, in terms of no further harm from all the imputations found under FASC pars 6.1, 6.2 and 6.3, is demonstrably not met.
49 I turn to the content of FREAD par 19, which is in the following terms:
To the extent to which The Australian Newspaper article, The Australian On-line article (the NWN publications) conveyed any or all of the imputations of which the first plaintiff complains ('the first plaintiff's imputations'), it also conveyed the following contextual imputation which is substantially true and because of its substantial truth the first plaintiff's imputations do not further harm her reputation:
Ms Maher acted contrary to her obligations as a public servant by setting up a consultancy business to deal with native title matters whilst she held an appointment as State Manager WA of the National Native Title Tribunal.
50 There follow 13 particulars, all of which are more or less equivalent to parts of particulars mostly earlier provided under par 17, as were set out above. Beyond that, however, there is a new subparagraph (m) in these par 19 FREAD particulars that I must set out. Subparagraph (m), is in the following terms:
In the conduct of her role as state manager of the NNTT, the plaintiff embarked upon commercial business activities which would involve her in providing (in contentious native title disputes) consultancy services to one side for which she would receive financial and/or commercial benefits, in breach of s 13(7)(a) and (11)(b) of the Public Service Act 1999 [Cth]. The plaintiff was under an obligation to take reasonable steps to avoid any conflict of interest and by setting up the business in question was in effect taking active steps to create (rather than avoid) a conflict of interest.
51 I observe that subpars (g), (h), (i), (j) and (k) in the par 17 particulars of justification are not imported by reference to the particulars used under par 19 of the FREAD.
52 In Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [59] I canvassed a number of the case authorities concerning pleas of contextual truth in Australia. The cases show there is a need for a differentiating quality in a contextual imputation, when measured against the imputations relied upon by the plaintiff. Le Miere J observed in Ives v The State of Western Australia [No 8] [2013] WASC 277 [85], that a defendant cannot 'expand on the same area of misconduct by pleading a contextual imputation related to the same class of conduct but framed in general terms'.
53 Here the plaintiffs complain that the contextual imputation seen under FREAD par 19 is vague and imprecise.
54 Whatever might be said about that criticism, a far greater structural deficiency is that this is not on its face a contextual imputation that presents as separate from the imputations under pars 6.1, 6.2 and 6.3. Rather, it presents as more of a nuance of the same poison.
55 The legal advisers for Ms Maher also complain the par 19 FREAD contextual imputation is even less serious than her own FASC par 6 imputations, which allege disclosure of confidential information for the benefit of a third party, abuse of position and failure to declare conflicts of interest with FMG.
56 That submission must also be upheld, in a context of an evaluation about showing a potential defence that engages s 26(b) of the Defamation Act and requiring the contextual imputation to be of some moment in terms of gravity - in order to reach a 26(b) outcome, whereby the plaintiff's own imputations would not, because of the substantial truth of the contextual imputation, do any further harm the plaintiff's reputation.
57 As I explained in my reasons in Walsh v Bennetts [2014] WASC 453, using the word 'swamp' may be an infelicitous choice of language, bearing in mind the observations by Hunt J in Hepburn v TCN Channel Nine Pty Ltd [1983] 1 NSWLR 386 to which I refer in Walsh [52] - [63]. Nevertheless, the criteria under s 26(b) must at least be arguably engaged by a contextual imputation. Here, s 26(b) is plainly not engaged.
58 I accept Ms Maher's submission that the FREAD par 19 contextual imputation is actually less serious than her own FASC par 6 imputations, viewed together as her cause of action: see Besser v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 [77] - [80], [89]. On that basis, the defendants' par 19 plea is conceptually defective and should be struck out.
59 Again there will be leave to replead.
60 I now turn to the other plea of contextual truth under FREAD par 20, raised against the par 7.1 imputation, the subject of Mr Gallagher's grievance.
Mr Gallagher: par 20 FREAD - plea of contextual truth concerning FASC imputation 7.1
61 It will be remembered, Mr Gallagher's imputation under 7.1 was that he:
whilst acting as a consultant to Wirlu-murra, sought and obtained confidential information from his partner [ie, Ms Maher] about hearings in the NNTT for the benefit of the Fortescue Metal Group.
62 For reasons akin to those culminating in the assessed deficiency of the contextual truth plea under FREAD par 19, Mr Gallagher's challenge against FREAD par 20, must also be accepted. Nevertheless, and although not attacked by the defendants, I do express my concerns about the longer term viability of imputation 7.1.
63 On my prima facie assessment, par 7.1 combines far too many ingredients with a consequence, that in the end, its ultimate clarity is highly questionable. First, the phrase 'whilst acting as a consultant to Wirlu-murra' looks to be largely surplus narrative. If that phrase is put there to suggest some aspect of disloyalty by Mr Gallagher, whilst acting as a consultant for that organisation, that does not sit comfortably with the alleged alignment between Wirlu-murra and FMG - in terms of their joint support of the future Act determination - a position said to be contrary to the opposition of the Yindjibarndi Aboriginal Corporation (YAC).
64 On my assessment, it is not sufficiently clear overall whether imputation 7.1 is driving at assertions that the publication wrongly suggests Mr Gallagher conducted himself in an unscrupulous fashion, or exploited his partner to obtain confidential information, or is corrupt, or acted as some kind of double agent, or that he acted in an underhand fashion to obtain a benefit for the party or parties engaging his services. That residual uncertainty over the imputation is unsatisfactory.
65 The lack of sufficient clarity in the par 7.1 imputation has probably led, on my assessment, to the defendants' equally unsatisfactory contextual truth response by FREAD par 20:
To the extent to which the NWN Publications conveyed the imputation of which the second plaintiff complains ('the second plaintiff's imputation'), it also conveyed the following contextual imputation which is substantially true and because of its substantial truth the second plaintiff's imputation does not further harm his reputation.
The second plaintiff [ie, Mr Gallagher] aided and abetted the first plaintiff [Ms Maher] in conduct by her which was contrary to her obligations as a public servant.
67 Unique particulars under par 20 which have not otherwise yet been seen, only present as par 20(m), which says:
In his capacity as a consultant to MGA, the second plaintiff [ie, Mr Gallagher]:
(i) conducted a site visit with WM at FMG's Solomon project, comprising sites at Firetail Central, West and Rail Loop (the Sites);
(ii) conducted an ethnographic survey of the Sites;
(iii) consulted with 11 members of the WM;
(iv) authored a report containing results and recommendations favourable to FMG's interests.
68 An early deficiency that can be detected in these particulars is that the asserted obligations of Ms Maher as a public servant are not stated with sufficient clarity.
69 Allied to that, another problem is a total void concerning how at all it is arguably contended Mr Gallagher might have 'aided and abetted' his 'spouse' in her acting contrary to her obligations as a public servant. That remains, as I say, a complete mystery to the reader.
70 There is not found within the particulars to FREAD par 20 any counterpart to the par 19(m) particulars - concerning Ms Maher and provisions of the Public Service Act she is said to have breached (ie, s 13(7)(a) and s 13(11)(b)).
71 Absent any counterpart par 19(m) assertion, the particulars given to FREAD par 20 reinforce the conclusion I have reached concerning a lack of explanation for how it is that Mr Gallagher is asserted to have aided and abetted Ms Maher's breach of her obligations as a public servant. That vital information is completely unstated - not only as regards any conduct of Mr Gallagher that could be argued as aiding and abetting breaches by Ms Maher - but also in terms of a proper specification of what relevant public servant obligations Ms Maher was obliged to meet.
72 Moreover, the legalistic phrase 'aided and abetted' may be familiar to lawyers in a context of criminal law, concerning those who take part in committing a crime without actually doing the act or making the omission which constitutes the offence (see Criminal Code (WA), s 7) or in an assessment of accessorial liability by an individual under s 75B of the Competition and Consumer Act 2010 (Cth) (in pt VI of that Act). But here, an engagement of that phrase, is left as a complete 'blank page', as regards what assistance Mr Gallagher actually gave to Ms Maher.
73 The contextual imputation is too lawyerly in concept. It lacks a clear and precise meaning. Whether this contextual imputation fails the threshold to arguably show a contextual imputation satisfying the work of s 26(b) of the Defamation Act is also doubtful. But the present lack of clarity in the FASC par 7.1 imputation renders a comparison task in terms of arguable levels of reputational harm well nigh impossible.
74 In the end then, par 20 of the FREAD must also be struck out, but again, with leave to replead. My strong suggestion before that happens, however, is that the solicitors for the second plaintiff reformulate FREAD par 7.1, to afford it a greater clarity, to meet the Sungravurethreshold: and see my observations in Maher v Nationwide News Pty Ltd [2013] WASC 254 [27] concerning the decision in Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1.
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