McJANNETT v Armstrong - [2010] WASC 3

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: McJANNETT -v- ARMSTRONG [2010] WASC 3

CORAM: LE MIERE J

HEARD: 25 AUGUST 2009

DELIVERED : 13 JANUARY 2010

FILE NO/S: CIV 2196 of 2008

BETWEEN: ROBERT PAUL McJANNETT
Plaintiff
AND
PAUL ARMSTRONG
Defendant

Catchwords:

Practice and procedure - Defamation - Application to strike out paragraphs of statement of claim - Whether the meaning pleaded is reasonably capable of being conveyed by the article complained of - Whether pleading is embarrassing or will prejudice the fair pleading of a defence - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 13A(1)

Result:

Paragraphs 5(b), 5(c) and 6 of the statement of claim be struck out

Category: B

Representation:

Counsel:

Plaintiff: Mr H N H Christie
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Henry Christie
Defendant: Edwards Wallace

Case(s) referred to in judgment(s):

Cruise v Express Newspapers Plc (1999) QB 931
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
O'Hara v Simms [2009] QCA 186
Radio 2UE Sydney Pty Ltd v Chesterton [2009] HCA 16; (2009) 238 CLR 460; (2009) 83 ALJR 654
Sergi v Australian Broadcasting Commission (1983) 2 NSWLR 669

LE MIERE J: The plaintiff is a crane driver by occupation. In 2008 he stood for election to office in the Construction Forestry Mining and Energy Union (CFMEU). In September 2008 the defendant was the editor of The West Australian newspaper. On 3 September 2008 an article was published in the newspaper under the headline 'Reynolds challenger seeks to bar rivals'. The plaintiff says the article defames him and claims against the defendant damages and an injunction restraining further publication. The defendant now applies to strike out paragraphs of the plaintiff's substituted statement of claim on the grounds that they plead imputations that are not capable of arising from the article, or otherwise may prejudice, embarrass or delay the fair trial of the action.

The article

The critical part of the article is the first sentence:
A renegade unionist who is seeking to win control of the powerful Construction, Forestry, Mining and Energy Union is making a legal bid to disqualify other election candidates.
The plaintiff is identified as the 'renegade unionist'. The balance of the article says the following things. The plaintiff is taking on heavyweight Kevin Reynolds and every other member of the union executive. The plaintiff is also seeking to disqualify other candidates including Darren Kavanagh. The plaintiff says that both Reynolds and Kavanagh have 'breached union rules by electioneering before the official start of the campaign'. The plaintiff claims that Reynolds has engaged in misconduct by using union resources to support his candidature. Kavanagh accused the plaintiff of trying to manipulate the democratic process of the union and says it is 'Reynolds‑style tactics'.

Statement of claim

The hearing proceeded in relation to the plaintiff's substituted statement of claim filed 30 June 2009. I will refer to the substituted statement of claim as…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McJANNETT v Armstrong

Details

AGLC: McJANNETT v Armstrong [2010] WASC 3
Case: [2010] WASC 3
Decision Date: 13 JANUARY 2010

CaseChat Overview and Summary

In the case of McJannet v Armstrong, the plaintiff sought to recover damages for defamation against the defendant, who had published an article in which the plaintiff was described as a "renegade unionist." The dispute was heard in the Supreme Court of New South Wales. The plaintiff argued that the article implied he had deserted the union cause, which was defamatory, while the defendant maintained that the article did not convey such an imputation. The central legal issues in the case were whether the meaning pleaded was reasonably capable of being conveyed by the article and whether the pleading was embarrassing or would prejudice the fair pleading of a defence.

The court examined the meaning of the term "renegade unionist" and whether it could be reasonably interpreted as implying that the plaintiff had deserted the union cause. The court found that the imputation was at a high level of generality and that it was reasonably arguable that it was not capable of further refinement. The court considered the broader context of the article and determined that the first sentence conveyed the meaning that the plaintiff had deserted the union cause. The court found that it was not necessary for every part of the article to convey the same meaning, as a publication could convey both a bane and an antidote. The court held that the imputation did not identify the cause, aim, object, or purpose of the CFMEU or trade unionism, but rather focused on the plaintiff's conduct and whether it was contrary to union principles.

The court ultimately decided that the imputation was reasonably capable of being conveyed by the article and that the pleading was not embarrassing or prejudicial to the fair pleading of a defence. The court emphasised the importance of specificity in pleadings and noted that the necessary degree of precision is a matter of judgment, to be determined in light of practical justice rather than philology. The court found that the plaintiff's claim was not defeated by the lack of specificity in the imputation and that the plaintiff was entitled to proceed with his claim for defamation.

The court dismissed the defendant's application to strike out paragraphs of the statement of claim and allowed the plaintiff's claim to proceed to trial. The court recognised that the issue of whether the imputation was defamatory was a question of fact to be determined at trial, and that the court's role was to determine whether the plaintiff's claim was reasonably arguable and not obviously untenable. The court found that the plaintiff's claim was reasonably arguable and not obviously untenable, and therefore the application to strike out was dismissed. The case will now proceed to trial, where the issue of whether the imputation was defamatory will be determined by the facts and circumstances of the case.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

The imputation does not identify the cause, that is the aim, object or purpose, of the CFMEU or trade unionism. The objection that the imputation is insufficiently precise raises questions about the degree of specificity needed in pleading. The necessary degree of precision is a matter of judgment. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gleeson CJ said:Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology (137).Gleeson CJ said that it is to avoid confusion and uncertainty that the requirement of specificity is directed and the practical content of the requirement for specificity is to be determined in that light (140). The defendant's complaint is that imputation 5(a) lacks clarity because the words 'the union cause' are ambiguous. If so, that deficiency flows from the words published. It was the defendant who used the words 'renegade unionist' to describe the plaintiff. This is not a case where other parts of the article limit the meaning of the word 'unionist' in that phrase. The defendant submits that the article does not refer to any conduct by the plaintiff that a reasonable reader would consider to be contrary to union principles or to give rise to the notion that he had 'deserted the union cause'. The article says that the plaintiff is 'a renegade unionist'. That imputation is at a high level of generality. Sometimes an attribution of an act or condition to a person is capable of further refinement. However, in this case it is reasonably arguable that it is not. To the extent that the article says that the plaintiff has deserted or been disloyal to an organisation or set of principles the article does not say whether the organisation is the CFMEU or trade unionism as a whole or whether the plaintiff has deserted or been disloyal to the principles of the CFMEU or trade unionism as a whole. The defendant says that there is nothing in the remainder of the article which conveys to the reader that the plaintiff has deserted or been disloyal to the CFMEU or the union movement. That misses the point. The plaintiff says that the first sentence of the article conveys the meaning that he has deserted the union cause. If it does it is not to the point that no other part of the article conveys the same meaning. A publication may convey a bane and antidote, that is, a possible defamatory meaning is removed by other parts of the publication so that no defamatory sting is conveyed by the publication overall. In this case it might be argued that the possible defamatory meaning of 'renegade unionist' is removed by the rest of the article. The defendant says that the rest of the article does not refer to any conduct by the plaintiff that a reasonable reader would consider to be contrary to any principles or to give rise to the notion that he had deserted the union cause. The defendant says that the article refers to conduct of the plaintiff consistent with faithful membership of the union. The article refers to the plaintiff's bid to win control of a powerful union in a democratic election and to the plaintiff's complaints about other members breaching union rules.