Mickelberg v 6PR Southern Cross Radio Pty Ltd

[2002] WASCA 270

MICKELBERG -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2002] WASCA 270

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2002] WASCA 270
Court:	THE FULL COURT (WA)
Case No:	FUL:151/2001	Heard:	14 JUNE 2002
Coram:	MALCOLM CJ MURRAY J STEYTLER J	Delivered:	26/09/02
No of pages:	22	Judgment Part:	1 of 1
Result:	Appeal allowed
Category:	B
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Parties:	SIMONE MARIE MICKELBERG 6PR SOUTHERN CROSS RADIO PTY LTD PAUL ROBERT MURRAY RICHARD FAIRFAX COURT
Catchwords:	Defamation Appeal Practice and procedure Pleadings Where trial Judge struck out statement of claim and dismissed appellant's action for failing to disclose a reasonable cause of action Radio interview Publication on Internet Whether libel or slander Sufficiency of identification plea Whether imputations contended for capable of arising from words complained of Turns on own facts
Legislation:	Broadcasting Services Act 1992, s 206, s 6
Case References:	Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Hospitals Contribution Fund of Australia v Hunt (1983) 44 ALR 365 Kimberley Downs Pty Ltd v Western Australia, unreported, SCt of WA (Staples M); Library No 6414; 25 August 1986 Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 Niven v Grant (1903) 29 VLR 102 Packard v Transport Trading Agency Co Ltd (1912) 14 WALR 191 Wainer v Rippon [1980] VR 129 Biala Pty Ltd v Mallina Holdings Ltd, unreported; FCt SCt of WA, Library No 7805; 30 August 1989 Briggs v Curtis Quick & Associates, unreported; FCt SCt of WA; Library No 980141; 30 March 1998 Carr v Finance Corporation of Australia Ltd (1980) 147 CLR 246 Cutler v McPhail [1962] 2 QB 292 Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148 Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41­669 Glasheen v Taylor (1949) 23 ALJR 483 Godfrey v Demon Internet Ltd [2001] QB 201 Gutnick v Dow Jones & Co Inc [2001] VSC 305 Hall v Nominal Defendant (1966) 117 CLR 423 House of The King (1936) 55 CLR 499 Hughes v Gales (1995) 14 WAR 434 Latoudis v Casey (1990) 170 CLR 534 Licul v Corney (1976) 180 CLR 213 Little v State of Victoria [1998] 4 VR 596 Minogue v Williams (2000) 60 ALD 366 Monson v Tussauds Ltd [1894] 1 QB 671 National Companies & Securities Commission v Monsoon Nominees Pty Ltd (1991) 9 ACLC 66 Norbis v Norbis (1986) 161 CLR 513 Oshlack v Richmond River Council (1998) 193 CLR 72 Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35 Rindos v Hardwick, unreported; SCt of WA (Ipp J); Library No 940164; 31 March 1994 Sims v Wran [1984] 1 NSWLR 317 Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173 Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40 Wilson v Metaxas [1989] WAR 285

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : MICKELBERG -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2002] WASCA 270 CORAM : MALCOLM CJ

MURRAY J
STEYTLER J

HEARD : 14 JUNE 2002 DELIVERED : 26 SEPTEMBER 2002 FILE NO/S : FUL 151 of 2001 BETWEEN : SIMONE MARIE MICKELBERG

Appellant

AND

6PR SOUTHERN CROSS RADIO PTY LTD
First Respondent

PAUL ROBERT MURRAY
Second Respondent

RICHARD FAIRFAX COURT
Third Respondent

Catchwords:

Defamation - Appeal - Practice and procedure - Pleadings - Where trial Judge struck out statement of claim and dismissed appellant's action for failing to disclose a reasonable cause of action - Radio interview - Publication on Internet - Whether libel or slander - Sufficiency of identification plea - Whether

(Page 2)

imputations contended for capable of arising from words complained of - Turns on own facts

Legislation:

Broadcasting Services Act 1992, s 206, s 6

Result:

Appeal allowed

Category: B

Representation:

Counsel:

Appellant : Mr M L Bennett
First Respondent : Mr S M Davies
Second Respondent : Mr S M Davies
Third Respondent : Mr K J Martin QC & Ms M S Hullett

Solicitors:

Appellant : Bennett & Co
First Respondent : Corrs Chambers Westgarth
Second Respondent : Corrs Chambers Westgarth
Third Respondent : Freehills

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

Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365
Kimberley Downs Pty Ltd v Western Australia, unreported, SCt of WA (Staples M); Library No 6414; 25 August 1986
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Niven v Grant (1903) 29 VLR 102


(Page 3)

Packhard v Transport Trading & Agency Co Ltd (1912) 14 WALR 191
Wainer v Rippon [1980] VR 129

Case(s) also cited:

Biala Pty Ltd v Mallina Holdings Ltd, unreported; FCt SCt of WA, Library No 7805; 30 August 1989
Briggs v Curtis Quick & Associates, unreported; FCt SCt of WA; Library No 980141; 30 March 1998
Carr v Finance Corporation of Australia Ltd (1980) 147 CLR 246
Cutler v McPhail [1962] 2 QB 292
Florida Investments Pty Ltd v Milstern (Holdings) Pty Ltd [1972] WAR 148
Giraffe World Australia Pty Ltd v Australian Competition and Consumer Commission (1999) ATPR 41­669
Glasheen v Taylor (1949) 23 ALJR 483
Godfrey v Demon Internet Ltd [2001] QB 201
Gutnick v Dow Jones & Co Inc [2001] VSC 305
Hall v Nominal Defendant (1966) 117 CLR 423
House of The King (1936) 55 CLR 499
Hughes v Gales (1995) 14 WAR 434
Latoudis v Casey (1990) 170 CLR 534
Licul v Corney (1976) 180 CLR 213
Little v State of Victoria [1998] 4 VR 596
Minogue v Williams (2000) 60 ALD 366
Monson v Tussauds Ltd [1894] 1 QB 671
National Companies & Securities Commission v Monsoon Nominees Pty Ltd (1991) 9 ACLC 66
Norbis v Norbis (1986) 161 CLR 513
Oshlack v Richmond River Council (1998) 193 CLR 72
Port of Melbourne Authority v Anshun Pty Ltd (1980) 147 CLR 35
Rindos v Hardwick, unreported; SCt of WA (Ipp J); Library No 940164; 31 March 1994
Sims v Wran [1984] 1 NSWLR 317
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173
Western Australia v Bond Corporation Holding Ltd (1991) 5 WAR 40
Wilson v Metaxas [1989] WAR 285

(Page 4)

1 MALCOLM CJ: In my opinion, this appeal should be allowed, the order of the learned Judge dated 15 June 2001 by which the appellant's application for leave to re-amend the amended statement of claim in terms of a minute dated 7 May 2001 be dismissed, and the appellant's action be dismissed, should be set aside and in lieu thereof the appellant should have leave to amend in the form of the minute subject to the deletion of par 11A thereof, and subject to any outstanding issues regarding other aspects of the statement of claim which the learned Judge might have found it unnecessary to address together with the question of any further amendments to the statement of claim should be referred to the primary Judge.

2 I also agree with Steytler J that it is unnecessary for this Court to deal with the cross-appeal, as the issue of the costs of the hearing below will have to be revisited, in any event. That issue should be returned to the primary Judge for consideration in the light of the reasons for judgment of this Court.

3 I have reached these conclusions for the reasons to be published by Steytler J with which I am in entire agreement.

4 MURRAY J: I have had the advantage of reading the reasons for decision of Steytler J. They express completely for me, my views about this appeal.

5 I agree that the appeal should be allowed and the decision at first instance should be set aside. The appellant should have leave to amend the statement of claim, as should the first plaintiff, in terms of the minute dated 7 May 2001, amended as they may wish particularly in respect of the allegation made in par 11A and subject always to any strike-out application by the respondents. Their application for leave to re-amend should be remitted to the Judge to deal with any outstanding issues.

6 In my opinion, the cross-appeal should be dismissed. The costs of the proceedings below should be finally dealt with by the Judge when those proceedings are ultimately concluded.

7 STEYTLER J: The appellant and her husband, Mr Peter Mickelberg, are plaintiffs in defamation proceedings brought by them against the respondents. They applied to a Judge of this Court for leave to re-amend their statement of claim in terms of a minute dated 7 May 2001 ("the minute"). Their statement of claim had been the subject of an earlier application for leave to amend and also of an application, brought by the

(Page 5)

respondents, to strike it out. On 13 February 2001 the primary Judge had refused the earlier application for leave to amend. He then ruled that the claim advanced by the appellant failed to disclose a reasonable cause of action and should be struck out, but gave the plaintiffs liberty to replead. They did so, by way of the minute. However, the primary Judge ruled against them once again, on 15 June 2001, and dismissed the application for leave to amend. On this occasion he struck out both the amended statement of claim and the writ of summons, insofar as they related to the appellant. He also dismissed the appellant's action. The appellant appeals against those orders.

8 The first and second respondents have cross-appealed against an additional order, made by the primary Judge, to the effect that the costs of the action to date be reserved, insofar as they are referable to the claim advanced by the appellant.

9 At the hearing of the appeal counsel for the appellant raised the question whether leave to appeal was required. However, an application for leave to appeal has been made to the primary Judge, who ruled that his decision was a final decision and that leave was not required. There being no challenge to that ruling, it is unnecessary to consider the issue further.

The Radio Interview

10 The defamation proceedings arose out of a radio interview of the third respondent, the then Premier of Western Australia, Mr Richard Court, conducted, on 18 April 2000, by the second respondent, Mr Paul Murray. The interview was broadcast by the first respondent ("6PR"), which operates radio station 6PR. The text of the interview, as pleaded in the minute, is as follows:

"'PAUL MURRAY' - PRESENTER:

First I want to raise with you the Mickelberg matter that's been around for most of the last couple of days.

'RICHARD COURT' - WA PREMIER:

Sure.

'MURRAY':

How can members of the police force have any confidence in the parliamentary joint select committee on the Anti Corruption

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Commission when it's headed by a Liberal politician, Derrick Tomlinson, who writes character references for one of the state's most notorious criminals?

'COURT':

Look I think Paul, let's put it in perspective. These people were found guilty of offences and went to gaol and did their time. And when they've come out of gaol … all criminals who come out of gaol want to try and you know, start off a fresh life again. I don't know the circumstances in which these people approach members of parliament and I might say members of parliament from both sides of politics.

But in relation to Cheryl Edwardes she said that the family presented a case where they wanted to start a fresh life and get on with it and she made her decision accordingly. These people weren't aware that there were drug charges …

'MURRAY':

But they know the rest of the Mickelbergs' past. I mean (indistinct) …

'COURT':

Oh we all make … well, that's right Paul. We all … look, I can assure you [I] have a number of people who come to my office who have served a … served their time in gaol and they're trying to get on with their lives, and you know, where you can, you help people that have … you know, they cop the punishment and get on with it.

In the case of the Mickelbergs, if they went to members of parliament and asked for references knowing that they had been committing further offences, you can't … and didn't tell the members of parliament, you can't blame the members of parliament, but it certainly puts the Mickelbergs in a pretty bad light.

I don't know the Mickelbergs, they certainly wouldn't get a reference from me, but in relation to … you know if someone was involved in their personal situation and wanted to give

(Page 7)

them a hand after they'd served their time in prison and I'd probably …

'MURRAY':

But what about Derrick Tomlinson? Look, Derrick Tomlinson is the head of a very sensitive parliamentary committee.

'COURT':

Sure.

'MURRAY':

Oversees the ACC. He writes character references for criminals.

'COURT':

No hang on, no hang on. A person who has been convicted, served their time and then when you come out from prison … you know, you've served your time. You've then got to get on with life and these people apparently wanted to go and start again in New Zealand and some members of parliament provided support for that to occur.

Look, Derrick Tomlinson … you would not find a finer, more upstanding member of parliament and for anyone to infer that he can't carry out his responsibilities without fear or favour has just got it wrong.

'MURRAY':

Well …

'COURT':

But Paul …

'MURRAY':

… but this is okay? This is a good judgment call then, is it?

'COURT':

Well Paul …

(Page 8)

'MURRAY':

If I was a police officer I'd be horrified to have this bloke …

'COURT':

Paul, put it another way.

'MURRAY':

… heading up that committee.

'COURT':

I'll put it another way. If you knew someone that had been to prison, maybe a former politician or someone, they'd done their time and they had rehabilitated themselves and getting on with their life and they wanted some support, would you provide them with support?

'MURRAY':

If they … there's no question of rehabilitation here; these people are recidivist offenders. I mean they offended way before the Perth Mint swindle. Then there was the Yellow Rose of Texas … swindle. We know a lot about them.

'COURT':

Yeh, Paul I … look, I agree with you. Now that we know that they've been involved in drugs and just listening to that there's going to be what … a sentence handed down this morning. Look, I agree with you. I mean … and if these people have gone to members of parliament - which [it] would appear they have - and not told them about those offences, they no longer deserve the time of day. And the members of parliament who were trying to do the right thing in assisting those people in need which we all do from time to time, they're probably quite embarrassed about what took place.

But in our society Paul, when someone's been convicted, they've done their time I'm sure many of us … I know I have on a number of occasions assisted people that have been in prison and want to get on again with their lives. But in the case of the Mickelbergs, look I tend to agree with you Paul. They have got

(Page 9)

an appalling track record. If they were genuinely rehabilitating themselves as individuals and as a family, well and good but it appears that's not the case.

'MURRAY':

Well, what do you say about the behaviour of your two Ministers then? Oh, sorry, one Minister and one very senior MLC.

'COURT':

Well, if those people weren't told the truth, I can't blame them. If they weren't told … if a family went to them and told them a story that they were back on track, wanted to get on with their life when they knew that they were dealing in drugs, well that's simply being dishonest.

'MURRAY':

Premier, Mr Tomlinson wrote a letter to the New Zealand Immigration Minister and he said evidence had been put before a select committee into the police which he chaired which raised serious doubts about police evidence in the Perth Mint swindle case. Now, this wasn't a matter that was reported on by the committee. Is this a proper use of his position by Mr Tomlinson?

'COURT':

Look, I'm not aware of what Derrick's written to … what did you say, the New Zealand Immigration …

'MURRAY':

Immigration Minister.

'COURT':

I'm talking about the principle of you, members of parliament, anyone in our society providing assistance to people who have served their time in gaol. And I think as a society when people have you know been caught they've done their time, they're trying to get back on track again, that's the principle I'm talking about.

(Page 10)

I … in relation to the Mickelbergs Paul, I'd tend to agree with you; that their track record has not been good and certainly this latest incident … if they've gone and told members of parliament they're back on track when they know that they've been involved with drugs, that is totally unacceptable and those people shouldn't be given the time of day.

'MURRAY':

Well, you said you know, in the paper yesterday that they'd deceived these two members of the Liberal Party.

'COURT':

Well they have, yeah.

'MURRAY':

Well I would have thought that you know that was a bit rich you know … by being surprised that the Mickelbergs would deceive anyone. I mean that's … I think the members of your party need to be more wary about their dealings don't they with people like this.

'COURT':

Well Paul, in our society you do the time, you come out and you've got a chance to get on with your life. You've always got to carry the burden of the fact that you've committed an offence and you've been treated accordingly. In this case these people have again been deceitful and they'll get their just desserts."

The Issues

11 The plaintiffs plead, in the minute, that the interview was broadcast live as part of the "Paul Murray" programme broadcast every weekday morning on radio station 6PR. They also plead that it was simultaneously "further broadcast" by 6PR "making or causing the Interview to be made available on the Internet" by way of the World Wide Web, the Web site access code being 6PR.com.au. They allege that Mr Court knew or expected, at the time he participated in the interview, that the interview would be further broadcast by being or being caused to be made available on the Internet.

(Page 11)

12 The appellant claims to have been defamed by what was said in the course of the interview. Paragraphs 9, 10A, 11A and 11B of the minute (in which the appellant is described as "the second plaintiff" and Mr Peter Mickelberg as "the first plaintiff") read as follows:

"9 The Words were by innuendo understood to refer to the second plaintiff.

Particulars of Innuendo
(a) the Words taken as a whole refer to the Mickelberg family;
(b) that [sic] the second plaintiff is and was at all material times the first plaintiff's wife and has lobbied members of the Western Australian Liberal Party with respect to the first plaintiff's and Raymond John Mickelberg's application for residency in New Zealand which received wide publicity and is widely known in the Western Australian community alternatively to readers of 'The West Australian' newspaper and to audiences of news broadcasts made on radio and television in Western Australia during or about April 2000:

(i) The 'West Australian' newspaper published reports on 15 and 18 April 2000 that the second plaintiff had lobbied Cheryl Edwardes the Minister for the Environment and Labour Relations with reference to an application by her husband the first plaintiff for residency in New Zealand.

(ii) A Channel 10 television news broadcast on 15 April 2000 identified the second plaintiff as the first plaintiff's wife and the person who had so lobbied Cheryl Edwardes.

10 …

10A The verbal statements made by the second defendant and forming part of the Words by innuendo meant or were understood to mean that:

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(a) the second plaintiff acted deceitfully in the course of asking members of [the] Western Australian Liberal Party for a reference for the first plaintiff and Raymond John Mickelberg with respect to an application for residency in New Zealand;

(b) the second plaintiff has a history of deceitful behaviour.

Particulars of Innuendo

The second plaintiff repeats the particulars to paragraph 9 hereof.

11 …

11A In their ordinary and natural meaning the verbal statements made by the third defendant and forming part of the Words meant and/or were understood to mean that:

(a) the second plaintiff has deceived members of the Western Australian Liberal Party in asking for a reference for the first plaintiff and Raymond John Mickelberg in respect to an application for residency in New Zealand;

(b) the second plaintiff has a history of deceitful behaviour;

(c) the second plaintiff was dealing in illegal drugs.

11B Alternatively to paragraph 11A hereof the verbal statements made by the third defendant and forming part of the Words by innuendo meant or were understood to mean that:

(a) the second plaintiff has deceived members of the Western Australian Liberal Party in asking for a reference for the first plaintiff and Raymond John Mickelberg in respect to an application for residence in New Zealand;

(b) the second plaintiff has a history of deceitful behaviour;

(Page 13)

(c) the second plaintiff was dealing in illegal drugs."

13 Then, in par 12, the plaintiffs plead that, by reason of the publications, they have been injured in their reputation and have suffered loss and damage. Both plaintiffs claim aggravated damages on various grounds pleaded in pars 13, 13A and 13B of the minute.

14 The respondents contended, before the primary Judge, that the pleas relating to the cause of action based upon publication on the Internet, the appellant's plea that the words complained of were by innuendo understood to refer to her and the plea that the plaintiffs were entitled to aggravated damages were unsustainable. They also contended that none of the pleaded imputations was capable of arising from the words used in the course of the interview.

The Findings Below

15 The primary Judge upheld the first of those contentions, so far as the appellant's claim was concerned. He also upheld the second and fourth contentions. That made it unnecessary for him to consider the third contention.

16 As to the first contention, that relating to publication on the Internet, the primary Judge ruled that, because the publication on the Internet was by sound alone and was not accompanied by any text, it amounted to a slander. That, he said, was not altered by s 206 of the Broadcasting Services Act 1992 ("the Act") which provides that, for the purposes of the law of defamation, the broadcasting or datacasting (although the Act did not, at the time of the interview, include a reference to datacasting) of matter is taken to be publication of the matter in a permanent form. That was so, he said, because publication on the Internet does not fall within the definition of "broadcasting service" in s 6 of the Act (there being no definition of "broadcast" or "broadcasting" in that Act). The expression "broadcasting service" is defined as meaning, unless the contrary intention appears:

"Broadcasting service means a service that delivers television programs or radio programs to persons having equipment appropriate for receiving that service, whether the delivery uses the radio frequency spectrum, cable, optical fibre, satellite or any other means or a combination of those means, but does not include:

(Page 14)

(a) a service (including a teletext service) that provides no more than data, or no more than text (with or without associated still images); or

(b) a service that makes programs available on demand on a point-to-point basis, including a dial-up service; or

(c) a service, or a class of services, that the Minister determines, by notice in the Gazette, not to fall within this definition."

17 His Honour referred, in this last respect, to a determination dated 12 September 2000 (after the publication of the interview) by the Minister for Communications, made pursuant to s 6(1) of the Act, to the effect that "a service that makes available television programmes or radio programmes using the Internet, other than a service that delivers television programmes or radio programmes using the broadcasting services bands" is not to be a "broadcasting service" for the purposes of the Act. Counsel for the respondents had contended that, although this determination was made after publication of the allegedly defamatory material, it provided an indication of how a publication on an Internet Web site should be regarded for the purposes of the Act.

18 The primary Judge also referred to the Macquarie Dictionary definition of "broadcast" which, he said, describes the verb as meaning "to send (messages, speeches, music, etcetera) by radio". He also referred to, and appeared to accept, what has been said in an article, "Internet Television and Radio Services - The Streaming Controversy", published in (2000) Communications Law Bulletin, Vol 19, page 9. The author of that article, Raani Costelloe said, at page 11:

"… [A]udio-visual content delivered or made available over the Internet has until recently been thought to fall outside the definition of broadcasting service because of the dial-up and point-to-point nature of the Internet. That is, most Internet users dial-up to access a server and receive the content through a dedicated line between the user and the server. Conversely, broadcasting services are point-to-multipoint in nature, with a broadcaster transmitting its service in real time to a multitude of viewers or listeners with television or radio sets.

19 The primary Judge went on to say that the author of that article contended (and his Honour seemingly accepted this contention) that

(Page 15)

television and radio services accessed by means of the Internet could arguably be regarded as broadcasting services if they were delivered over the broadcasting services bands which are part of the radio frequency spectrum allocated by the Australian Broadcasting Authority to broadcasting and datacasting licensees, but that they were not broadcasting services if they were delivered outside the broadcasting services bands.

20 The primary Judge next said that, once having concluded that the publication on the Internet amounted to a slander, rather than a libel, it followed that the claim in that respect should be struck out as not disclosing a reasonable cause of action because there was no plea of special damage and nor did the alleged slander fall into one of the special categories in which it is actionable per se. He referred, in this last respect, to Fleming: The Law of Torts (9th ed), pp 605 - 607, where four such categories are identified, namely, where the words complained of impute the commission of a crime, in the case of the imputation of contagious disease, where allegations are made of unfitness for a profession, trade or office, or where there is an imputation of unchastity.

21 His Honour then turned to the second contention, being that to the effect that the plea in par 9 of the minute is unsustainable.

22 He said, firstly, that, having carefully reviewed the transcript of the interview, he doubted that a listener who knew that the appellant had played some part in attempting to obtain the references would conclude that the essential issue under discussion in the interview was "the obtaining of the reference" in respect of Mr Peter Mickelberg's application for residency in New Zealand. Rather, he said, the listener would have understood "that the interview was concerned essentially with those members of the Mickelberg family who had criminal convictions and in respect of whom the references were to be obtained". He said it was them "who were under attack and the subject of the allegedly defamatory imputations". His Honour went on to say:

"[49] I am obliged to repeat what I said at par 42 of the earlier decision. The interview considered in its entirety, was confined to a general issue as to whether it was proper for individuals with a prior criminal record and with some possible ongoing involvement in criminal proceedings to make approaches to parliamentarians and for parliamentarians to act upon those approaches. I therefore consider that the words, reasonably understood,

(Page 16)

do not refer to a class of persons which include the second plaintiff.

[50] This summation applies with equal force to those listeners who had special knowledge that the second plaintiff had played some role in the approaches because, in my view, the ordinary, reasonable person would conclude that she was simply acting as an agent or instrument on behalf of those members of the Mickelberg family who had criminal convictions and needed the references. The second plaintiff was not a member of such a group and was therefore not identified by the words used in the course of the interview."

23 The primary Judge then went on to conclude that the minute did not disclose a reasonable cause of action by the appellant against the respondents. He also reached the conclusion that the difficulties which he had addressed were "fundamental and insurmountable" and that there was nothing to be gained by allowing the appellant to replead.

24 He added that, although it was unnecessary for him to deal with the further contention raised by the respondents to the effect that the appellant had not mounted an arguable case that the meanings and imputations contended for concerning her arose from the words complained of, he considered that that contention was sound.

25 He then made the orders to which I have referred, including that in respect of costs (the costs order having been made after the parties had had the opportunity to make submissions in that respect).

The Grounds of Appeal and Cross-Appeal

26 In her grounds of appeal, the appellant contends, firstly, that the primary Judge erred in holding that her "innuendo plea" in pars 9(b) and 10A of the minute failed to plead an arguable cause of action and that his Honour should have held that the pleading disclosed an arguable case that listeners possessed of the special knowledge pleaded by the appellant would understand the interview to be referring to her (grounds 1 to 4). She also contends, in the alternative, that she should have been given an opportunity to replead her case (ground 5). Finally, she contends, by grounds 6 and 7, that:

(Page 17)

"6. Further, the Learned Trial Judge erred in striking out paragraphs 5 and 6 of the Appellant's pleading (as to the internet publication) and refusing leave to the Appellant to re-plead her cases for [sic] the internet publication.

7. The Learned Trial Judge should have held that:

(a) the internet republication was a libel;


(b) alternatively, in so far as the internet republication was a slander, the innuendo conveyed in respect of the Appellant was as to the commission of a criminal offence and thereby actionable per se;

(c) alternatively, the internet publication constituted republication by the Respondents (Defendants) of the libel (being the radio interview itself) for which the Respondents would be liable having each authorised that republication."

27 The first and second respondents, in their cross-appeal, contend that the primary Judge erred in the exercise of his discretion in failing to award costs in their favour. For reasons which will later appear, it is unnecessary to say anything more about the grounds of cross-appeal.

Applicable Principles

28 While the applicable principles are well known, it is as well to repeat some of the more pertinent of them.

29 Generally speaking, a statement of claim should not be struck out unless the propositions advanced are really not arguable (see Packhard v Transport Trading & Agency Co Ltd (1912) 14 WALR 191 at 195) and great care must be exercised to ensure that the plaintiff is not improperly deprived of her opportunity for the trial of her case by the appointed tribunal (General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 130), although argument, even extensive argument, may be necessary to demonstrate that the plaintiff's case is so clearly untenable that it cannot succeed (General Steel Industries, above, ibid). On an application to strike out, the facts alleged in the statement of claim should be accepted as true (Niven v Grant (1903) 29 VLR 102 at 106) and, as a general rule, a plaintiff is entitled as of right to have her

(Page 18)

case heard, to have the facts found and then to argue the question of law as it arises before the trial Judge upon the facts as found. The pleading should only be struck out where it can be seen from the outset that, however the facts might be found, there is no basis for the legal conclusion contended for by the plaintiff (see Dalgety Australia Ltd v Rubin, unreported; FCt SCt of WA; Library No 5485; 24 August 1984). The Court at first instance should be careful not to risk stifling the development of the law by the summary rejection of a claim which might raise the possibility that, as the law develops, a cause of action will be found to lie (Hospitals Contribution Fund of Australia v Hunt (1982) 44 ALR 365 at 373). See also, generally in respect of the aforegoing, Kimberley Downs Pty Ltd v Western Australia, unreported, SCt of WA (Staples M); Library No 6414; 25 August 1986 and Seaman: Civil Procedure Western Australia par 20.19.6.

30 Imputations in defamation actions will only be struck out upon the ground that the words complained of are incapable of supporting them if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless (Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675).

Identification of the Appellant and the Defamatory Imputations

31 I propose, next, to deal with the issue of identification of the appellant and also with that of whether the imputations contended for by her are capable of arising from the words complained of.

32 I have set out, above, the plea made by the appellant in par 9 of the minute. Counsel for the appellant has since indicated that, if he should be given leave to do that, he proposes to amend the particulars under par 9 by altering the numbering of those paragraphs. He proposes to delete the numbers (i) and (ii) and to substitute for them the letters (c) and (d) in order to make plain that the four particulars there pleaded are distinctly relied upon. In essence, the appellant relies upon extrinsic knowledge, on the part of listeners to the radio programme, of the fact that she is married to Peter Mickelberg and of the fact that she had lobbied members of the Western Australian Liberal Party, including Cheryl Edwardes, the then Minister for the Environment and Labour Relations, with respect to her husband's, and Raymond Mickelberg's, application for residency in New Zealand. Once proof of that alleged extrinsic knowledge is assumed, as it should be for the purposes of an application of this kind, then it seems to me undoubtedly to be arguable that the appellant might reasonably have

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been identified as one of "the family" who "presented a case" to Cheryl Edwardes and one of "these people" who had gone to members of Parliament, asking for references.

33 The primary Judge fell into error, in my respectful opinion, in concluding that the interview, considered in its entirety, was confined to a general issue as to whether it was proper for individuals with a prior criminal record and with some possible ongoing involvement in criminal proceedings to make approaches to parliamentarians and for parliamentarians to act upon those approaches. The interview also addresses what is said to have been improper conduct in seeking a reference in circumstances in which the fact of recent offending was not disclosed. In that context, Mr Court is quoted as saying that "the family presented a case" to Cheryl Edwardes who was not aware that "there were drug charges". Similarly, Mr Court is quoted as saying, later in the interview, that "if these people have gone to members of parliament - which [it] would appear they have - and not told them about those offences [being a reference to drug offences], they no longer deserve the time of day". He is also alleged to have said that, "If they were genuinely rehabilitating themselves as individuals and as a family, well and good but it appears that's not the case." Still later, Mr Court is alleged to have referred to the "family" in saying that, "If a family went to them and told them a story that they were back on track, wanted to get on with their life when they knew that they were dealing in drugs, well that's simply being dishonest."

34 While it is, no doubt, true, as counsel for the respondents pointed out, that the ordinary listener might identify a reference to "the Mickelbergs", in the context of a history of imprisonment for what was said to be prior criminal behaviour, as being one to the Mickelberg brothers (they being the only members of the Mickelberg family who have attracted notoriety in that respect), the fact is that the references to which I have referred could have been, but were not, limited to "the Mickelbergs". The references to "the family" at least arguably connote something more than merely the Mickelberg brothers, particularly against the pleaded background of extrinsic knowledge of the fact that the appellant had been one of those who had approached members of Parliament. The same is true, in my opinion, of the phrase "these people", when understood in that context.

35 It also seems to me to be arguable that the imputations pleaded in par 10A and 11B of the minute arise from the words complained of.

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36 The first of those imputations is that to the effect that the appellant acted deceitfully in the course of asking members of the Western Australian Liberal Party for a reference for Mr Peter Mickelberg and Mr Raymond Mickelberg in respect of an application for residency in New Zealand. Once it is accepted that the appellant was arguably identified by the words to which I have referred, then that imputation arguably arises, in my opinion, from those same words and in particular from the references to "the family" or "these people" presenting a case to, or going to, members of Parliament without disclosing the fact of the drug charges and in that way "being dishonest" or "deceitful". A person does not, herself, have to be the subject of drug charges in order to be dishonest or deceitful in not disclosing the fact of their existence, in a context in which the dishonesty or deceit is said to have arisen in the course of an approach, by a family, for references in respect of one or more of its members.

37 While it may be more difficult to draw that imputation from what was said by the second respondent, I have come to the conclusion that it arguably arises, in the whole context of the interview, from the second respondent's comment, made after Mr Court had referred to the fact of "a family" being dishonest, and two members of the Liberal Party having been deceived, that it was "a bit rich … by being surprised that the Mickelbergs would deceive anyone" and that the members of the Liberal Party "need to be more wary about their dealings … with people like this".

38 Once these propositions are accepted, then it follows, in my opinion, also that the second imputation, being that to the effect that the appellant has a history of deceitful behaviour, arguably arises from the concluding words of Mr Court to the effect that "these people have again been deceitful". The use of the word "again" implies that they had previously been deceitful. While the imputation may, once again, be more difficult to draw from what was said by the second respondent, Mr Murray, it seems to me, once again, arguably to arise from his comments, made in the context to which I have referred, that it was "a bit rich" for anyone to be "surprised that the Mickelbergs would deceive anyone".

39 The third imputation (pleaded only in respect of the words used by Mr Court), to the effect that the appellant had been dealing in illegal drugs, also seems to me to be arguable even if, as counsel for the appellant volunteered, it might have been better pleaded. Mr Court, in the course of the interview, refers to the fact that "they've" been involved in drugs, without identifying the persons to whom he is referring. When that reference is taken together with the later reference to the effect that it

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appears not to be the case that the "family" is "genuinely rehabilitating themselves" and the reference to the fact that the "family" told a story that they "were back on track … when they knew that they were dealing in drugs" or, as it was later put, had "been involved with drugs", there is the prospect that the ordinary listener (and there may have been some listeners who did not know who had been charged with the drug offences) would understand the reference to be to the whole of the family rather than only to the Mickelberg brothers.

40 That leaves the imputations pleaded in par 11A, which rely on the ordinary and natural meaning of the words used, without any resort to knowledge, on the part of the listeners, which would lead them to identify the appellant as one of "the family" or "these people". It seems to me that, without resort to any extrinsic knowledge of the kind pleaded in pars 10A and 11B, the ordinary listener could not have understood the words to which I have referred as encompassing a reference to the appellant. They would, on that assumption, not even have known that she was the wife of Mr Peter Mickelberg. In those circumstances it seems to me that the amendments proposed in par 11A were rightly disallowed. In any event, as was pointed out by counsel for the third respondent, the grounds of appeal appear to take no issue with the primary Judge's finding in that respect.

Publication on the Internet

41 That brings me, next, to the issue of publication on the Internet.

42 With due respect to the parties, this seems to me to be something of a storm in a teacup, in the context of what took place in this case. We were told by counsel for 6PR, without objection by counsel for the appellant, that no more than 32 people at any one time could have heard the interview by means of the Internet. It might be assumed that many more people than that heard the interview on the radio. Consequently, the issue appears to have very little significance so far as any possible award of damages is concerned.

43 That said, it does seem to me that if the appellant is determined to air the issue at trial, she should be given the opportunity of doing so.

44 It is probable that, absent legislative intervention, the spoken words would amount to a slander, and not a libel (cf Wainer v Rippon [1980] VR 129). That is because, as I have earlier mentioned, only the sound, and not the text of the interview, was obtainable by means of the Internet.

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Consequently, the issue, as it was argued before us, turns upon the question whether what took place was a "broadcasting … of matter" for the purposes of s 206 of the Act. The answer to that question depends, in turn, not only upon the meaning of the word "broadcasting", but also upon the factual question whether or not what was done amounts to a "broadcasting" on the proper construction of s 206. It became apparent, during the course of submissions by the parties, that there was no real agreement as regards the manner in which, or the means by which, the interview was published on the Internet. Indeed, counsel for the parties confessed to some degree of ignorance in that respect and there is, at this stage, no evidence to shed any light upon the question. Accordingly, whatever may be the proper construction of the word "broadcasting", the question whether what was done falls within the meaning of that word can only be determined after evidence is led as to precisely what was done. That being so, it seems to me that the issue should be left over for trial. I should add, in any event, that the imputation, pleaded against the third respondent, to the effect that the appellant was dealing in illegal drugs is one which is actionable per se, even if it is a slander.

Conclusion

45 It follows that I would allow the appeal, set aside the decision of the primary Judge, and give to the appellant leave to amend in the form of the minute, subject to the deletion of par 11A thereof and subject, also, to any outstanding complaints which the primary Judge might have found it unnecessary to address. The question of any further amendments (and some were foreshadowed to us) can be taken up with the primary Judge.

46 It follows, from this conclusion, that it is unnecessary to address the cross-appeal, as the issue of the costs of the hearing below will, in any event, have to be revisited. It seems to me that the appropriate order in that respect is that that issue should be returned to the primary Judge for consideration in the light of these reasons.