Mickelberg v 6PR Southern Cross Radio Pty Ltd - [2001] WASC 150

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MICKELBERG & ANOR -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2001] WASC 150

CORAM: HASLUCK J

HEARD: 21 MAY 2001

DELIVERED : 15 JUNE 2001

FILE NO/S: CIV 2235 of 2000

BETWEEN: PETER MICKELBERG
First Plaintiff
SIMONE MARIE MICKELBERG
Second Plaintiff
AND
6PR SOUTHERN CROSS RADIO PTY LTD
First Defendant
PAUL ROBERT MURRAY
Second Defendant
RICHARD FAIRFAX COURT
Third Defendant

Catchwords:

Defamation - Pleadings - Application for leave to amend claim - Publication on Internet - Whether libel or slander - Meaning of "broadcast" - Sufficiency of identification plea - Aggravated and exemplary damages

Legislation:

Broadcasting Services Act 1992, s 206

Result:

Application for leave to amend claim refused

Representation:

Counsel:

First Plaintiff                :     In person
Second Plaintiff            :     In person
First Defendant             :     Mr S M Davies
Second Defendant         :     Mr S M Davies
Third Defendant           :     Mr W S Martin QC

Solicitors:

First Plaintiff                :     In person
Second Plaintiff            :     In person
First Defendant             :     Corrs Chambers Westgarth
Second Defendant         :     Corrs Chambers Westgarth
Third Defendant           :     Freehills

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

Barnes & Co Ltd v Sharpe (1910) 11 CLR 462
Gray v Jones [1939] 1 All ER 798
Gumina v Williams (No 1) (1990) 3 WAR 342
Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 33
Vitale & Ors v Bednall [2000] WASC 207

Case(s) also cited:

Cubby Inc v Compuserve Inc (1991) 776 F. Supp 135
Curran v The Herald & Weekly Times Ltd (1993) A Def R 51-090
Jones v Amalgamated Television Services Pty Ltd (1991) 23 NSWLR 364
Keays v Murdoch Magazines (UK) Ltd [1991] 1 WLR 1184
Morgan v Odhams Press Ltd & Anor [1971] 2 All ER 1156
Pullman v Walter Hill & Co Ltd [1891] 1 QB 524
Rajski v Powell (1987) 11 NSWLR 522
Rindos v Hardwick, unreported; SCt of WA (Ipp J); 31 March 1994; Library No 940164
Savvas v TCN Channel Nine Pty Ltd (1987) A Def R 50-020
Toomey v Mirror Newspapers Ltd (1985) 1 NSWLR 173

HASLUCK J: This is an application made by the first plaintiff, Peter Mickelberg, and the second plaintiff, Simone Marie Mickelberg, to reamend their statement of claim in this matter in terms of a minute bearing 7 May 2001. Some comparatively small amendments were made to the minute at the hearing. I will henceforth refer to the minute dated 7 May 2001 as amended as the May minute of proposed claim.
The plaintiffs' statement of claim had been the subject of an earlier application for leave to amend and related application to strike brought out by the defendants and it is therefore desirable that I should begin by looking briefly at the procedural history of the matter before turning to the issues presently before me.
The plaintiffs seek relief in respect of words that are alleged to be defamatory uttered in a radio interview between the second defendant, Paul Murray, and the third defendant, the former Premier of the State of Western Australia, Richard Court. The interview was broadcast by the first defendant, 6PR radio station, on or about 18 April 2000, in Perth.
The radio interview was conducted by Mr Murray, who is a presenter employed by 6PR. The third defendant was an invited guest on Mr Murray's radio programme.
The writ of summons in this matter was issued on 14 September 2000, bearing an indorsement of claim. The plaintiffs filed and served a statement of claim in due course and subsequently applied for leave to amend the statement of claim in terms of a minute dated 13 November 2000. This minute was brought before the court at a hearing before me on 15 December 2000 with the related application to strike out mentioned earlier. For ease of reference, I will call this the November minute.
On 13 February 2001, I handed down written reasons in response to the plaintiffs' application for leave to amend in terms of the November minute: Mickelberg & Anor v 6PR Southern Cross Radio Pty Ltd & Ors [2001] WASC 33.
In the February reasons, I set out at some length the tenor of the broadcast and the principles of law bearing upon the applications before me. I will not repeat my observations and will adopt the summary given on that occasion for the purpose of these reasons. Suffice it to say, that leave to amend should not be allowed if it is apparent that the proposed amendment could be struck out as failing to disclose a reasonable cause of action or if it is embarrassing or likely to prejudice, embarrass or delay the fair trial of the action.
I note also from the summary of principles previously given that whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law. An imputation contended for by a plaintiff will be struck out at this stage of the proceedings if it is untenable or manifestly groundless.
The second defendant commenced the interview by saying that he wanted to raise with Mr Court "the Mickelberg matter that's been around for most of the last couple of days". Broadly described, the exchanges comprising the interview revealed that some years ago certain members of the Mickelberg family had been convicted of criminal offences arising from events known as the Perth Mint swindle and the Yellow Rose of Texas swindle. More recently, references had been obtained from some local parliamentarians to be used in support of an application by certain members of the Mickelberg family to migrate to New Zealand. The authors of the references were possibly not aware that some further and more recent charges had been brought before the courts concerning a member of the Mickelberg family.
The November minute included a par 5A to the effect that, immediately prior to the interview, a 6PR reporter said that in the courts Raymond Mickelberg faces sentencing over cannabis charges this morning, these words being called "the introductory words".
I noted at par 34 of the February reasons that one of the principal challenges to the November minute was the submission that the claim disclosed no reasonable cause of action in respect of the second plaintiff, Simone Mickelberg, because the words complained of, would not convey to the mind of the ordinary, reasonable person, that the second plaintiff, who was not identified by name, did not fall within the class of persons being referred to.
I noted that in the November minute, the plaintiffs did not expressly purport to advance a plea of defamation by way of innuendo, but, rather, they sought to rely upon the inferential rule as to identification; that is to say, the notion that where there has been a controversy in the media, an inference will arise that the facts are known sufficiently widely for some persons to have knowledge of the facts establishing a connection between the plaintiff and the words complained of.
I concluded that the words complained of were essentially concerned with those members of the Mickelberg family, or bearing the Mickelberg name, who had a criminal record or had been involved in criminal proceedings.
I said further at par 39 of the February reasons that even if it be proved that there were certain listeners who knew that the second plaintiff was a member of the Mickelberg family (by virtue of her marriage to the first plaintiff), and that she had been involved in approaches to parliamentarians concerning the proposed move to New Zealand, the reasonable listener would not be likely to conclude that the second plaintiff was under attack because the words complained of were referring only to members of the Mickelberg family with a criminal record. The second plaintiff was not known to have had such a record and did not, in fact, have a criminal past.
I went on to say at par 42 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. I held that the words, reasonably understood, did not refer to a class of persons which included the second plaintiff and I therefore proceeded to strike out the claim advanced by the second plaintiff as failing to disclose a reasonable cause of action, but with leave to replead.
The May minute of proposed claim presently before me represents the outcome of the repleading. It will not be necessary to look at the full particularity of all the amendments. However, looked at in overview, one notices that the reference to the introductory words in the former par 5A has been removed. The plaintiffs now seek to introduce a more precisely formulated plea concerning an alleged publication on the Internet in addition to the radio broadcast. Both plaintiffs have now introduced an explicit plea of defamation by a true innuendo (this being in addition to the plea in par 8) that the words were reasonably understood to refer to the plaintiffs. As a consequence of the February reasons the claim for exemplary damages against the third defendant has been removed and there is some change to the claim against the defendants in respect of aggravated damages.
The defendants contend that even in its repleaded form, the minute of proposed claim should not be allowed and various criticisms are advanced, including principally a challenge to the cause of action based upon an alleged publication on the Internet ("the Internet plea"); second, a challenge to the second plaintiff's innuendo plea ("the second plaintiff's innuendo plea"); and, third, a challenge to the plea of aggravated damages ("the aggravated damages plea"). I will deal with each of these matters in turn.

The Internet plea

The plaintiffs plead in par 5(b) of the minute of proposed claim that on or about 18 April 2000, simultaneously with the radio broadcast, the interview was further broadcast by the first defendant making or causing the interview to be made available on the Internet. Availability on the Internet was by the World Wide Web, the Web site access code being 6PR.com.au.
The plaintiffs go on to say that the third defendant 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.
The law of defamation recognises a distinction between libel and slander. In general terms, the action for libel is concerned with the publication of defamatory matter which is in writing or some other permanent form, whereas the action for slander is concerned with the publication of defamatory matter by word of mouth or in some other transient form: Duncan and Neill on Defamation (2nd ed) par 3.01.
In the case of a libel, the law presumes that the publication has caused damage to the plaintiff, and it is not necessary for the plaintiff to prove that he has suffered damage in order to establish a cause of action. In the case of a slander, however, the plaintiff has to prove either that he has suffered special damage or that the words are actionable per se.
Slander is actionable per se, that is to say, actionable without proof of special damage, in four cases; 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: Fleming: The Law of Torts (9th ed) pp 605 ‑ 606.
With a view to removing uncertainty as to how radio broadcasts should be characterised, s 206 of the Broadcasting Services Act 1992 provides that for the purposes of the law of defamation, the broadcasting of a matter is taken to be publication of the matter in a permanent form. Put shortly, this means that radio broadcasts, albeit concerned with the spoken word, can be made the subject of a claim for libel, with the result that special damage need not be proved.
It is apparent from the minute of proposed claim that the plaintiffs have not set out any facts and matters or particulars sufficient to support a plea of special damage referable to the words complained of. It follows that if publication on the Internet be characterised not as publication in a permanent form, but as slander, the plaintiffs, in order to make out a reasonable cause of action in respect of that publication, will be obliged to show that the words complained of and the pleaded imputations fall within one or more of the four categories in regard to which it is not necessary to prove special damage.
In that regard, the position of the first plaintiff differs from the position of the second plaintiff. Most of the imputations relied on by the first plaintiff bear upon his position as a man who has been convicted of criminal offences or is allegedly of a criminal disposition. For example, the words complained of are said in par 10(ab) to contain an imputation that the first plaintiff is a recidivist offender. It seems from the decided cases that the first special category concerning words imputing the commission of a crime encompasses a general charge of criminality. Thus, in Gray v Jones [1939] 1 All ER 798, the words "you are a convicted person" were held to be actionable without proof of special damage because the basis of the exception is not that the words put the person defamed in jeopardy of a criminal prosecution, but that they cause other people to shun that person. Likewise, in Barnes & Co Ltd v Sharpe (1910) 11 CLR 462, Griffith CJ noted that the injury done to the reputation of a trading company by imputing to it criminal practices is in no way affected by the question whether it could be successfully prosecuted for them in a criminal court.
In the case of the second plaintiff, however, the pleaded imputations in respect of the alleged defamation by innuendo are set out in par 10A where it is pleaded that the words complained of meant or were understood to mean that (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 Ray Mickelberg with respect to an application for residency in New Zealand and (b) the second plaintiff has a history of deceitful behaviour. It is immediately apparent that even if the words complained of are capable in law of being understood by an ordinary, reasonable person to refer to the second plaintiff, the imputations in question, although uncomplimentary and arguably capable of lowering the second plaintiff in the estimation of her fellows, do not amount to imputations that she has committed criminal offences or is of a criminal disposition. It follows that if publication on the Internet is properly characterised as slander, then her situation would not fall within one or more of the four special categories.
The defendants submitted that when the words complained of were made available on the first defendant's Internet Web site, this did not constitute a "broadcasting" of matter in terms of s 206 of the Broadcasting Services Act, with the result that the words could not be said to have been published in a permanent form. Any defamatory statements made in that form of publication could only amount to a slander. In the premises, the plaintiffs had not properly pleaded a case of slander, there being no allegation of the matter complained of being actionable per se and nor was there any plea of special facts.
It was common ground at the hearing before me that publication on the relevant Internet Web site was not accompanied by text and consisted of the words alone. The plaintiffs referred to the definition of "broadcasting service" in s 6 of the Broadcasting Services Act whereby such a service is said to mean a service that delivers television programmes or radio programmes to persons having equipment appropriate for receiving that service, whether the delivery used in the radio frequency spectrum, cable, optical fibre, satellite or any other means, or a combination of those means.
The definition provision goes on to say that a broadcasting service does not include a service that provides no more than data, or no more than text (with or without associated still images) or a service that makes programmes available on demand on a point‑to‑point basis, including a dial‑up service, or a service, or class of services, that the Minister determines by notice in the gazette, not to fall within this definition.
The plaintiffs referred to a determination dated 12 September 2000, pursuant to s 6(1) whereby the Minister for Communications determined that the following class of services does not fall within the definition of broadcasting service, namely, "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".
The plaintiffs referred also to the definition of "broadcast" in the Macquarie Dictionary which describes the verb as being to send (messages, speeches, music, etc) by radio. Counsel argued that information on the relevant Internet Web site is received not as a consequence of a radio transmission, with the result that the service in question could not be described as a broadcasting service.
Counsel for the defendants recognised that a determination made in September 2000, that is to say, after publication of the words complained of, could not be regarded as decisive. They contended, however, that the recent determination by the Minister was an indication of how publication on an Internet Web site of the relevant kind should be regarded.
Counsel referred also to an article by Ranni Costelloe concerning "The Streaming Controversy" in Communications Law Bulletin Vol 19 No 3 2000 at 9, in which it was said at 11 that audio 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‑multi‑point in nature, with a broadcaster transmitting its service in real time to a multitude of viewers or listeners with television or radio sets. The author contends that television and radio services accessed using the Internet can arguably be regarded as broadcasting services if they are delivered over the broadcasting services bands which is part of the radio frequency spectrum allocated by the Australian Broadcasting Authority to broadcasting and data casting licensees. They are not broadcasting services if they are delivered outside of the broadcasting services bands.
Against this background, I incline to the view that, as at April 2000, publication of the interview on the first defendant's Internet Web site did not amount to the "broadcasting" of the matter. Accordingly, I consider that the minute of proposed claim in its present form, and especially as to par 5 and par 6, should be struck out as not disclosing a reasonable cause of action because the plaintiffs have failed to plead material facts and matters sufficient to support a claim in slander upon the basis that the plaintiffs suffered special damage or, alternatively, that the imputations fall within one or more of the four special categories whereby slander is actionable per se.
I have already noted that the first plaintiff had prospects of bringing the pleaded imputations within the imputation of crime category, with the result that he will not be obliged to plead special damage. Accordingly, the first plaintiff will be allowed leave to replead the Internet plea. In view of the ruling I am about to make concerning the second plaintiff's cause of action, I will not grant to the second plaintiff leave to replead the Internet plea.

The innuendo plea

I have already noted that in the February reasons I addressed the issue of whether the words complained of could be said to be defamatory of the second plaintiff in circumstances where she was not named in the interview and could not be described as a member of the Mickelberg family who had been convicted of criminal offences or was in any way associated with matters of notoriety such as the Perth Mint swindle or the Yellow Rose of Texas swindle. I did, however, grant the second plaintiff leave to replead. As I have already indicated, the second plaintiff seeks to overcome the effect of the previous ruling by introducing a new and explicit plea of defamation by innuendo.
Thus, one now finds in par 9 of the proposed claim, a plea that the words were by innuendo understood to refer to the second plaintiff in that (a) the words taken as a whole refer to the Mickelberg family and (b) the second plaintiff as the wife of the first plaintiff lobbied members of the Western Australian Liberal Party with respect to the first plaintiffs' and Ray Mickelberg's application for residency in New Zealand and this was a matter which received wide publicity. The suggestion is that the second plaintiff's connection to the Mickelberg family was widely known in the Western Australian community and to readers of The West Australian newspaper.
The plaintiffs placed reliance upon various evidentiary materials, including newspaper clippings exhibited to the affidavit of Simone Marie Mickelberg, sworn 29 November 2000. Counsel for the defendants accepted that in the context of an innuendo plea, I was at liberty to refer to these evidentiary materials.
The rule is that a plaintiff who seeks to rely on an innuendo meaning has to plead and prove the facts and circumstances which conveyed a special meaning to persons who knew the relevant facts and circumstances: Duncan and Neill (supra) par 4.18. I mentioned earlier that the interview commences with the second defendant saying that he wanted to raise with the third defendant "the Mickelberg matter that's been around for most of the last couple of days".
The expression "the Mickelberg matter" is a comparatively neutral expression. One recognises immediately, however, that if the extraneous circumstances and evidence relied upon by the plaintiffs established that there was a body of listeners with special knowledge, who knew from pervasive publicity that "the Mickelberg matter" was a reference to the second plaintiff having been involved in an attempt to deceive parliamentarians and members of the Liberal Party in an attempt to obtain documents to assist the proposed migration to New Zealand, then it might be open to the second plaintiff to assert that the words subsequently used in the interview were arguably a reference to her, and that she was therefore identified, albeit not named, in the interview. The plaintiffs, and the second plaintiff in particular, argued the case along these lines.
The plaintiffs recognised if there had been no antecedent publicity concerning the alleged deceit of members of the West Australian Liberal Party, the ordinary and reasonable listener to the words would most probably have construed the comments in the words which concern the alleged deceit to be references pertaining to Ray Mickelberg and the first plaintiff only.
The plaintiffs went on to say, however, that the antecedent publicity which was published, in the first instance, in The West Australian newspaper on Saturday, 15 April 2000, in fact arguably implicated the first and second plaintiffs as the Perth people who had presented a case to one of the parliamentarians, Mrs Cheryl Edwardes, seeking a reference to assist a bid by the Mickelberg family to migrate to New Zealand. Subsequent publicity arguably placed some emphasis upon the second plaintiff's role in the matter, with the result that thereafter any reference to the Mickelberg matter or to what members of the Mickelberg family were doing would be understood by listeners with the special knowledge to import a reference to the second plaintiff.
The plaintiffs submitted that there was at least an arguable case that ordinary and reasonable listeners to the interview armed with the knowledge available from any or all or a combination of the various publications would conclude that the second plaintiff was identified in those parts of the words complained of that refer to the migration issue and to the alleged deceit of the Western Australian Liberal Party members.
It was on that basis, the second plaintiff argued, that she had set up a clear and arguable case in par 10A that statements made by the second defendant in the interview meant or were understood to mean by way of innuendo that (a) the second plaintiff had acted deceitfully in the course of asking members of the Western Australian Liberal Party for a reference for the first plaintiff and Ray Mickelberg with respect to an application for residency in New Zealand and (b) the second plaintiff had a history of deceitful behaviour.
Various submissions were raised by the defendants in answer to this line of argument. First, the evidentiary materials did not establish clearly that the second plaintiff had a prominent role in the approaches that were made to parliamentarians. Further, and in any event, even if one took account of the evidentiary materials, this did not necessarily lead to a conclusion that "the Mickelberg matter that's been around for most of the last couple of days" pointed to a controversy concerning the second plaintiff. The essence of the controversy was essentially whether it was appropriate that members of the Mickelberg family who had been convicted of criminal offences, and especially in circumstances where Ray Mickelberg had just been convicted of another offence, should be provided with references by prominent political figures in support of an application to migrate to New Zealand.
Second, and perhaps more importantly, the defendants argued, that it quickly became apparent from the language of the interview itself that "the Mickelberg matter that's been around for most of the last couple of days" was a reference to a controversy involving those members of the Mickelberg family with criminal records. Thus, shortly after the interviewer's opening gambit, the interviewer speaks of a Liberal politician writing character references for one of the State's most notorious criminals. Earlier on, the third defendant seeks to put "it in perspective" (that is to say, he seeks to put the controversy in perspective) and goes on to say that "these people were found guilty of offences and went to gaol and did their time". He refers later to an approach made by "these people" to members of parliament.
In the course of debate, the plaintiffs challenged this view of the matter by referring to those occasions during the course of the interview in which reference is made to "the family" presenting a case. The suggestion was that references of this kind placed the emphasis not upon those members of the Mickelberg family who had criminal records, but upon those members of the Mickelberg family, and especially the second plaintiff, who had played an active role in presenting a case to the parliamentarians. Nonetheless, having carefully reviewed the transcript of the interview, I doubt that a listener possessed of the so‑called special knowledge that the second plaintiff 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 my view, such a listener would understand 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. It was the individuals of that description who were under attack and the subject of the allegedly defamatory imputations.
Thus, in essence, I arrive at the same conclusion in respect of the second plaintiff's repleading of her claim, albeit by way of the innuendo plea, as I arrived at previously. Even if a listener knew that the second plaintiff was a person who had engaged in approaches to the parliamentarians, a reasonable listener would not conclude that the broadcast was of and concerning the second plaintiff.
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, do not refer to a class of persons which include the second plaintiff.
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.
It follows that, in my view, the words complained of are not capable of conveying a meaning defamatory of the second plaintiff either in their ordinary and natural meaning or by way of innuendo because they did not identify the second plaintiff as the subject of the criticism. It follows that the minute of proposed claim does not disclose a reasonable cause of action by the second plaintiff as against the defendants, with the result that the plaintiffs should not be allowed leave to amend in the terms proposed.
I was prepared to grant the second plaintiff leave to replead on the previous occasion pursuant to the general practice that a plaintiff should not be lightly deprived of an opportunity to reformulate a case in the light of reasons given by the court as to the manner in which a claim was thought to be insufficiently pleaded. However, on this occasion, now that the second plaintiff has been afforded that opportunity, and has not been able to overcome the difficulties confronting her, I consider that she should not be allowed leave to replead.
In my view, as the difficulties I have just addressed appear to be fundamental and insurmountable, I cannot see that there is anything to be gained in allowing the second plaintiff leave to replead in respect of the alleged publication on the first defendant's Internet Web site. It was for that reason, as indicated earlier, that leave will not be granted to the second defendant to replead in that respect.
For the sake of completeness, I note in passing that at the hearing before me the defendants raised various issues as to the imputations pleaded by the second plaintiff in par 10A and par 11A of the minute of proposed claim. The defendants submitted that even if it be held that the second plaintiff was identified by the words complained of, the imputations set out in her pleading could not be said to arise from the words complained of.
In the light of the ruling I have just made concerning the identification issue, it is not necessary for me to deal with these further submissions at length. However, I am of the view that, in any event, the second plaintiff has not mounted an arguable case that the meanings and imputations contended for concerning her do arise from the words complained of.
The third defendant also made some submissions concerning par 8A of the proposed statement of claim. This paragraph was said to be objectionable because it failed to make the necessary link between the classes of people referred to therein, and alleged to have knowledge of the special facts, and the persons to whom the words are said to have been broadcast on the radio and on the Internet. Further, par 8A does not contain an allegation that listeners of the broadcast also possess knowledge of the special facts.
It seems to me that the plea in par 8A is sufficient in its present form. To my mind, it does convey the notion that facts amounting to special knowledge were known to certain persons. Any further amplification of the claim in that regard can be obtained by way of particulars. The decided cases suggest that the plaintiffs are not required to plead as a material fact the precise identifies of those persons having the knowledge. Gumina v Williams (No 1) (1990) 3 WAR 342; Vitale & Ors v Bednall [2000] WASC 207.

Aggravated damages

The defendants submitted that the matters pleaded in par 13 were not capable of sustaining a claim for aggravated damages. Further, par 13A and par 13B do not support a claim for aggravated damages. They went on to submit that if, which was denied, either plaintiff could maintain claims for aggravated or exemplary damages, the claim should be pleaded separately for each plaintiff.
It follows from my earlier ruling that as the claim of the second plaintiff is to be struck out without leave to replead, the issue concerning aggravated damages must now be looked at essentially from the point of view of the first plaintiff. I note also that at the hearing before me, certain amendments were made to the minute which had the effect of importing into par 14 of the claim the matters referred to in par 16 and par 17 of the claim, that is to say, that a request for an apology was made, but no apology was provided.
I have to say that, in my view, the matters in issue were essentially covered by the reasoning set out in my February reasons at par 103 to par 116 and, for the reasons given at that time, I consider that the first plaintiff has pleaded sufficient facts and matters to raise a clear and arguable case for aggravated and exemplary damages against the first and second defendants and a clear and arguable case for aggravated damages as against the third defendant. Accordingly, I am not persuaded to strike out any portion of the pleading bearing upon those issues.

Summary

It follows from the preceding discussion that, in my view, the claim advanced by the second plaintiff should be struck out as failing to disclose a reasonable cause of action and without leave to replead. This finding, of itself, requires consequentially that the plaintiffs will not be granted leave to amend the statement of claim in the form of the minute of proposed claim. Nonetheless, it does appear, as reflected in the February reasons and discussion in these reasons, that the words complained of are capable of conveying meanings defamatory of the first plaintiff and that the first plaintiff is probably in a position to overcome the arguments raised against him in respect of the Internet plea for the reasons I have indicated. Accordingly, the first plaintiff will be allowed leave to submit a further minute of proposed statement of claim within 21 days. I will hear from the parties as to whether any further orders are required.