Moran v Schwartz Publishing Pty Ltd (No 3) - [2015] WASC 215

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MORAN -v- SCHWARTZ PUBLISHING PTY LTD [No 3] [2015] WASC 215

CORAM: KENNETH MARTIN J

HEARD: 10 APRIL 2015

DELIVERED : 12 JUNE 2015

FILE NO/S: CIV 1894 of 2014

BETWEEN: TOBIAS FRIEDRICH MORAN
Plaintiff
AND
SCHWARTZ PUBLISHING PTY LTD
First Defendant
VIRGINIA PETERS
Second Defendant

Catchwords:

Defamation - Strike out application - Defences - Hybrid plea of fair report of public proceedings - New South Wales Coroner's Court - Book - Defamation Act 2005 (WA) s 29 - Residual components of the book's contribution to Chase level meaning - Not benign

Damages - Mitigation - Plaintiff's distress and annoyance - Attempt to plead numerous earlier publications (59) of defamatory imputations as to guilt or reasonable suspicion of murder

Legislation:

Defamation Act 2005 (WA)

Result:

Two paragraphs of defence struck out

Category: A

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     Mr M C Goldblatt
Second Defendant         :     Mr M C Goldblatt

Solicitors:

Plaintiff:     Bennett + Co
First Defendant             :     Carmel Galati
Second Defendant         :     Carmel Galati

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

Boschetti v Carr [2002] WASC 211
Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44
Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519
Chappell v Mirror Newspapers (Unreported, NSWSC, 24 July 1981)
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211
Curistan v Times Newspapers Ltd [2008] EWCA CIV 432; [2009] QB 231
Dingle v Associated Newspapers Ltd (1964) AC 371; [1962] 3 WLR 229
Lucas‑Box v News Group Newspapers Ltd [1986] All ER 177; [1986] 1 WLR 147
Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261
McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86; [1965] 2 WLR 45
Mihaka v Wellington Publishing Co (1972) Ltd; Alister Taylor Publishing Ltd (third party) [1975] 1 NZLR 10
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35
Peters v Television New Zealand Ltd (TVNZ) [2011] 2 NZCA 231; (2012) NZLR 466
Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 All ER 84
Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327
Shea v News Ltd [2015] WASC 1

KENNETH MARTIN J: By its application of 9 March 2015, the plaintiff applies to strike out two paragraphs in the defendants' amended defence filed on 16 February 2015.
The plaintiff's interlocutory attack is now directed only at par 9 and par 14(b) of the amended defence - which respectively seek to raise on the part of the defendants, the following answering pleas:
(a)as regards certain passages only in the defendants' book (Book), a fair report of proceedings of public concern pursuant to s 29(1) and 29(4)(e) of the Defamation Act 2005 (WA); and
(b)of attempted mitigation of damages, that in the event the plaintiff is asserted to have been defamed by any defamatory meaning conveyed by the relevant publication complained of (the book) that by reference to a series of 59 identified prior publications over the period between July 2005 and 21 March 2014, that the plaintiff has not actually suffered the harm as he has alleged, in the form of distress, or any annoyance or grief, from the publication of the Book.
I set out the full text of par 14(b) of the amended defence in due course.
Background to this defamation dispute can be obtained from my reasons in previous interlocutory decisions, Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 and Moran v Schwartz Publishing Pty Ltd [No 2] [2015] WASC 35. In essence, however, the plaintiff, who was known before his marriage, as Tobias Friedrich Suckfuell, complains he was seriously defamed by the publication of the second defendant's book, described as a creative non-fictional work entitled, Have You Seen Simone? The Story Of An Unsolved Murder. The first defendant is the publisher of the Book.
The plaintiff's pleaded defamation case is very straightforward. Under par 7 and par 8 of his statement of claim of 9 July 2014, he complains the 306-page Book is defamatory of him, by conveying as a whole, one very grave imputation.
The single defamatory imputation alleged in the Book is that the plaintiff 'murdered Simone Strobel'.
Paragraph 7 and par 8 of the statement of claim say (being framed in the alternative):
7.The Book complained of was defamatory in its natural and ordinary meaning and was understood to mean the plaintiff murdered Simone Strobel.
8.Alternatively, the Book complained of was defamatory by way of true innuendo and was understood to mean that the plaintiff murdered Simone Strobel.
Particulars of true innuendo
The Book was defamatory to those persons who knew the plaintiff was formerly known as Tobias Friedrich Suckfuell.
For the purposes of assessing the arguments which arise concerning the admissibility of evidence of prior defamatory publications against this plaintiff (raising the same imputation that the plaintiff murdered, or was reasonably suspected of murdering his then girlfriend, Simone Strobel), it is necessary to see as well, par 9 of the statement of claim, which reads:
9.By reason of the defendants' Book the plaintiff:
9.1has been greatly injured in his credit, character and reputation;
9.2has been brought into public hatred, scandal, odium and contempt;
9.3has been lowered in the estimation of right-thinking members of the community;
9.4has been injured by way of his occupation and calling; and
9.5has suffered distress and embarrassment.
The above reference under subpar 9.5 to 'distress and embarrassment' is relevant to the defendants' present assertion of a right to adduce at trial evidence of what appear to be numerous prior defamatory publications along the same lines concerning the death of Simone Strobel and the plaintiff's involvement in that crime - in a context of joining issue against the plaintiff's assertions of 'distress', 'annoyance' and 'grief', allegedly arising out of the subsequent publication of this Book, (or as was said in argument, towards the level of any asserted distress, annoyance, or grief). This all arises in circumstances where the defendants would like to lead mitigation evidence at the trial, that multiple similar defamatory imputations had been earlier circulated widely, under at least 59 prior publications, spanning over nine years (2005 - 2014) - all concerning the plaintiff but, also, proving that he had done nothing at all about challenging any of them (from a defamation perspective) until when he took issue against the Book in 2014.

The state of the pleadings

Before dealing with the mitigation of damages issue, it is necessary to note contextually, that the defendants by their amended defence (par 7), do at the outset deny that the Book bore the meaning that the plaintiff complains of (namely, that he murdered Simone Strobel). They also deny the Book was capable of bearing any meaning defamatory of the plaintiff. But alternatively to those denial pleas, the defendants then go on to plead a defence plea of alternative justification, under par 8. Such plea is commonly referred to as a Polly Peck, or a Lucas‑Box defence, (invoking the terminology of the names of the underlying leading decisions in this area of defamation law by establishing the legitimacy of such a defence plea: see Polly Peck (Holdings) plc v Trelford [1986] QB 1000; [1986] 2 All ER 84 and Lucas‑Box v News Group Newspapers Ltd [1986] All ER 177; [1986] 1 WLR 147).
But there is no plea in the amended defence as to a direct justification or of a plea of substantial truth in response to the plea by the plaintiff as regards the Book carrying the gravest level of meaning against his reputation, namely that he 'murdered Simone Strobel'.
The highest level of defamatory imputation, as contended for by the plaintiff as arising from the Book, effectively as to his guilt of the crime of murder, can be referred to as a Chase level 1 plea, invoking the classification taxonomy of the UK Court of Appeal in Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11. My reasons in Shea v News Ltd [2015] WASC 1, discuss the tiers of classification under a Chase taxonomy as regards imputations asserting criminal activity.
Invoking that Chase taxonomy, it may be seen that the pleaded partial justification (Polly Peck) level of defence, as raised by the defendants under par 8 - does not seek to engage the plaintiff so as to seek to justify the truth or substantial truth of the plaintiff's Chase level 1 imputation, that is of his guilt of the crime of murder. Rather, the defendants would only seek at trial, via par 8, to engage against a lesser (Chase level 2) level of defamatory imputation, namely that 'the plaintiff was suspected on reasonable grounds of having murdered Simone Strobel'. They go on to plead that this lesser level Chase level 2 imputation, is substantially true.
It can be seen that par 8 of the amended defence raises that alternative defamatory meaning concerning the Book 'as a whole', and 'in its natural and ordinary meaning' (ie, the meaning of the Book).
In other words, like the plaintiff, the defendants by par 8 plead in defence a meaning arising from the whole 306 pages of the Book, not just selected passages or parts of the Book.
There is no strikeout attack directed against that par 8 Polly Peck plea by the defendants.
It is significant in the present context, however, that par 8 sees the defendants engage by way of their defence against an alleged lesser defamatory meaning argued as arising from the Book 'as a whole'.
That engagement by par 8 of the defence as against a meaning derived from the whole Book also meets par 6 of the statement of claim, which is in the following terms concerning, once again, the whole Book's meaning (rather than a meaning of mere extracts in the Book):
6.It is not practical for the Book to be pleaded in full due to its length. Whilst the plaintiff's claims relate to the entirety of the Book, particular emphasis is placed upon the passages identified in schedule A hereto.
Schedule A to the statement of claim is then seen to identify some 136 passages from within the Book, which the plaintiff relies upon to illustrate his contention that the Book as a whole defames him at the most serious Chase level 1 meaning (ie, of his guilt).
What is the so far orthodox par 8 defence responsive engagement by the defendants over the correct defamatory level of meaning of the Book as a whole may be contrasted to a following par 9 plea in the amended defence. This is the paragraph that is presently attacked. It is seen to be pleaded in the alternative to the defendants' earlier pleas of denial of any defamatory meaning in the Book (under par 7), and then the plea of substantial truth (under par 8) towards the lesser level meaning that the plaintiff was suspected on reasonable grounds of having murdered Simone Strobel (the Chase level 2 plea).
Significantly, par 9 is pleaded to engage under a statutory defence of 'fair report of proceedings of public concern' (pursuant to s 29(1) and s 29(4)(e) of the Defamation Act 2005), only as against 32 expressly identified passages taken from within the Book, rather than as against the whole of the Book.
It is necessary to set out parts of par 9 of the amended defence, which reads (noting in particular a use of a phrase 'the defamatory matter in'):
9.Alternatively to 7 and 8 above, if, which is denied, the Book was published of and concerning the plaintiff and the Book conveyed any meaning defamatory of the plaintiff, the defendants say that the publication of the defamatory matter in the following pages of the Book:
(a)[… thru (w) identifying passages from within the Book, at page 23 and at various other diverse places up to finally, passages at page 272 of the Book];
...
(w)...
was a fair report of proceedings of public concern, pursuant to section 29(1) and 29(4)(e) of the Defamation Act 2005 (WA).
Particulars of public proceedings
(a)In July 2007 New South Wales Deputy State Coroner Paul MacMahon conducted an inquest into the death of Simone, pursuant to the provision of the Coroners Act 1980 (NSW) (Inquest).
(b)The inquest was conducted as an opening.
(c)The defamatory matter in the Book, set out in 9(a) to (n) [sic, w] above, was a report of the inquest. (my emphasis in bold)
Subsequent pleas in the amended defence raise even more defences to the defamation action in the alternative, including under par 10, a defence of 'honest opinion' pursuant to s 31(1) and s 31(2) of the Defamation Act 2005 (that plea was initially attacked under this application, but the challenge was not in the end pressed - under a notification conveyed by the plaintiff's reply written submissions, filed 9 April 2015 (par 2)).
The defendants also (alternatively) seek to raise a s 30 Defamation Act 2005 statutory defence of qualified privilege concerning the whole Book, under par 11 of the amended defence.

The plaintiff's attack against the defendants' limited (to 32 passages) plea of fair report under par 9 of the amended defence

From the plaintiff's initial tranche of written submissions of 9 March 2015, two core grievances raised against par 9 emerge, formulated in these terms:
4.It is not in dispute that the Coronial Inquiry (into the death of Simone Strobel by the New South Wales Coroner's Court commencing 9 July 2007, findings delivered 16 October 2007) is a proceeding of the requisite type (for the purposes of s 29(4)(e) of the Defamation Act 2005 (WA) being 'proceedings in public of a court or arbitral tribunal of any country').
5.However, the plea is defective in two material respects, namely:
5.1it is pleaded only with respect to extracts of the Book, not the Book as a whole; and
5.2the extracts of the book relied upon in paragraphs 9(a) ‑ (w) of the Defence present a narrative of the Second Defendant's own experiences and speculations rather than a discrete, accurate and impartial report of the Coronial Inquiry.
6.The plea is therefore unsustainable, even at a strikeout level.
As regards the plaintiff's subpar 5.1 attack concerning a 'fair report' plea, only addressing limited extracts from the Book, rather than the Book as a whole, the submissions contend:
7.The Book is 306 pages long.
8.Only 26 pages of the Book arguably reference the Coronial Inquiry. [NB: Upon my inspection of par 9 of the amended defence, the defendants assert that 32 pages of the Book reference the Coronial Inquiry].
9.In Macquarie Radio Network Pty Ltd v Arthur Dent [2007] NSWCA 261 Beazley JA (Mason P agreeing) held that:
'[70] … The question of "fair summary" has to be determined by reference to the later publication as a whole.
...
[72]In circumstances where a later publication adds, in a significant way and without sufficient differentiation, to the material that is contained in the protected report, it is not sufficient for there to be a mix of material, some of which accurately and fairly summarises what is in the "protected report" and some of which does not. If the reader or listener cannot decipher the extent to which the matter that conveyed the defamatory imputations went beyond the material in the protected report … In this case, that differentiation could not be made. There was thus no error in her Honour's conclusion that this was not a "fair summary" of the Herald report.
Rogers v Nationwide News Pty Ltd (2003) 216 CLR 327; [2003] HCA 52 followed.'
...
11.In circumstances where the ordinary reasonable reader cannot differentiate between the comments, opinions and experiences of the Second Defendant and the content of the Coronial Inquest, the selected passages of the Book cannot be afforded the protection of s 29 of the Act for the whole Book. (emphasis in original)
The defendants' responsive written submissions of 30 March 2015, reject the plaintiff's attack on par 9. They contend, by reference to essentially the same key authorities as are relied upon by the plaintiff, namely Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 and Macquarie Radio Network Pty Ltd v Dent [2007] NSWCA 261, that:
(a)A fair and accurate report of proceedings does not necessarily need to be a complete report.
(b)A fair report need not be accurate in every respect, although it must be substantially accurate (referring to the observations of Gaudron and Gummow JJ at [42] in Chakravarti v Advertiser Newspapers Ltd [1998] HCA 37; (1998) 193 CLR 519). These observations of course concerned s 7(1) of the Wrongs Act 1936 (SA). See Brennan CJ and McHugh J in Chakravarti at [2]. Note also the comprehensive discussion of principles by Kirby J at [153].
(c)The plaintiff has not made a complaint about inaccuracy - in terms of what is said in the Book about what occurred at the inquest, and nor has the plaintiff suggested that there was any misrepresentation by the Book's report of any material fact prejudicial to the plaintiff's reputation.
(d)The intermingling of extraneous material may, but not necessarily will, detract from an assessment that a report of proceedings is a fair and accurate report.
(e)The quality of fairness in a report may be lost by an excessive intermingling of extraneous material. But here, particularly, reliance is placed by the defendants upon a decision of the Court of Appeal of England and Wales in Curistan v Times Newspapers Ltd [2008] EWCA CIV 432; [2009] QB 231, as supporting their approach.
(f)The various 32 extracted passages as identified under par 9 of the amended defence, in making reference to material sourced from the New South Wales 2007 coronial inquest, are explicitly identifiable in the Book as being so sourced, for the various subparagraph references under subpar 9(a) through (w), for each of the 32 passages as were mentioned.
(g)A literary flourish, or the expression of some emotion on the part of a writer, does not necessarily deprive a party of the protection of s 29.
(h)The plaintiff has had little, if any, difficulty identifying passages within the Book as being the second defendant's (author's) expressed personal views, rather than material which is part of a report of the New South Wales Coroner's Court proceedings examining the death of Simone Strobel.
(i)On a strikeout application, it should not be too readily concluded that it is overwhelmingly clear that the hypothetical ordinary reasonable reader of these extracted passages, would not be able to distinguish between reporting in the Book as to the New South Wales Coroner's inquiry proceedings, in contrast to the author's personal views as expressed in the Book.
Under the plaintiff's written reply submissions of 8 April 2015, the plaintiff reiterates the core grievance that:
[the] primary objection to this plea is that the defence cannot be relied upon with respect only to selected extracts of the Book, rather than the Book as a whole [5].
Again, the plaintiff invokes to that end the Macquarie Radio Network decision, particularly at [70].
At par 20 the plaintiff provides some illustrative examples, essentially of its submission at subpar 5.2 of its primary submissions of there being too much interwoven author comment found in an extract relied upon by the defendants as being the subject of s 29 protection, by reference to the following extract from the Book:
We all stood as the Deputy State Coroner, Mr Paul MacMahon, entered the court. As a magistrate, he wore his own head of hair - a thick, white mop with a fringe - and a black gown over his suit. He looked like Phil Donahue, the American talk show host from the 90s. Instantly, he introduced a touch of reality TV to a room that more resembled a honey‑toned lecture theatre than a court [page 23].

The plaintiff says that the author's diverting excursion into irrelevancies (the Coroner's hair, etc) in the above extract (and other examples) are indicative that the extracts could not, on any view, be arguably regarded as 'fair' reports of the 2007 New South Wales Coroner's Court's proceeding. This is based on what is attacked as the frequent intermingling of the second defendant's 'personal views' and her 'thought bubbles'. It is said that such extraneous personal observations, obviously could not and do not fairly or accurately report or summarise what happened in the Coroner's proceedings, rendering it impossible for any reader to decipher the extent to which the matter alleged to convey the defamatory imputation went beyond merely the material in a protected report.

Paragraph 9: Defence raising a s 29 fair report of Coroner's proceedings in parts of Book: Determination

In my assessment, the plaintiff's first subpar 5.1 line of attack against par 9 must succeed, on the basis that the defendant's plea directed at claiming protection by a fair report of public proceedings under s 29 of the Defamation Act 2005 ‑ but only for certain limited passages in the Book (amounting in aggregate to about 32 pages of the Book) within a publication context of the 306-page Book (with the Book as a whole being the defamatory publication complained of by the plaintiff), is misconceived. That fair report plea, in my view, as it is currently framed, simply does not go far enough to actually engage against the plaintiff's plea - which is about a defamatory meaning derived from the whole Book.
It would be another thing entirely, of course, if the defendants' par 9 plea had gone on to assert that the residue of the Book, assessed after quarantining identified passages the subject of a protected report, could then no longer be (arguably) assessed by a hypothetical, ordinary, reasonable reader as carrying the plaintiff's Chase level 1 imputation or that, when the protected passages are read only as context for the residue of the Book, the defendants' Chase level 2 imputation of reasonable suspicion is the correct meaning to emerge. But those outcomes are not pleaded and so that is not the argument put in this case. That being so, the current par 9 plea which is directed at only 32 passages in the Book, in the end, accomplishes nothing, if the residue of the Book can be assessed as still carrying the plaintiff's Chase level 1 meaning.
During oral arguments it appeared to be the case (see ts 179 and ts 180) that the defendants do not seek (at least on this application) to contend that the residue of the Book (absent the asserted fair report passages) is rendered benign, from a defamation perspective, as against the plaintiff - once the identified par 9 passages are isolated, or treated as 'mere context', taken within the Book as a whole - from a defamatory meaning contribution perspective.
On that basis, in the context of dealing with the meaning of a 306‑page Book, my assessment is that the defendants' effort to raise what is a confined plea of fair report, only in respect of a limited number of passages - is essentially a pointless exercise, of no moment to raising a viable and legitimate defence against the issues arising at a potential trial. From a case management perspective then, the par 9 plea as currently framed, presents as an irrelevant distraction to the true issues arising at a potential trial. It should be removed.
Nor, I should say, does the defendant plead that by isolating the fair report passages (or treating them only as context in the Book) that this would aid a deviation of a lesser level defamatory meaning from the residual passages of the Book - towards their reasonable suspicion imputation ‑ as against the plaintiff's contended higher level imputation of his guilt.
The other limb of the plaintiff's attack (via par 5.2 of its submissions), cannot be accepted at this point. I am not inclined to undertake the exercise of an interlocutory individual assessment of various passages contended for - in order to render an assessment that by reason of an alleged undue injection of the author's (second defendant's) added on personal comments, experiences or speculations, that statutory privilege must be denied, to resolve whether the protection of a fair report that otherwise might have been enjoyed. To my mind, that assessment outcome is not obvious here. It would be one more properly conducted at the trial, rather than on a strikeout application. An attack based upon criticising the poor literary standard of the writing in the Book is also misplaced - attractive as having that power might otherwise be as a new development in the law.

Curistan v Times Newspapers Ltd

During oral arguments it seemed to me that the overwhelmingly significant emphasis of the defendants in defending their plea under par 9 was tied to their perceptions as to the significance and applicability in present circumstances of the Curistan decision in the Court of Appeal of England and Wales. But on my assessment, Curistan does not assist the defence as pleaded under par 9.
There are some heavily distinguishing features at the outset to Curistan. In the first place, there present as being real textual differences between s 29 of the Defamation Act 2005 and s 15 of the UK legislation under consideration in Curistan, namely s 15 (and sch 1) of the Defamation Act 1996 (UK). The text of s 15 and sch 1 is found set out in par 6 of the reasons of Arden LJ in Curistan. I need not set it out in these reasons, other than to note that s 15 refers to the protection of a report or other statement, as being privileged.
Second, Curistan concerned a much shorter newspaper article (of a mere 18 paragraphs), not a 306 page book.
Third, Curistan was not dealing with the circumstances of the publication of a book - in a context of only limited extracts from within a book being claimed to be protected as fair reports of proceedings of a public concern.
Fourth, Curistan concerned a hybrid report in a newspaper article about what a member of Parliament had said whilst in Parliament concerning the claimant businessman and his suggested laundering of money for the IRA. The newspaper's hybrid article had fairly reported what had been said in Parliament, but had added further information which was also the subject of the claimant's action for libel.
Fifth, the trial judge in Curistan had been considering two preliminary issues which decisions by leave had then been taken on appeal to the Court of Appeal.
Sixth, the newspaper in Curistan would have been liable in defamation for imputations otherwise entitled to privilege were they adopted by the article overall as the newspaper's own allegations. Like the trial judge, the Court of Appeal concluded that the report passages in the article had not been adopted as the newspaper's position.
Seventh, in Curistan the meanings of the non-privileged passages in the newspaper article were to be ascertained, in the end, on the basis that the protected passages had merely provided 'context' - in which context the non-privileged passages were to be read and assessed.
Eighth, recourse could be had in Curistan to the privileged passages to support the (appellant/defendants' contended) meaning in the non-privileged passages at the lesser level of a Chase 2 imputation, as contended by the newspaper, over the plaintiff's higher Chase level 1 contended imputation.
Ninth, in Curistan it was accepted that there were non-privileged passages within the newspaper article, as well as the fair report passages. The trial judge had been correct to initially conclude that the newspaper had not adopted for itself the statements made within the fair report passages. They remained privileged. Privilege was not lost by an application of the repetition rule in Curistan. The trial Judge had erred to that extent in applying that rule and that error was corrected on the appeal.
So here then, my resulting assessment is that Curistan is distinguishable from the present case mainly because of two critical features, namely:
(a)presently, there is only the one imputation that is complained of by the plaintiff, namely his Chase level 1 imputation as to his guilt - a meaning which is alleged to arise out of the words of the Book assessed as a whole; and
(b)there is no suggestion here that the fair report passages as identified by the defendants if quarantined or isolated, or even explicitly labelled as mere context, as fair reports of a New South Wales coronial proceeding - would leave a residue of words from the Book that are either not defamatory of the plaintiff, or are assessable at only a Chase level 2 meaning of reasonable suspicion, as contended for by the defendants.
In short, therefore, for present circumstances where it is not pleaded under par 9 that the defamatory imputation as contended for by the plaintiff is not capable of being derived from the residual passages within the Book (ie, beyond those identified by the defendants under par 9), then the defendants' plea under par 9 contending the limited passages in the Book are fair reports of proceedings of a public concern, will ultimately accomplish nothing. The par 9 plea goes nowhere in the end and so the mooted classification exclusion, as regards a fair report or otherwise under par 9 towards 32 passages from the Book only, is a pointless and diverting exercise that should not be allowed.
The defendants subsequent to arguments have drawn my Associate's attention to the decision of the New Zealand Court of Appeal, Peters v Television New Zealand Ltd (TVNZ) [2011] NZCA 231; (2012) 2 NZLR 466. That decision applied Curistan to the presenting facts. However, the matter did not concern a Book publication and in my view it does not add to or assist the required analysis.

Attack upon par 14(b) of the amended defence

I return to the remaining aspect of the plaintiff's strike out application, concerning the prior publications plea - now raising s 34 of the Defamation Act 2005.
As earlier mentioned, the plaintiff essentially attacks par 14(b) of the amended defence, on a basis it violates a fundamental rule of defamation law -concerning a plaintiff's entitlement to damages from a defamatory publication. This is the rule as stated by the House of Lords in Dingle v Associated Newspapers Ltd (1964) AC 371; [1962] 3 WLR 229. In Dingle (410 ‑ 411) Lord Denning had said:
At one time in our law it was permissible for a defendant to prove, in mitigation of damages, that, previously to his publication, there were reports and rumours in circulation to the same effect as the libel. That has long since ceased to be allowed, and for a good reason. Our English law does not love tale-bearers. If the report or rumour was true, let him justify it. If it was not true, he ought not to have repeated it or aided its circulation. He must answer for it just as if he had started it himself … They must answer for the effect of their own circulation without reference to the damage done by others.
See also the passages in Mullis A and Parkes R, Gatley on Libel and Slander (12th ed, 2013) [33.36], [33.58].
There is some level of statutory limitation now put upon the Dingle principle, delivered by s 38(1)(e) of the Defamation Act 2005 - but that reform is of no direct relevance to the present application.
I do note, however, s 38(2) of the Defamation Act 2005 which provides 'Nothing in subsection (1) operates to limit the matters that can be taken into account by a court in mitigation of damages'. See also s 6(2) of the Defamation Act 2005, as regards the continued operation of the general law in relation to the tort of defamation, save to the extent that the Defamation Act 2005 provides (either expressly or by necessary implication) otherwise.
As now seen, the defendants by par 14(b) of the amended defence would seek to raise, to rely upon at trial (in an asserted mitigation of damages exercise), some 59 prior publications, as identified in schedule A to the amended defence. Schedule A contains references to 59 prior publications in the period between July 2005 and March 2014.
Essentially, the defendants by this plea are contending that prior to the publication of the Book, both by hard copy and on-line, there had been voluminous prior publications 'imputing to [the plaintiff] the murder of Simone, or the suspicion that he murdered Simone … '
It is also said by the defendants that the plaintiff had taken 'no steps whatsoever in relation to such publications to vindicate his reputation or restrain the publications'.
The plaintiff challenges this plea as a gross violation of the cardinal principle, as explained in Dingle's case. On the other hand the defendants acknowledge the Dingle principle but they say, via par 36 and par 37 of their written submissions:
36.It is important to the resolution of the issue raised by the plaintiff that the defendants are not relying upon previous publications as having tarnished the reputation of the plaintiff or in relation to any damages to the reputation of the plaintiff, other than those damages falling under the rubric of distress, annoyance and grief.
37.The defendants plead that, should the plaintiff succeed in his action at trial, bearing in mind the enjoyment of section 34 of the Act, the Court should take into account, in determining the amount of damages to be awarded to the plaintiff for distress, annoyance and grief, the fact that, prior to the publication of the Book, the plaintiff had been seriously defamed nationally over a period of approximately 10 years in local and national media outlets and on television, in printed media and on the worldwide web, and had taken no steps to vindicate his reputation or restrain the publications.
The defendants' stance purports to invoke a so called principle of damages 'proportionality', as is seen expressed under s 34 of the Defamation Act 2005 in these terms:
34.In determining the amount of damages to be awarded in any defamation proceedings, the court is to ensure that there is an appropriate and rational relationship between the harm sustained by the plaintiff and the amount of damages awarded.
Towards the question of damages, even where defamation proceedings are tried before a jury, that s 22(3) provides:
If the jury finds that the defendant has published defamatory matter about the plaintiff and that no defence has been established, the judicial officer and not the jury is to determine the amount of damages (if any) that should be awarded to the plaintiff and all unresolved issues of fact and law relating to the determination of that amount.
Hence it appears that by the reforms delivered under the Defamation Act 2005, any determination as to the amount of damages to be paid to a successful plaintiff, now falls by s 22(3), within the province of the judge, and not the jury.
Notwithstanding s 22(3), counsel for the plaintiff pressed a strong objection to par 14(b), on the basis that a wholesale admission into evidence at trial via par 14(b) of the 59 prior publications the subject of the defendants' Schedule to par 14(b) of the amended defence, carried the potential to derail the orderly progress of a jury trial, by such material effectively 'poisoning the well' on liability issues, were it to be canvassed - such as for instance in the cross‑examination of the plaintiff at the trial (see ts 167 - 168).
Beyond invoking a general proportionality principle extracted from s 34 and an asserted breadth of matters now permitted to be taken into account in a mitigation of damages exercise via s 38(2), the defendants also invoke some observations by Pearson LJ in McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86; [1965] 2 WLR 45. There his Lordship had said:
[T]here is to my mind some significance in this long delay in bringing the libel actions. If the plaintiff had considered the libels upon him to be very serious matters, he would presumably have brought his libel actions at once … The fact that he was willing, for whatever reasons, to defer commencing all the libel actions for eleven months is some indication that he did not consider the injury to his reputation to be a highly serious matter (pages 96 - 97).
I was also referred by the defendants to like observations by Hasluck J in Boschetti v Carr [2002] WASC 211 [99], where his Honour concluded [99] by observing:
It is significant that there was some delay by Mr Boschetti in the prosecution of his claim.
That observation was rendered in a context of Hasluck J's lack of conviction that that plaintiff had been deeply hurt or distressed by the imputations contained in the publication as he had claimed. His Honour nevertheless proceeded, in accordance with the general law, to observe at [100]:
[I]rrespective of whether a plaintiff is profoundly affected by the defamation at a personal level, he is entitled to vindication of his reputation.
The defendants also refer to some observations by Haslam J, in a New Zealand Supreme Court decision, Mihaka v Wellington Publishing Co (1972) Ltd; Alister Taylor Publishing Ltd (third party) [1975] 1 NZLR 10, 20, where his Honour there observed:
On the other hand, despite references by one witness to the plaintiff's honesty, his record as a citizen has been most discreditable, for his persistent offending in violence calls for no embellishment. His own reaction in the first three months was so insignificant beyond indicating that his feelings had suffered but slight hurt. I can only conclude that the jury approached the matter on the wrong principles and despite being told in the summing up that damages should be moderate, they assessed them on a punitive footing.
Hence the defendants argue that as a necessary part of evaluating a successful plaintiff's entitlement to general damages in defamation, a court must necessarily be concerned with weighing up issues concerning grief, annoyance, hurt, anxiety and the sense of indignity or sense of outrage felt by a plaintiff, invoking references to Diplock LJ in McCarey v Associated Newspapers (107); by Brennan J applying those observations from McCarey in Carson v John Fairfax & Sons Ltd [1993] HCA 31; (1993) 178 CLR 44, 70 ‑ 71; Coyne v Citizen Finance Ltd [1991] HCA 10; (1991) 172 CLR 211, 216 (Mason CJ & Deane J); and by Hunt J (as he then was) in Chappell v Mirror Newspapers (Unreported, NSWSC, 24 July 1981) where his Honour referred to solatium for injury to a plaintiff's feelings as forming a part of the assessment of a successful plaintiff's damages award.

Prior publications with the same defamatory meanings: Determination

In my view the plaintiff's challenge against par 14(b), by reason of it violating the principle in Dingle must be upheld - with the consequence that par 14(b) should be struck out. Nevertheless, in reaching that conclusion, I make it clear that I am not thereby to be read as shutting the defendants out of a legitimate cross-examination of the plaintiff or his witnesses at the trial, concerning the issue of the extent of an injury to his feelings. Nor am I to be read as closing out the defendants from challenging the plaintiff, by reference to issues of delay, in commencing the present proceedings.
However, on my view the principle as articulated in Dingle's case remains the law in Western Australia and has not been abrogated, as the defendants would seem to suggest by the reforms carried into law by the Defamation Act 2005.
In particular, I do not evaluate s 34 in terms of its broad prescription of an appropriate and rational relationship as between the harm sustained by a plaintiff and the amount of damages awarded, to be at all novel. I do not assess s 34 to thereby open up greater opportunities for defendants to contend that a plaintiff has been previously wounded in their reputation under earlier defamatory publications of the same imputation and an earlier circulation of the same imputation as published by defendants - such that the level of damages to which a plaintiff would otherwise be entitled, is now to be diminished.

That outcome would be a very significant alteration to the law of defamation, in particular to principles so long and well-established, as articulated by Dingle. Likewise, nothing in s 38 of the Defamation Act 2005 clearly directs that consequence, in my view. But again, I also wish it to be clear that I am not closing the defendants out of a legitimate cross‑examination of the plaintiff at the trial upon any credibility issues that may legitimately arise concerning his evidence. In that context, I express no present view about whether a legitimate cross-examination might need to traverse into some or all of the materials captured by the defendants in their current schedule to par 14(b).
Nevertheless my assessment in the end is that the defendants' current plea under par 14(b) is crafted as something of a 'Trojan Horse' - to, in effect, circumvent the principles so well established by Dingle, requiring that generally speaking, damage to a plaintiff's reputation caused by other prior publications, is not to be taken account of.
I also record that nothing that I now say bears upon the defendants' right to raise at a trial to prove a plea of bad reputation in mitigation of the plaintiff's damages, if they wish to run that risk. However, the defendants, no doubt for good tactical reasons, have currently not taken that course under their defence pleadings to date.
In my view, par 14(b) must be struck out as failing to disclose any arguable defence ‑ and furthermore as embarrassing, given their present capacity to open the door at a trial to a wholesale admission of a significant amount of irrelevant evidence, and thereby to introduce irrelevant considerations, potentially into a jury trial. Even with the jury confined to assessing liability issues and (some) defences, that outcome is not acceptable.

Conclusion

In the end, pars 9 and 14(b) of the defence must be struck out. The plaintiff as the successful party upon this application should have his taxed costs of the application. The plaintiff's solicitors should file a minute of orders giving effect to these reasons (hopefully by consent following conferral with the defendants) within 14 days of their publication. To the extent that orders cannot be agreed, I will determine any residual disputation on the papers.