Neesham v 6PR Southern Cross Radio Pty Ltd
[2006] WASC 266
•5 DECEMBER 2006
NEESHAM -v- 6PR SOUTHERN CROSS RADIO PTY LTD & ORS [2006] WASC 266
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 266 | |
| Case No: | CIV:2308/2005 | 29 SEPTEMBER 2006 | |
| Coram: | LE MIERE J | 29/11/06 | |
| 35 | Judgment Part: | 1 of 1 | |
| Result: | Paragraphs 5, 10, 11, 13.1, 13.3, 17 - 19, 20.1, 20.3, 24, 25, 27.1, 27.3 and 31 - 34, of the statement of claim struck out Plaintiff given leave to re-plead | ||
| B | |||
| PDF Version |
| Parties: | HENRY THOMAS NEESHAM 6PR SOUTHERN CROSS RADIO PTY LTD RADIO PERTH PTY LTD AUSTRALIAN BROADCASTING CORPORATION |
Catchwords: | Tort Defamation "Strike in" application Whether a failure to plead entire transcript of broadcast is embarrassing or may prejudice or delay the fair trial Whether excluded material capable of altering meaning of broadcast Whether pleaded imputations capable of arising Whether pleadings related to aggravated or special damages groundless |
Legislation: | Workers' Compensation and Injury Management Act 1981 (WA) |
Case References: | ABC v Obeid [2006] NSWCA 231 Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 Clark v Ainsworth (1996) 40 NSWLR 463 Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 Markovic v White [2004] NSWSC 37 Morosi v 2GB [1980] 2 NSWLR 418 Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532 Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158 Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317 Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107 Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 Buckeridge v Walter [2006] WASCA 22 Burrows v Knightley (1987) 10 NSWLR 651 Burton v Shire of Bairnsdale (1908) 7 CLR 76 Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 Channel Seven Adelaide Pty Ltd v DJS (2006) 94 SASR 196 Cock v Hughes [2001] WASC 24 Dalgety Australia Ltd v Rubin, unreported; SCt of WA (Burt CJ); Library No 5485; 24 August 1984 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410 Hoad v Nationwide News Pty Ltd (1966) ATPR (Digest) 46-161 Jones v Skelton [1963] 3 All ER 952 Lawrence v McCusker [2006] WASC 173 Lewis v Daily Telegraph; sub nom Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234 March v E & MH Stramere Pty Ltd (1991) 171 CLR 506 McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Oracle International Pty Ltd v West Australian Newspapers Pty Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997 Parker v Copeman, unreported; SCt of WA (M Sanderson); Library No 6977; 16 December 1987 Random House Australia Pty Ltd v Abbott & Costello [1999] FCR 1538 Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 Ratcliffe v Evans [1892] 2 QB 524 Roberman v Australian Broadcasting Corporation [2002] WASC 301 Rogan-Gairdiner v Woolworths Ltd [2005] WASC 194 Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472 Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250 Seabrook v Allianz Australia Insurance Ltd [2005] QCA 58 State of New South Wales v Riley (2003) 57 NSWLR 496 State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Triggell v Pheeney (1951) 82 CLR 497 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71 World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
6PR SOUTHERN CROSS RADIO PTY LTD
First Defendant
RADIO PERTH PTY LTD
Second Defendant
AUSTRALIAN BROADCASTING CORPORATION
Third Defendant
Catchwords:
Tort - Defamation - "Strike in" application - Whether a failure to plead entire transcript of broadcast is embarrassing or may prejudice or delay the fair trial - Whether excluded material capable of altering meaning of broadcast - Whether pleaded imputations capable of arising - Whether pleadings related to aggravated or special damages groundless
(Page 2)
Legislation:
Workers' Compensation and Injury Management Act 1981 (WA)
Result:
Paragraphs 5, 10, 11, 13.1, 13.3, 17 - 19, 20.1, 20.3, 24, 25, 27.1, 27.3 and 31-34, of the statement of claim struck out
Plaintiff given leave to re-plead
Category: B
Representation:
Counsel:
Plaintiff : Mr J D MacLaurin
First Defendant : Mr A J Musikanth
Second Defendant : Mr P Mendelow
Third Defendant : Mr A T Dawson
Solicitors:
Plaintiff : Lavan Legal
First Defendant : Corrs Chambers Westgarth
Second Defendant : Jackson McDonald
Third Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
ABC v Obeid [2006] NSWCA 231
Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44
Clark v Ainsworth (1996) 40 NSWLR 463
Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503
Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6
Markovic v White [2004] NSWSC 37
Morosi v 2GB [1980] 2 NSWLR 418
Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532
Waites v Macquarie Radio Network Ltd [2006] NSWSC 507
(Page 3)
Case(s) also cited:
Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158
Anderson v Nationwide News Pty Ltd [1970] 1 NSWR 317
Beran v John Fairfax Publications Pty Ltd [2004] NSWCA 107
Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679
Buckeridge v Walter [2006] WASCA 22
Burrows v Knightley (1987) 10 NSWLR 651
Burton v Shire of Bairnsdale (1908) 7 CLR 76
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Channel Seven Adelaide Pty Ltd v DJS (2006) 94 SASR 196
Cock v Hughes [2001] WASC 24
Dalgety Australia Ltd v Rubin, unreported; SCt of WA (Burt CJ); Library No 5485; 24 August 1984
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd (2005) 221 ALR 186
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125
Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410
Hoad v Nationwide News Pty Ltd (1966) ATPR (Digest) 46-161
Jones v Skelton [1963] 3 All ER 952
Lawrence v McCusker [2006] WASC 173
Lewis v Daily Telegraph; sub nom Rubber Improvement Ltd v Daily Telegraph Ltd [1964] AC 234
March v E & MH Stramere Pty Ltd (1991) 171 CLR 506
McKew v Holland & Hannen & Cubitts (Scotland) Ltd [1969] 3 All ER 1621
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Oracle International Pty Ltd v West Australian Newspapers Pty Ltd, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997
Parker v Copeman, unreported; SCt of WA (M Sanderson); Library No 6977; 16 December 1987
Random House Australia Pty Ltd v Abbott & Costello [1999] FCR 1538
Rantzen v Mirror Group Newspapers Ltd [1994] QB 670
Ratcliffe v Evans [1892] 2 QB 524
Roberman v Australian Broadcasting Corporation [2002] WASC 301
Rogan-Gairdiner v Woolworths Ltd [2005] WASC 194
Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurstville) Pty Ltd [1971] 1 NSWLR 472
Sandilands v Channel Seven Sydney Pty Ltd [2005] NSWSC 1250
Seabrook v Allianz Australia Insurance Ltd [2005] QCA 58
(Page 4)
State of New South Wales v Riley (2003) 57 NSWLR 496
State of Queensland v Pioneer Concrete (Qld) Pty Ltd (1999) ATPR 41-691
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1
Triggell v Pheeney (1951) 82 CLR 497
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Whitfield v De Lauret & Co Ltd (1920) 29 CLR 71
World Hosts Pty Ltd v Mirror Newspapers Ltd [1976] 1 NSWLR 712
(Page 5)
1 LE MIERE J: The plaintiff has sued the defendants over allegedly defamatory radio broadcasts. The plaintiff complains of two broadcasts by the first defendant and one broadcast by each of the second and third defendants.
2 The plaintiff was, at all material times until August 2004, employed by the State of Western Australia as Chief Executive Officer of the Workers' Compensation and Rehabilitation Commission constituted under s 94(1) of the Workers' Compensation and Injury Management Act 1981 (WA) ("the Act"). The Commission was authorised to use, and operate under, the trading name WorkCover. WorkCover is the statutory authority responsible for the administration of the workers' compensation system in Western Australia.
3 Each defendant applied to strike out the statement of claim on a number of grounds.
4 After each defendant had applied to strike out the statement of claim, or parts of it, the plaintiff produced a minute of proposed re-amended substituted amended statement of claim. When the defendants' strike out applications came on for hearing it was agreed by all parties that the matter should be dealt with as an application to amend the statement of claim in terms of the minute of proposed re-amended substituted amended statement of claim, which I will hereafter refer to as the statement of claim.
The first defendant's first broadcast
5 The statement of claim pleads that on or about 7 October 2002 the first defendant broadcast throughout the State of Western Australia the words:
"People have lost confidence in the head of WorkCover, Harry Neesham. This is a fellow, that I have asked three times on your radio station when the deadline was for people to put … vulnerable people who were injured through no fault of their own … When the deadline was to put their claim. The deadline was 6 hours later … that man wouldn't answer the questions neither would Court. I warned your listeners that day that the deadline was 5.00 pm that day. Neesham, without going back to Court to the Parliament passed a regulation that back-dated the deadline to the night before. It is a scandalous state of affairs and something has to be done about it."
(Page 6)
6 The plaintiff pleads that in its natural and ordinary meaning the first defendant's first broadcast meant and was understood to mean that:
"1. the plaintiff is, and was, not competent or fit to hold the office of Chief Executive Officer of WorkCover;
2. the plaintiff had deliberately misused his position as Chief Executive Officer of WorkCover so as to deny workers their legitimate entitlements; and
3. the plaintiff is, and was, untrustworthy in the conduct of his position at WorkCover."
The "strike in" application
7 The first defendant submits that par 5 of the statement of claim pleads only some of the words spoken during the course of the broadcast. The first defendant submits that by failing to plead the context of the broadcast, as appears from the full transcript of that broadcast, the statement of claim has been rendered unreasonable, or alternatively so unfair, as to amount to an abuse of the process of this Court and should be struck out.
8 The learned author of "Civil Procedure Western Australia" at [20.13A.2] cites Tsvangirai v The Special Broadcasting Service [2002] NSWSC 532 as authority for the proposition that the defendant is entitled to have the plaintiff plead the proper context of the matter complained of (whether printed or transient) as it may affect the complexion of any imputation pleaded, the test being whether any of the omitted parts is reasonably capable of materially altering or qualifying the complexion of the plaintiff's imputation.
9 In the jargon of practitioners in the New South Wales Defamation List the defendant may bring a "strike in" application to, in effect, compel a plaintiff to include as part of the publication pleaded additional matter said to form an inseparable part of the publication. In substance the application is made for an order that the statement of claim be struck out on the ground that it is unfair and embarrassing to have omitted matter which forms part of the publication sued upon which was capable of being understood by the ordinary reasonable reader, viewer or listener as materially altering or qualifying the complexion of the imputations: Waites v Macquarie Radio Network Ltd [2006] NSWSC 507 at [1] per Nicholas J.
(Page 7)
10 The principles underlying a "strike in" application were recently addressed by the New South Wales Court of Appeal in ABC v Obeid [2006] NSWCA 231.
11 Tobias JA summarised the principles relating to "strike in" applications to include the following:
"Accordingly, a defendant is entitled to require the plaintiff to plead the full context of what is broadcast if that context is capable of materially affecting the imputations complained of by the plaintiff."
12 Hodgson JA agreed with the reasons of Tobias JA and added comments of his own including the following:
"In my opinion, a plaintiff in defamation proceedings cannot be compelled to include additional material in the Statement of Claim unless (1) this additional material is part of what can reasonably be regarded as one publication that includes the material relied on by the plaintiff, and (2) material relied on by the plaintiff must reasonably be regarded as part of a publication that includes the additional material."
13 Ipp JA agreed with Tobias JA and the additional comments of Hodgson JA.
14 I am not aware of any reported decision allowing a strike in application in this Court. The Court must be vigilant not to encourage unnecessary complexity and interlocutory applications in defamation actions. However, the justification for the rule that a plaintiff is obliged to include within his or her pleading every passage which materially alters or qualifies the complexion of the imputation complained of applies equally in Western Australia as in New South Wales, notwithstanding differences in substantive law and procedure. The justification for the rule lies in the principle that the effect of the matter complained of must be taken from the whole of what has been published. A statement of claim that pleads imputations arising from part of a broadcast but omits parts that materially alter or qualify the complexion of the imputations complained of, raises a false issue.
15 The words pleaded in par 5 of the statement of claim were spoken by Paul O'Halloran during a talk back radio programme hosted by Paul Murray. O'Halloran was described by Murray as a workers' compensation
(Page 8)
- lawyer. A transcript of the discussion between Murray and O'Halloran is Annexure 1 to these reasons.
16 The whole of the material contained in the transcript can reasonably be regarded as one publication. It is one conversation between Murray and O'Halloran. Their discussion relates to the workers' compensation system in Western Australia and changes to the system planned by the government. The material in the transcript that is omitted from the words pleaded in the statement of claim (the additional material) is an inseparable part of the broadcast.
17 The additional material is capable of affecting the sense or imputations conveyed by the matter which the plaintiff has pleaded. The additional material forms part of the proper context of the matter complained of. It may affect the complexion of the imputations pleaded. Accordingly, the plaintiff is required to plead the whole of the conversation between Murray and O'Halloran, including Murray's introductory words which were:
"Well, we are still talking about the planned changes … the State Government's planned changes to the workers compensation system. We started on that on Friday. Paul O'Halloran, workers compensation lawyer, is on the line. G'day Paul."
18 Those words outlined the subject matter of the subsequent conversation and the fact that O'Halloran is a "workers compensation lawyer".
19 Paragraph 5 of the statement of claim will be struck out on the grounds that it is embarrassing or may prejudice or delay the fair trial of the action. It is embarrassing because it raises a false issue. It may prejudice or delay the fair trial of the action because the defendant is entitled to have the full context of the publication placed before the tribunal of fact.
First defendant's second broadcast – are imputations capable of arising?
20 The plaintiff pleads in par 26 of the statement of claim:
"On or about 7 November 2002 the first defendant broadcast throughout the State of Western Australia, upon its radio station, the words:
- 'Hi, I'm Paul O'Halloran. WorkCover's put countless acts and claims at risk. Victims could lose their homes. Five hundred Supreme Court appeals all dealing with WorkCover's latest stuff-ups.
While our workers compensation system burns, Minister John Kobelke fiddles. And, WorkCover boss, Harry Neesham's response?' O'Halloran's got it all wrong. He says. There aren't five hundred appeals, only one hundred. Ah, only one hundred. Are these people for real, or what? There's more. When Neesham was confronted about back-dating a deadline by 24 hours to stop you claiming compensation, he doesn't deny it. He uses a classic Nuremburg defence: 'I was just following orders'. I wonder whose orders. But wait, there's more: Kobelke's response to the appeals? Ooh, that's a tricky one; Kobelke's response to the back-dating? 'Don't ask me, I wasn't the Minister when Neesham did it'.
I enjoyed watching Yes Minister on TV. And if the plight of countless innocent victims wasn't so serious this lunacy would all be laughable. But it's not, is it; Dr Gallop?"
21 In par 27 of his statement of claim the plaintiff pleads that the words set out in par 26 give rise to the following imputations:
"27.1 The plaintiff is, and was, not competent or fit to hold the office of Chief Executive Officer of WorkCover;
27.2 the plaintiff had deliberated misused his position as Chief Executive Officer of WorkCover so as to deny workers their legitimate entitlements; and
27.3 the plaintiff is, and was, untrustworthy in the conduct of his position at WorkCover."
22 The first defendant submits that the words comprising the first defendant's second broadcast are incapable of giving rise to any of the three imputations pleaded in par 27 of the statement of claim. The first defendant submits that put at its highest, any reasonable listener of average intelligence would have understood the words broadcast to have meant, simply, that the plaintiff was a man who followed orders given to him by his superiors. The first defendant says that there is nothing defamatory in that.
(Page 10)
23 The first defendant's second broadcast is capable of giving rise to an imputation to the effect that the plaintiff is incompetent. The reference to "WorkCover's latest stuff ups" and "while our compensation system burns, Minister John Kobelke fiddles" when followed immediately by a derisory reference to the response of the WorkCover boss, the plaintiff, might reasonably be understood by ordinary reasonable listeners to mean that the plaintiff is incompetent.
24 The imputation of unfitness in the sense of impropriety or lack of moral rectitude is also capable of arising from the first defendant's second broadcast. The broadcast says that when the plaintiff was confronted about back-dating a deadline by 24 hours to stop people claiming compensation he did not deny it, he used a classic Nuremburg defence: "I was just following orders". The plaintiff is said to have back-dated a deadline by 24 hours to stop people claiming compensation.
25 It is generally known and I take judicial notice that the term "Nuremburg defence" was originally coined during the Nazi war crime trials at Nuremburg after World War II. Nazi war criminals who were charged with genocide, mass murder, torture and other atrocities used the defence "I was only following orders" so frequently that the argument became known generically as "the Nuremburg defence". The Nuremburg defence is a defence that essentially states that the defendant "was only following orders" and is therefore not responsible for their crimes. The defence only arises if the accused person has committed a crime or engaged in wrongful or reprehensible conduct. To say of a person that they use the Nuremburg defence may in its context be understood to be saying that the person has committed some crime or engaged in reprehensible conduct for which they seek to escape responsibility by saying they were only following orders.
26 After referring to the Nuremberg defence the broadcast says that the Minister's response to the back-dating was to say that he was not the Minister when the plaintiff did it. That might be understood by an ordinary, reasonable listener to mean that the Minister thought that what the plaintiff had done was deserving of criticism and the Minister was trying to distance himself from such conduct. These matters taken together in the context of the broadcast as a whole are capable of being understood by an ordinary reasonable listener as being intended to convey the meaning that the plaintiff had acted improperly and reprehensibly in back-dating the deadline and was unfit to be the boss of WorkCover.
(Page 11)
27 The broadcast referred to the plaintiff as the "WorkCover boss". That would be capable of conveying to the ordinary reasonable listener that the plaintiff was the Chief Executive Officer of WorkCover. I would not strike out par 27.1 on the ground that the imputation pleaded is not capable of arising.
28 The first defendant further submits that par 27.1 is embarrassing. "Not competent" and "not fit" are different notions. Incompetence connotes lack of qualifications, ability or capacity. Unfitness may have similar connotations or may have connotations of being unfit by reason of lack of propriety or moral rectitude. Having regard to the words broadcast it is not clear whether the imputation is one of incompetence and unfitness in the sense of lack of qualifications, ability or capacity or whether the imputation is intended to also include unfitness by reason of lack of propriety or moral rectitude. The pleaded imputation is embarrassing for that reason. Furthermore, if the phrase "not competent or fit" is intended to include both the notions of lack of qualifications, ability or capacity and unfitness by reason of lack of propriety or moral rectitude then the pleading is embarrassing. Distinct imputations should be separately and precisely pleaded. For those reasons imputation 27.1 will be struck out.
29 The words complained of are capable of giving rise to the meaning that the plaintiff has misused his position as Chief Executive Officer of WorkCover to deny workers their entitlements, that is the imputation pleaded in par 27.2.
30 The thrust of the words complained of is that the plaintiff did something discreditable that stopped people claiming compensation. That follows statements to the effect that victims could lose their homes because of the conduct of WorkCover. In this context the reference to victims might reasonably be understood to be a reference to people who have been denied compensation by harsh, unfair or oppressive conduct of WorkCover and in particular its boss, the plaintiff.
31 Imputation 27.3 raises the notion of untrustworthiness. Counsel for the plaintiff says that the overall tenor of the broadcast is that the plaintiff cannot be trusted; he has performed acts inconsistent with the idea of being trustworthy and they have damaged innocent people. Counsel for the plaintiff said that the broadcast conveys the meaning that the plaintiff is untrustworthy in the sense that he is willing to back-date deadlines to stop people from receiving their entitlements. Counsel says that that imputation is distinct from imputation 27.2 because it is broader in that it
(Page 12)
- goes to the "stuff ups". Counsel says that the sense is that the plaintiff cannot be trusted in his role.
32 If the imputation of untrustworthiness is intended to convey the notion that the plaintiff is responsible for "stuff ups" and he is willing to back-date deadlines to stop people from receiving their entitlements, the imputation is not distinct from imputations 27.1 and 27.2. The broadcast does not say that the plaintiff is not worthy of trust or confidence for some reason other than being responsible for "stuff ups" and back-dating a deadline to stop people claiming compensation. If the imputation is intended to convey the meaning of being untrustworthy in some other sense then it is not capable of arising from the broadcast. If the imputation is intended to convey the meaning of untrustworthiness by reason of "stuff ups" or incompetence or back-dating a deadline to deny people compensation then it is not an imputation distinct from imputations 27.1 and 27.2. Imputation 27.3 will be struck out.
Second defendant's broadcast – strike in application
33 In par 12 of the statement of claim the plaintiff pleads that on or about 7 October 2002 the second defendant broadcast upon its radio station the same words as those comprising the first defendant's second broadcast.
34 The second defendant submits that par 12 of the statement of claim should be struck out because the plaintiff has not pleaded the context of the broadcast. The second defendant says that the words broadcast were, or were in the course of, an advertisement and that the statement of claim should plead that the words were broadcast as, or in the course of, an advertisement.
35 I do not accept that submission. The plaintiff has pleaded the words broadcast and the occasion of the broadcast. The second defendant does not claim that there were any other words spoken either immediately preceding or immediately after the words complained of which affect its context. In these circumstances there is no obligation upon the plaintiff to characterise the nature of the broadcast.
Second defendant's broadcast – are imputations capable of arising?
36 In par 13 of the statement of claim the plaintiff pleads that the second defendant's broadcast gave rise to the same imputations as those pleaded in subparagraphs 27.1, 27.2 and 27.3 in relation to the first defendant's second broadcast. The second defendant submits that the words
(Page 13)
- complained of are not capable of giving rise to those imputations. Imputations 13.1 and 13.3 will be struck out for the same reasons as imputations 27.1 and 27.3. Imputation 13.2 is not so untenable that it should be struck out.
The third defendant's broadcast – strike in application
37 In par 19 of the statement of claim the plaintiff pleads:
"On or about 10 October 2002 the third defendant broadcast throughout the State of Western Australia, upon it's radio station, the words:
'I think John Kobelke must think we all fell off a Christmas tree yesterday. He's said that the devil's very much in the detail and le [sic] me introduce all your listeners to the devil. Firstly he talked about weekly payments. He said there been a big enhancement there. Well what he doesn't say is that enhancement is very small and it only last for four weeks and then your weekly payments are slashed.
He talks about injury management, which is a nice way of talking about rehabilitation. Well I can tell you in ten years John, not one of my clients has ever gained a job from this so-called injury management system they have. It's often used as a backdoor means of destroying your common law claim by insurance companies.
I also note sadly that there's not one word about safety in the whole package. Not one at all. Despite the rally that was recently held on Parliament steps, despite the fact that 50 workers have died in recent years because of unsafe working conditions. He talks about conciliation and WorkCover. We often say in the progression [sic] that WorkCover neither works nor gives you any cover. It's been a disaster for the last ten years. It's literally ruined people's lives. There have been hundreds of complaints a week about WorkCover. We now know that it's financed by insurance companies and we believe it's actually a frnt [sic] for them. The medical panel up there which are paid $1200 per hour are often stacked with biased insurance doctors.
- And at the top of it John it has someone in the name of Harry Neesham, who his claim to fame in recent years was to back-date a deadline on, on live radio in Perth … he back-dated the deadline to stop people claiming later that day. No how can anyone have trust in a system when this is what they face?'"
38 The words complained of were spoken by O'Halloran in the course of the third defendant's drive programme hosted by John McNamara. A transcript of O'Halloran's conversation with McNamara is Annexure 2 to these reasons.
39 The third defendant submits that the plaintiff should have pleaded the whole of the material in the transcript, not merely the words set out in par 19 of the statement of claim. The third defendant submits that the words in the transcript but not in par 19 of the statement of claim (the additional material) is capable of affecting, qualifying or altering the meaning of the broadcast.
40 The additional material is part of what can reasonably be regarded as one publication that includes the material pleaded in par 19 of the statement of claim. The conversation between McNamara and O'Halloran is a continuous conversation with a clear beginning and end. The conversation has broadly speaking one subject matter – the workers' compensation system in Western Australia.
41 Whether or not the additional material affects the meaning or sense or imputations conveyed by the matter which the plaintiff has pleaded is a matter for the tribunal of fact. However, the additional material is capable of affecting the meaning or sense or imputations conveyed by the matter which the plaintiff has pleaded and therefore the plaintiff is entitled to have the whole of the conversation between McNamara and O'Halloran put before the tribunal of fact.
42 The additional material includes McNamara's introduction to the segment in which he says that he had previously spoken to the Employment Minister, Kobelke, about government proposals to change the workers' compensation system and was now going to speak to O'Halloran, a long time critic of changes to the workers' compensation system by the former government and of the current government's proposed changes. The additional material also includes, after the pleaded extract, O'Halloran's statement that WorkCover has to go and Kobelke is not listening to the message and asks why he is protecting WorkCover.
(Page 15)
- O'Halloran then went into a detailed criticism of the workers' compensation system for its failure to deliver proper benefits to injured workers in the course of which O'Halloran repeatedly criticises Kobelke and critically mentions Premier Gallop and Kierath, who it might be inferred from the broadcast was a member of the former government. O'Halloran says that WorkCover receives hundreds of complaints a week, is a diabolic basket case and has to go and Kobelke and Gallop should get that into their heads.
43 That additional material is capable of affecting the imputations arising from the broadcast. The third defendant might argue that the broadcast criticises and is aimed at the present and former governments and not the plaintiff and hence the imputations of incompetence and unfitness would be understood by an ordinary reasonable listener as imputations of incompetence and unfitness of the government and former government members mentioned and not imputations of incompetence and unfitness of the plaintiff.
44 The plaintiff should plead the whole of the conversation between McNamara and O'Halloran. Paragraph 19 of the statement of claim will be struck out on the ground that it is embarrassing or tends to prejudice or delay the fair trial of the action.
Third defendant's broadcast – are imputations capable of arising?
45 In par 20 of the statement of claim the plaintiff pleads that the third defendant's broadcast gives rise to the following imputations:
"20.1 the plaintiff is, and was, not competent or fit to hold the office of Chief Executive Officer of WorkCover;
20.2 the plaintiff had deliberately misused his position as Chief Executive Officer of WorkCover so as to deny workers their legitimate entitlements; and
20.3 the plaintiff is, and was, untrustworthy in the conduct of his position at WorkCover."
46 Imputation 20.1 is embarrassing for the same reasons as the imputations pleaded in par 27.1 and par 13.1.
47 Furthermore, the third defendant submits that the third defendant's broadcast is not capable of giving rise to the imputation that the plaintiff is, and was, not competent or fit to hold the office of Chief Executive Officer of WorkCover.
(Page 16)
48 The plaintiff says that the imputation arises from the extract of the broadcast that is pleaded in par 19. The pleaded extract commences with a criticism of John Kobelke. The additional material discloses that Kobelke was the Employment Protection Minister and that McNamara had previously discussed with Kobelke proposals to change the workers' compensation system in Western Australia. The pleaded extract criticises both the existing workers' compensation system and the proposed changes. The speaker says that WorkCover has been a disaster for the last 10 years, it has ruined people's lives and there have been hundreds of complaints a week about WorkCover. The speaker says that they now know that WorkCover is financed by insurance companies and they believe it’s a front for them. The speaker then says that the medical panel is often stacked with biased insurance doctors. The speaker then refers to the plaintiff. The speaker says that the plaintiff's claim to fame was to back-date a deadline on live radio in Perth. He back-dated the deadline to stop people claiming later that day. The speaker then asks rhetorically how anyone can have trust in a system when this is what they face.
49 The broadcast does not say expressly that the plaintiff is incompetent. However, an imputation will only be struck out on the ground that the words complained of are incapable of supporting it if the contention is so obviously unfounded that it cannot possibly succeed or is manifestly groundless.
50 However, I am not satisfied that the pleaded imputation is so obviously unfounded that it cannot possibly succeed. The publication is a radio broadcast, a transient publication.
51 The ordinary reasonable listener of publications in transient form such as a radio broadcast has no opportunity to reconsider the whole publication at leisure and check back and change first impressions. The ordinary listener does not analyse and scrutinise the words spoken but rather forms a general impression of the meaning from the words used. The impression which is conveyed by what is usually only a fleeting episode may not be the same as that which is conveyed by a reading of the transcript. To judge the meaning and impact of what was said after repeated scrutiny and close analysis can be quite unreal: Gorton v Australian Broadcasting Commission (1973) 1 ACTR 6 at 11; Morosi v 2GB [1980] 2 NSWLR 418 at 420.
52 In the broadcast the speaker says that WorkCover has been a disaster for the last 10 years and has ruined people's lives and there have been hundreds of complaints a week about WorkCover. The broadcast is
(Page 17)
- capable of giving rise to an impression of incompetence. The plaintiff is identified as being the man at the top of it. The imputation that the plaintiff is incompetent is not so obviously unfounded that it cannot succeed.
53 The imputation that the plaintiff is not fit to hold office is not so obviously unfounded that it cannot possibly succeed. The references to WorkCover having been a disaster, having ruined people's lives, having been the subject of hundreds of complaints a week, together with the allegations that WorkCover is a front for insurance companies and that the medical panel is often stacked with biased insurance doctors is capable of being understood by an ordinary reasonable listener as conveying the meaning that the boss, or Chief Executive Officer, of WorkCover is not fit to hold that position. Furthermore, the broadcast then speaks of the plaintiff having back-dated the deadline to stop people claiming compensation and says that one cannot have trust in the system. All of that is reasonably capable of being understood by a reasonable listener to give rise to the meaning that the boss of WorkCover is not fit to hold that position.
54 However, imputation 20.1 is embarrassing and will be struck out for the same reasons as imputations 27.1 and 13.1.
55 The imputation pleaded in par 20.2 is that the plaintiff had deliberately misused his position as Chief Executive Officer of WorkCover so as to deny workers their legitimate entitlements. The imputation is not incapable of arising. The publication is a transient one. The impression given to an ordinary reasonable listener by the references to WorkCover being a disaster that has ruined people's lives and has given rise to hundreds of complaints a week, together with the allegation that it is a front for insurance companies and that the medical panel is often stacked with biased insurance doctors when further combined with the statement that the plaintiff back-dated the deadline to stop people claiming and the rhetorical question of how anyone can have trust in the system might reasonably be understood by a reasonable listener to convey the meaning that the boss of WorkCover had misused his position so as to deny workers their legitimate entitlements. Paragraph 20.2 will not be struck out.
56 The imputation pleaded in par 20.3 is that the plaintiff is, and was, untrustworthy in the conduct of his position at WorkCover. In the third defendant's broadcast, after saying that the plaintiff had back-dated a deadline to stop people claiming compensation, the speaker asks
(Page 18)
- rhetorically how anyone can have trust in a system when this is what they face. The speaker says in effect that no one can have trust in the system, not that no one can have trust in the plaintiff. It is true that the plaintiff is described as being at the top of "it" that is, WorkCover or the workers' compensation system in Western Australia, but when the whole of the broadcast is considered it would be strained or forced or utterly unreasonable to interpret the statement that no one can have trust in the system to mean that the plaintiff is untrustworthy. That is so notwithstanding that the publication is a transient broadcast. The broadcast says that no one can have trust in the system because it has failed to provide a proper or adequate compensation to injured workers. That does not reasonably give rise to the imputation that the head of the system is himself untrustworthy.
57 In so far as the imputation is intended to convey the meaning that the plaintiff is untrustworthy in the sense of or because he has misused his position to deny workers their legitimate entitlements by back-dating a deadline or otherwise or because he has presided over a system that does not work adequately the imputation is not sufficiently distinct from the imputations pleaded in par 20.1 and par 20.2. Imputation 20.3 shall be struck out.
Aggravated damages
58 The plaintiff claims aggravated damages against each of the defendants in respect of each of the subject broadcasts. In relation to the first defendant's first broadcast the plaintiff pleads:
"10 The First Defendant's First Broadcast was lacking in bona fides, was unjustifiable and unreasonable in a manner that has aggravated the hurt, distress and damage to the plaintiff, in that the first defendant has failed, alternatively refused, to apologise to the plaintiff, despite an apology being self-evidently called for and requested by letter from Bennett & Co to the first defendant dated 4 November 2005.
11 The matters referred to in paragraph 10 hereof were so understood and appreciated the plaintiff, thereby aggravating the hurt and damage to the plaintiff, and the plaintiff claims aggravated damages against the first defendant."
(Page 19)
59 The plaintiff claims aggravated damages in essentially the same terms in relation to the second defendant's broadcast, the third defendant's broadcast and the first defendant's second broadcast in pars 17, 18, 24, 25, 31 and 32 of the statement of claim.
60 Each of the defendants applies to strike out the paragraphs of the statement of claim claiming aggravated damages on the grounds that the pleading is manifestly groundless.
61 Each of the letters referred to in pars 10, 17, 24 and 31 of the statement of claim are in substantially the same terms. The letter to the first defendant refers to the radio broadcasts by the first defendant complained of in the statement of claim and says that they are defamatory of the plaintiff. The letter says that the plaintiff has taken some time to consider his position and that until recently he had been prevented from taking action to prevent any further defamations by the position which he held at WorkCover. The letter says that it is now clear to the plaintiff that the statements made by O'Halloran, and the first defendant's radio broadcasts, have retained currency and that the plaintiff was forced into early retirement in part by the publications by the first defendant. The letter says that the plaintiff has resolved to issue defamation proceedings against the first defendant and encloses the writ of summons. The letter concludes:
"We invite you to contact us with a suitable offer of recompense to our client without the need to further pursue formal proceedings. Alternatively, we invite you to nominate solicitors instructed to accept service on your behalf so that we may attend to formal service of the writ."
62 A number of things should be observed about the letter. First, it was written approximately three years after the radio broadcast complained of. Secondly, it was written after the issue of the writ. Thirdly, there was no express request for an apology. Fourthly, the letter invited the defendant to make a suitable offer of recompense to the plaintiff. The letter does not expressly or impliedly request an apology. For that reason the pleaded words "and requested by letter from Bennett & Co to the [first/second/third defendant] dated 4 November 2005" will be struck out.
63 The plea in par 10 of the statement of claim, and the corresponding pleas in relation to the other broadcasts complained of, might be understood to mean that the broadcast complained of was lacking in bona fides, was unjustifiable and unreasonable in a manner that has aggravated
(Page 20)
- the hurt, distress and damage to the plaintiff irrespective of the failure of the plaintiff to apologise. However, in the course of argument counsel for the plaintiff disavowed any such meaning. Counsel said that the plea is that the hurt to the plaintiff has been aggravated by the failure of the defendant to apologise in circumstances where an apology was self-evidently called for. If that is the intention of the plea then it should be drafted more clearly. At present, the defendants might reasonably understand the plea to be complaining that the broadcast itself was lacking in bona fides, unjustifiable and unreasonable before, and without reference to, any failure to apologise. For that reason, the present pleading is embarrassing.
64 The mere failure to make an unsolicited apology will not usually justify an award of aggravated damages. In Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44 at 66 Mason CJ, Deane, Dawson and Gaudron JJ said that the absence of an apology may be a relevant factor in establishing that a defendant is motivated by a desire to injure the plaintiff but that does not mean that the want of an apology itself aggravates the plaintiff's injury. If the absence of an apology forms part of, or is accompanied by, a course of unjustifiable and improper conduct on the part of the defendant, it may aggravate damages: Clark v Ainsworth (1996) 40 NSWLR 463. A refusal to apologise may give rise to aggravated damages where the refusal is unjustifiable or improper: Clark v Ainsworth (supra), Cotter v John Fairfax Publications Pty Ltd [2003] NSWSC 503 at [167]; Markovic v White [2004] NSWSC 37 at [26].
65 Counsel for the plaintiff submitted that the plaintiff's pleaded claim for aggravated damages was sufficient because the plaintiff pleaded that the defendant had failed to apologise despite an apology being self-evidently called for. Counsel for the plaintiff accepted that the defendants were entitled to know the basis for the allegation that an apology was self-evidently called for but submitted that that should be the subject of particulars. The paragraphs of the statement of claim that plead aggravated damages should be struck out for the reasons which I have earlier given. The defendants are entitled to particulars of the allegation that an apology was self-evidently called for and they should be provided in any amended statement of claim.
Special damages
66 In par 33 of the statement of claim the plaintiff claims special injury arising from the plaintiff's contract for services with WorkCover having
(Page 21)
- not being renewed upon its expiry on or about 10 August 2004. The plaintiff pleads that he had an expectation at the time of the first defendant's broadcast and thereafter until on or about 10 August 2004, that his contract for services with WorkCover would be renewed for a further period of three years. The basis of the claim for special damages arising from the plaintiff's contract not being renewed is set out in par 33.3 of the statement of claim:
"33.3 on or about 10 August 2004, after the plaintiff was advised that his contract for services with WorkCover was not to be renewed, Mr John Kobelke, the then Minister for Workers Compensation (the Minister responsible for WorkCover) advised the plaintiff, in substance, that:
33.3.1 he (the Minister) was happy with the advice that the plaintiff had earlier provided him in his capacity as Chief Executive Officer of WorkCover;
33.3.2 he (the Minister) believed that the plaintiff was competent to perform the role of Chief Executive Officer of WorkCover;
33.3.3 the plaintiff had performed well, over the period of his existing contract, in respect of all key performance indicators;
33.3.4 he (the Minister) was not willing to keep the plaintiff on as the chief Executive Officer of WorkCover because public statements made by one Paul O'Halloran, and reproduced in the First Defendant's First Publication, the First Defendant's Second Publication, the Second Defendant's Publication and the Third Defendant's Publication, suggested to the minister that O'Halloran would act so as to cause the Minister's removal from the office of Minister, if the plaintiff was retained as Chief Executive Officer of WorkCover or had any role with WorkCover whatsoever."
(Page 22)
- plaintiff must prove that the defamatory publication is both the cause of the financial loss and that the loss is a foreseeable consequence of publication.
68 The effect of the pleading in par 33.3 of the statement of claim is that the Minister did not believe the allegations against the plaintiff made in each of the broadcasts complained of, believed that the plaintiff was competent to perform the role of Chief Executive Officer of WorkCover and had performed well in that role. The defendants submit that in those circumstances any loss suffered by the plaintiff in not having his contract renewed was not caused by the publications complained of. I do not accept that submission. The fact that a person who ceases to employ the plaintiff, or do business with him, or associate with him as a result of the publication did not believe the allegation to be true is irrelevant, provided his behaviour is foreseeable. It is conceivable that people may not wish to associate with a person who has been defamed irrespective of their own assessment of the allegations. It is not for me to determine on a strike out application whether or not it is foreseeable that the Minister would decide not to renew the plaintiff's contract because of the allegations against him even though the Minister did not himself believe the allegations. It is only necessary to decide that the plea is not untenable. I would not strike out the pleading merely on the ground that the Minister did not himself believe the allegations made against the plaintiff in each of the broadcasts complained of. It is for the tribunal of fact to determine whether the Minister's failure to renew the plaintiff's contract was a foreseeable consequence of the publications complained of, notwithstanding that the Minister did not himself believe the allegations.
69 However, the pleading in par 33.3.4 is confusing and not tenable in its current form. The paragraph does not plead that the Minister did not renew the plaintiff's contract because of the broadcasts complained of. The pleading asserts that the Minister did not renew the plaintiff's contract because public statements made by O'Halloran and reproduced in the broadcasts complained of suggested to the Minister that O'Halloran would act so as to cause the Minister's removal from the office of Minister if the plaintiff's contract was renewed. It is not foreseeable that the Minister would not renew the plaintiff's contract because otherwise O'Halloran would cause the Minister to be removed from office. It is not within the power of O'Halloran to remove the Minister from the office of Minister. It is not explained how O'Halloran could cause the Minister's removal from that office. Furthermore, the pleading presently asserts that unidentified public statements made by O'Halloran acted on the Minister's mind to cause him not to renew the plaintiff's contract, albeit those public
(Page 23)
- statements were reproduced in the broadcasts complained of. In argument, counsel for the plaintiff indicated that it was intended to plead that the broadcasts themselves had acted on the Minister's mind so as to cause him to not renew the plaintiff's contract. If that is the plaintiff's case then it is sufficiently tenable to not be struck out. However, that is not what the plaintiff has pleaded. In its present form the pleading is untenable and will be struck out.
70 In par 34 the plaintiff pleads special damages resulting from not having been appointed as chairperson of WorkCover when he had an expectation at the time of the first defendant's first broadcast that he would be appointed. Subparagraph 34.3 pleads that after the plaintiff was advised that his contract for services with WorkCover was not to be renewed and that he was not to be appointed chairperson of WorkCover, the Minister advised him in substance that:
"34.3.1 he (the Minister) believed that the plaintiff was competent to perform the role of Chairperson of the WorkCover Commission;
34.3.2 he (the Minister) was not willing to appoint the plaintiff as the Chief Executive Officer of WorkCover because public statements made by one Paul O'Halloran, and reproduced in the First Defendant's First Publication, the First Defendant's Second Publication, the Second Defendant's Publication and the Third Defendant's Publication suggested to the Minister that O'Halloran would act so as to cause the Minister's removal from the office of Minister, if the plaintiff was appointed as Chairperson of the WorkCover Commission, or had any role with WorkCover whatsoever."
71 Subparagraph 34.3.2 is untenable for the same reasons as subparagraph 33.3.4. Furthermore, 34.3 pleads what the Minister advised the plaintiff. The issue is whether the Minister did not appoint the plaintiff as chairperson of WorkCover, if that is the case, as a result of the publication and if so whether it was foreseeable that the Minister would act in that way. The pleading in its present form does not directly address those issues. The pleading will be struck out. However, the plaintiff may be able to plead a tenable case that he was not appointed chairperson of WorkCover because of the publications complained of, notwithstanding that the Minister did not believe the allegations in the publications.
(Page 24)
Conclusion
72 For the reasons stated pars 5, 10, 11, 13.1, 13.3, 17 – 19, 20.1, 20.3, 24, 25, 27.1, 27.3 and 31 - 34 will be struck out. The plaintiff will have leave to replead.
(Page 25)
(Page 26)
(Page 27)
(Page 28)
(Page 29)
(Page 30)
(Page 31)
(Page 32)
(Page 33)
(Page 34)
(Page 35)
4
34
1