Neesham v 6PR Southern Cross Radio Pty Ltd [No 3] - [2010] WASC 161

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: NEESHAM -v- 6PR SOUTHERN CROSS RADIO PTY LTD [No 3] [2010] WASC 161

CORAM: LE MIERE J

HEARD: 21 APRIL 2010

DELIVERED : 1 JULY 2010

FILE NO/S: CIV 2308 of 2005

BETWEEN: HENRY THOMAS NEESHAM
Plaintiff
AND
6PR SOUTHERN CROSS RADIO PTY LTD
First Defendant
RADIO PERTH PTY LTD
Second Defendant
AUSTRALIAN BROADCASTING CORPORATION
Third Defendant

Catchwords:

Practice and procedure - Defamation - Application for leave to amend statement of claim - Whether an abuse of process - Whether discloses no reasonable cause of action or may prejudice, embarrass or delay the fair trial of action - Turns on own facts

Legislation:

Nil

Result:

Leave granted to amend statement of claim

Category: B

Representation:

Counsel:

Plaintiff:     Mr M L Bennett
First Defendant             :     Mr S M Davies SC
Second Defendant         :     Mr S M Davies SC
Third Defendant           :     Mr B H Taylor

Solicitors:

Plaintiff:     Lavan Legal
First Defendant             :     Corrs Chambers Westgarth
Second Defendant         :     Jackson McDonald
Third Defendant           :     Talbot & Olivier

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

Commonwealth v Albany Port Authority [2006] WASCA 185
Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266
Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72
Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 (S)
Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139
Ratcliffe v Evans [1892] 2 QB 524
Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457

LE MIERE J: The plaintiff applies for leave to amend his statement of claim in accordance with the minute of further substituted statement of claim dated 30 October 2009 (the Minute). The defendants object to some of the proposed amendments.

Relevant procedural history

The plaintiff filed his statement of claim on 31 May 2006 and amended it on 17 July 2006. Each of the defendants applied to strike out the plaintiff's amended statement of claim. Those strike out applications were heard and judgment delivered on 29 November 2006: Neesham v 6PR Southern Cross Radio Pty Ltd [2006] WASC 266 (Neesham No 1). I made orders striking out paragraphs of the amended statement of claim pleading imputations, aggravated damages and special damages and granted to the plaintiff leave to re‑plead.
The plaintiff filed an amended substituted statement of claim on 13 April 2007 and a further substituted statement of claim on 11 May 2007. Each of the defendants applied to strike out paragraphs of the further substituted statement of claim of 11 May 2007. Those strike out applications were heard and the judgement delivered on 14 May 2008: Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 (Neesham No 2). In my reasons I stated that certain paragraphs of the further substituted statement of claim should be struck out. Following delivery of those reasons the defendants did not move for orders that the specified paragraphs of the further substituted statement of claim be struck out. Instead, at the request of all of the parties, I ordered that the issues of liberty to file any further amended statement of claim be referred to a special appointment. The parties subsequently conferred in relation to further amended statements of claim proposed by the plaintiff. However, no agreement was reached. The special appointment to hear the outstanding matters took place on 22 May 2009.
Prior to the hearing of the special appointment the plaintiff filed and served a minute of proposed further substituted statement of claim dated 31 March 2009 (the 31 March 2009 Minute). The first and second defendants submitted that the plaintiff should not have leave to amend the statement of claim in accordance with the 31 March 2009 Minute or at all. The third defendant submitted that the plaintiff should not have leave to amend his statement of claim in accordance with the 31 March 2009 Minute but did not oppose liberty to re‑plead if and when the plaintiff presented a proposed further amended statement of claim in proper form. The plaintiff did not ask for leave to amend his statement of claim in accordance with the 31 March 2009 Minute. Counsel for the plaintiff explained that the plaintiff had filed and served the 31 March 2009 Minute to show that the plaintiff could plead a proper statement of claim and should be given leave to re‑plead.
I delivered reasons for judgment on 16 October 2009: Neesham v 6PR Southern Cross Radio Pty Ltd [No 2] [2008] WASC 72 (S) (Neesham No 2 (S)). I found that the imputations pleaded in [6], [11], [16] and [21] of the 31 March 2009 Minute were embarrassing and the plaintiff should not be given leave to amend the statement of claim in accordance with the 31 March 2009 Minute. However, I held that each of the broadcasts complained of are capable of giving rise to meanings defamatory of the plaintiff and in those circumstances the plaintiff should have leave to re‑plead his statement of claim so as to plead the imputations in a proper form. Paragraphs 25 and 26 of the 31 March 2009 Minute pleaded special damages. I found that the pleas in [25] and [26] in part contained irrelevant material and in part pleaded the plaintiff's case at too high a level of generality. I stated that I would not give the plaintiff leave to amend his statement of claim in accordance with the 31 March 2009 Minute but the plaintiff should have leave to apply to amend his statement of claim in accordance with a minute to be brought in by the plaintiff. I struck out [6], [10] ‑ [12], [14], [18] ‑ [20], [22], [26] - [28], [30] and [34] - [39] of the further substituted statement of claim of 11 May 2007.

The current application

The plaintiff applies to amend his statement of claim by amending [6], [11], [16], [21], [25] and [26]. Paragraphs 6, 11, 16 and 21 plead the imputations said to arise from the first defendant's first broadcast, the second defendant's broadcast, the third defendant's broadcast and the first defendant's second broadcast respectively. Paragraphs 25 and 26 plead special damages.
All of the defendants object to the amendments to [25] and [26]. In addition, the first defendant objects to the amendments to [6] and the third defendant objects to the amendments to [16.1] and [16.3]. The plaintiff concedes the objection to [16.1] and does not press that amendment. None of the defendants object to the amendments to [11], [16.2] or [21].

The defendants' objections - abuse of process

The first and second defendants submitted that the application for leave to plead in terms of [25] and [26] of the Minute is vexatious and an abuse of process in that the court has previously ruled that a plea in terms of [25] and [26] should not be permitted.
Courts in this State and elsewhere have considered the question whether it is in itself an abuse of process to bring a second interlocutory application seeking the same relief as had been unsuccessfully sought in an earlier interlocutory application. In Commonwealth v Albany Port Authority [2006] WASCA 185, [72] Pullin JA agreed with the observations of Heydon JA in Nominal Defendant v Manning [2000] NSWCA 80; (2000) 50 NSWLR 139 that it is difficult to propound a general rule suitable for all cases and that it is too extreme to say that no second interlocutory application can be entertained unless there is a change of circumstance or unless evidence is relied on which could not reasonably have been obtained earlier.
An application in identical terms to a previously unsuccessful application is likely to be dismissed. However, that is not the situation in this case. The plaintiff has not previously sought leave to amend his statement of claim in terms of [25] and [26] of the Minute, or in terms substantially the same. At the hearing which resulted in my judgment of 16 October 2009 in Neesham No 2 (S), counsel for the plaintiff expressly stated that the plaintiff did not ask for leave to amend his statement of claim in accordance with the 31 March 2009 Minute. Counsel stated that the plaintiff had filed and served that minute to show that the plaintiff could plead a proper statement of claim and should be given leave to re‑plead. In my reasons for decision in Neesham No 2 (S) I made observations about the 31 March 2009 Minute. The relevant order I made was that the plaintiff have leave to re‑plead his statement of claim. It was not open to the plaintiff to appeal against that order on the grounds that my observations concerning the relevant paragraphs of the 31 March 2009 Minute were wrong. There is no abuse of process by the plaintiff now applying to amend his statement of claim in accordance with [25] and [26] of the Minute.

Defendants' objections - no reasonable cause of action, embarrassing

The second ground of the defendants' objections is that the paragraphs of the Minute objected to disclose no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action.

Special damages

Paragraphs 25 and 26 of the Minute are:
By reason of the defendants' publications, and each of them, the plaintiff suffered specific loss and injury in that by reason of the defendants' publications and each of them the plaintiff's contract for services with WorkCover (Contract) was not renewed upon its expiry on or about 10 August 2004 for a further period of 3 years.
Further to paragraph 25 hereof, and as to the question of special damages only by reason of the defendants' publications and each of them the plaintiff was not appointed by the Minister to the position of Chairperson of the WorkCover Commission, a position that attracted a salary of $25,000 per annum, after the Contract expired, or at all.
Paragraphs 25 and 26 of the Minute are in substantially the same terms as [25.2] and [26.2] of the 31 March 2009 Minute. In the hearing on 22 May 2009 the defendants objected to [25.2] and [26.2] of the 31 March 2009 Minute on the ground that the paragraphs do not plead the alleged causal link between the broadcasts and the non‑renewal of the plaintiff's contract and his non‑appointment as a chairperson of the WorkCover Commission. In Neesham No 2 (S) I said that I would not have given the plaintiff leave to amend his statement of claim to plead special damages in accordance with [25] and [26] of the 31 March 2009 Minute. I said that the level of generality of [25.2] and [26.2] was too great for the defendants to know with any precision what case they may have to meet.
Counsel for the plaintiff, Mr Bennett, submitted that the material fact is that the publications caused the Minister not to renew the plaintiff's contract and how the publications acted on the Minister's mind so as to cause him not to renew the contract are matters of evidence and do not have to be pleaded. Mr Bennett submitted that the only further facts which could be pleaded by the plaintiff are to the effect that the Minister said to the plaintiff that by reason of each of the broadcasts complained of he was not going to renew the plaintiff's contract. Mr Bennett said that in those circumstances to require the plaintiff to give further facts or particulars of how the broadcasts operated on the Minister's mind to cause him to not renew the contract would be to place an impossible burden on the plaintiff.
In Southern Cross Mine Management Pty Ltd v Ensham Resources Pty Ltd [2004] QSC 457 Chesterman J in the Supreme Court of Queensland said:
In any cause of action in respect of which causation is an essential element it is necessary to plead the material facts which are said to give rise to the causal connection. In particular it is necessary to plead the facts which lead to a reasonable inference that the acts complained of … and the alleged later event … stand to each other in the relation of cause and effect [15].
The degree of certainty and particularity with which the special damage must be pleaded will vary from case to case and will depend on the circumstances. In Ratcliffe v Evans [1892] 2 QB 524 Bowen LJ said:
In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry (532 - 533).
The non‑renewal of the plaintiff's contract in or about August 2004 is not an obvious or logical consequence of the publication of each of the broadcasts complained of in October or November 2002. In Neesham No 2 (S) I did not say that [25] of the 31 March 2009 Minute failed to plead the material facts. I said that I would not give the plaintiff leave to amend his statement of claim to plead special damages in accordance with [25] of the 31 March Minute because that paragraph pleaded the alleged special damage at too high a level of generality.
Paragraph 25 of the Minute does not plead the facts which lead to a reasonable inference that the publications complained of and the non‑renewal of the plaintiff's contract stand to each in the relation of cause and effect. The current plea is nothing more than a bald assertion that each of the publications in October or November 2002 caused the plaintiff's contract not to be renewed in or about August 2004. The question for the court is whether [25] is a sufficient plea of special damage in all the circumstances.
The court should not insist upon more particularity in the pleading of special damage than is reasonable having regard to the circumstances of the case. The primary purposes of pleadings is to define the issues or questions which are in dispute between the parties and to provide the opposite party fair and proper notice of the case that it has to meet.
Paragraph 25 of the Minute defines an issue to be determined in the case, that is, that each of the publications complained of is a material cause of the plaintiff's contract not being renewed in or about August 2004. Paragraph 25 of the Minute does not inform the defendants of the case they have to meet in relation to that issue beyond informing them that the plaintiff alleges that each of the broadcasts was a material cause of the non‑renewal of his contract. That might be a sufficient statement of the plaintiff's case if there is a proper basis for the plaintiff to make the allegation but he is unable to provide any further particulars of it. Counsel for the plaintiff submits that that is the case. Mr Bennett informed the court, without objection, that there is a proper basis for the plea that each of the broadcasts caused the plaintiff's contract not to be renewed. The basis is that the plaintiff was told by a Minister of the Crown that that was the reason. Mr Bennett further submits that the plaintiff is not able to provide any further facts from which it is a reasonable inference that each of the broadcasts caused the non‑renewal of the plaintiff's contract.
In these circumstances, the plaintiff should have leave to amend his statement of claim in accordance with [25] of the Minute.
The practice of this court is to order that witness statements be exchanged sometime prior to trial. In Neesham No 2 I said that in this case the receipt of witness statements at the time when they are likely to be received by the defendants is an inadequate substitute for being properly informed of the case they have to meet at an earlier time. I said that the defendants may wish to investigate how and when, and indeed if, the Minister learned of each of the relevant broadcasts, the circumstances in which that occurred and the decision making process that led to the non‑renewal of the plaintiff's contract and his non‑appointment as chairperson of WorkCover Commission. I further said that the defendants cannot properly carry out such an investigation without knowing the facts which the plaintiff alleges led to his contract not being renewed and him not being appointed as chairperson of the WorkCover Commission. The defendants now know that the foundation of the plaintiff's case for special damages is that he was informed by the Minister that there had been press reports about him and the Minister was not going to renew his contract. The defendants can carry out such investigation of the case as they see fit. Importantly, the evidence on which the plaintiff relies to establish the causal link will be disclosed to the defendants well before trial. If, after the plaintiff's witness statements have been provided to the defendants, fairness requires that the defendants be given some reasonable time in which to respond to that evidence then that time will be provided.
I will allow the statement of claim to be amended in accordance with [25] and [26] of the Minute.

The imputations ‑ paragraph 6

The first defendant submits that [6] of the Minute is embarrassing because the imputation rolls up three imputations into one. I agree with that submission.
Paragraph 6 is similar to [11]. Counsel for the first and second defendants does not object to [11] of the Minute. The difference between [6] and [11] is that [11] pleads three separate imputations whereas in [6] the three imputations are rolled up into one. I will grant the plaintiff leave to amend [6] of the statement of claim by separating the rolled up imputations in [6] into three separate imputations, as is pleaded in [11]. That is, the plaintiff will have leave to amend [6] of the statement of claim to read:
In its natural and ordinary meaning the First Defendant's First Broadcast meant and was understood to mean:
6.1The plaintiff was lacking in moral rectitude in that in his performance of his duties as CEO of WorkCover the plaintiff was indifferent to the effect the workers compensation system was having upon potential claimants.
6.2The plaintiff was lacking in moral rectitude in that in his performance of his duties as CEO of WorkCover by backdating the deadline preventing people claiming compensation the plaintiff acted with callous disregard of the effect his actions would have upon persons who would otherwise claim workers compensation.
6.3The plaintiff was lacking in moral rectitude in that in his performance of his duties as CEO of WorkCover by backdating the deadline preventing people claiming compensation the plaintiff acted with reckless disregard of the effect his actions would have upon persons who would otherwise claim workers compensation.

Imputations ‑ paragraph 16

The plaintiff does not press the amendment in [16.1] of the Minute.
The third defendant does not object to the amendment in [16.2] of the Minute.
The third defendant objects to the amendment in [16.3] of the Minute. The third defendant says that the third defendant's broadcast is not capable of conveying the imputation pleaded in [16.3], that is, the imputation is so obviously unfounded that it cannot possibly succeed.
The imputation pleaded in [16.3] of the Minute is:
By backdating the deadline preventing people claiming compensation, as CEO of WorkCover, the plaintiff acted with reckless disregard of the effect his actions would have upon persons who would otherwise claim workers compensation;
In Neesham No 2 (S) I considered the third defendant's submission that the imputation that the plaintiff was indifferent to the effect that the workers compensation system was having upon potential claimants was not capable of arising from the third defendant's broadcast. I will repeat what I there said about the third defendant's broadcast:
Counsel for the plaintiff submits that the imputation arises from the following statement by Mr O'Halloran in the context of the broadcast:
'Its 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 profession that WorkCover neither works nor gives you any cover.
Its 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 front for them. The medical panels 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 backdate a deadline on, on live radio in Perth … I had a chat with him or a debate with him and he backdated the deadline to stop people claiming later that day.'
Counsel for the plaintiff says that that passage, in the context of the whole broadcast, is capable of conveying a lack of moral rectitude in the performance of duties as the CEO of WorkCover and the content of that lack of moral rectitude is as pleaded in [16]. As I have noted, [16] is in substantially the same terms as [11] to which I have earlier referred.
I make the following observations about the passage relied upon by the plaintiff. First, in his introductory remarks the host, Mr McNamara, referred to having discussed with the Minister, Mr Kobelke, proposals for changes to the workers compensation system and Mr Kobelke's media release concerning those changes. Second, before speaking the words relied upon by the plaintiff Mr O'Halloran spoke about Mr Kobelke and what Mr Kobelke had and had not done. Third, Mr O'Halloran's statement: 'it's often used as a back door means of destroying your common law claim by insurance companies' followed immediately after his statement that Mr Kobelke talks about injury management which is a nice way of talking about rehabilitation and that in 10 years not one of Mr O'Halloran's clients had ever gained a job from 'this so-called injury management system they have'. Fourth, it is clear from Mr O'Halloran's preceding comments that when he said there was not one word about safety in the whole package, the package he was referring to was the proposed changes to the workers compensation system about which Mr Kobelke had issued a media release and made statements. Fifth, when Mr O'Halloran said that despite the fact that 50 workers had died in recent years because of unsafe working conditions he talks about conciliation and WorkCover, the 'he' Mr O'Halloran was referring to was Mr Kobelke. Sixth, the words relied upon by counsel for the plaintiff are immediately followed by the following words, which again refer to Mr Kobelke:
'Now how can anyone have trust in a system when this is what they face. I mean WorkCover has to go and Kobelke's simply not listening to the message. Why is [he] protecting WorkCover? Its just beyond me.'
In the words relied upon by the plaintiff the only statements that expressly refer to the plaintiff are statements that he is at the top of WorkCover and that he backdated a deadline to stop people claiming compensation. There is nothing in the words relied upon by the plaintiff to found an imputation that the plaintiff was indifferent to the effect the workers compensation system was having upon potential claimants. In the context of the broadcast, the imputation is to the effect that the plaintiff had no interest in, or feeling for, the people who were seriously adversely affected by the workers compensation system. The imputation conjures up the notion of the plaintiff regarding the effect of the workers compensation system upon potential claimants as not mattering, being unimportant or immaterial and not caring about the effect upon them. The passage relied upon by counsel for the plaintiff may well give rise to an imputation defamatory of the plaintiff but there is nothing in the passage that connotes 'indifference'. Furthermore, whilst [16.1.2] refers to the plaintiff's action in backdating the deadline, [16.1.1] refers not to the plaintiff's action in backdating the deadline but to the effect the workers compensation system was having upon potential claimants.
The test for determining meaning asks what an ordinary, reasonable listener would understand from the material broadcast. That person reads between the lines, interprets publications in light of their general knowledge and experience, is neither too suspicious nor naive and is not avid for scandal. Courts accept some 'loose thinking' and that ordinary people have a greater capacity for implication than lawyers: Lewis v Daily Telegraph Ltd [1964] AC 234, 259 Lord Reid, 277 Lord Devlin. However, there is nothing in the words referred to by counsel for the plaintiff that point to 'indifference'. Imputation [16.1.1], or [16.1] in so far as it is qualified by [16.1.1], is not reasonably capable of arising from the third defendant's broadcast [29] - [32].

The imputation the plaintiff now seeks to plead is that by backdating the deadline the plaintiff acted with reckless disregard of the effect his actions would have upon persons who would otherwise claim workers compensation. Disregard means to pay no attention to, leave out of consideration: Macquarie Dictionary. Reckless means utterly careless of the consequences of action: Macquarie Dictionary; heedless of or indifferent to the consequences of ones actions: Oxford English Dictionary. In the context of the third defendant's broadcast, the imputation is to the effect that in deciding to backdate the deadline the plaintiff did so utterly careless of the consequences of his action and paying no attention to or giving any consideration to the effect his action would have upon persons who would otherwise claim workers compensation. The words relied upon by the plaintiff are to the effect that the plaintiff backdated the deadline to stop people claiming workers compensation later that day. There is nothing in the words complained of to found an imputation that the plaintiff paid no attention to or did not give any consideration to the effect that action would have upon persons who would otherwise claim workers compensation. I will not give leave to amend the statement of claim in accordance with [16.3] of the Minute.