Poland v Hedley - [2024] WASCA 74

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   POLAND -v- HEDLEY [2024] WASCA 74
CORAM:   MITCHELL JA
VAUGHAN JA

HEARD:   21 JUNE 2024
DELIVERED          :   21 JUNE 2024
PUBLISHED           :   24 JUNE 2024
FILE NO/S:   CACV 25 of 2024
BETWEEN:   GREGORY DAVID POLAND
Appellant
AND
KATE HEDLEY
First Respondent
FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD
Second Respondent
NATHAN JOHN HONDROS
Third Respondent
CLAIRE BRADLEY
Fourth Respondent
DAVID BIRCH
Fifth Respondent
ANDREW WILLIAM HASTIE
Sixth Respondent
ZAK RICHARD FRANCIS KIRKUP
Seventh Respondent

ON APPEAL FROM:
Jurisdiction              :   SUPREME COURT OF WESTERN AUSTRALIA
Coram:   TOTTLE J
Citation: POLAND -v- HEDLEY [No 6] [2024] WASC 168
File Number            :   CIV 1370 of 2019

Catchwords:

Appeal - Practice and procedure - Appeal against refusal of leave to join additional plaintiffs and leave to amend substituted statement of claim - Leave to appeal - Where appellant is still able to apply to replead or amend extant statement of claim - Leave to appeal refused

Legislation:

Nil

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant	:	M L Bennett & A Tharby
First Respondent	:	M C Goldblatt
Second Respondent	:	M C Goldblatt
Third Respondent	:	M C Goldblatt
Fourth Respondent	:	M C Goldblatt
Fifth Respondent	:	M C Goldblatt
Sixth Respondent	:	M C Goldblatt
Seventh Respondent	:	M C Goldblatt

Solicitors:

Appellant	:	Bennett
First Respondent	:	Carmel Galati
Second Respondent	:	Carmel Galati
Third Respondent	:	Carmel Galati
Fourth Respondent	:	Carmel Galati
Fifth Respondent	:	Carmel Galati
Sixth Respondent	:	Carmel Galati
Seventh Respondent	:	Carmel Galati

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

Arvind Pty Ltd v Lamers [2020] WASCA 47
Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288
Dank v Whittaker (No 1) [2013] NSWSC 1062
Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346
Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Poland v Hedley [2023] WASCA 69
Poland v Hedley [No 5] [2023] WASC 294
Poland v Hedley [No 6] [2024] WASC 168
Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564
Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
Wright v De Kauwe [No 2] [2024] WASCA 51

REASONS OF THE COURT:

Overview

On 21 June 2024 the court heard the appellant's application for leave to appeal against interlocutory orders made by the General Division of this court on 7 May 2024 in action CIV/1370/2019, following the primary judge's reasons for decision in Poland v Hedley [No 6].[1]
[1] Poland v Hedley [No 6] [2024] WASC 168 (primary reasons).
In the course of oral submissions, counsel for the appellant informed the court that the application for leave to appeal was not pressed. That change in position followed the court expressing the view that there was nothing in the interlocutory orders of 7 May 2024 or the primary reasons that prevented the appellant making a further application for leave to replead based on a properly formulated pleading. The court informed the parties that, while it would make orders refusing leave consistently with the appellant's change in position, it would give reasons for those orders so as to record the basis on which leave to appeal was refused.
These are our reasons for refusing leave to appeal and dismissing the appeal.

Background

In the primary proceedings the appellant claims damages for defamation against the first, second and third respondents. The second respondent operates a news internet site. The first and third respondents are, respectively, a deputy editor and a journalist employed by the second respondent. Those respondents have been referred to as the 'media respondents'. The claim against the media respondents is based on articles published on the second respondent's news site on 27 February 2019 and 28 February 2019. The appellant initially joined only the media respondents to the primary proceedings. Subsequently, however, the fourth to seventh respondents were joined to the primary proceedings.
At the time of the two articles:
1.The sixth respondent was a member of the House of Representatives.
2.The fourth and fifth respondents were members of the sixth respondent's staff (being, respectively, the office manager and the media adviser employed in the sixth respondent's electoral office).
3.The seventh respondent was a member of the Parliament of Western Australia.
The appellant has referred to the fourth to seventh respondents as the 'political respondents'.
The action arises out of an audio recording that was made at a meeting attended by the appellant. The appellant says that the recording was made in circumstances that involved a contravention of the Surveillance Devices Act 1998 (WA). The appellant alleges that the person who made the recording later met with the fourth and sixth respondents and subsequently sent the fourth respondent a copy of the recording. The fourth respondent then provided the recording to the fifth respondent. There were telephone conversations between the sixth and seventh respondents before the sixth and seventh respondents each had a telephone conversation with the third respondent. The fifth respondent also had conversations with the sixth respondent. The recording was then provided to the third respondent by one or other of the fourth, fifth or sixth respondents.
Among other things the appellant alleges that:
1.The conversations between the sixth and seventh respondents, and each of the sixth and seventh respondents and the third respondent, discussed provision of a copy of the recording for the purpose of the publication of a media article based on the recording (it being said that the recording showed that the appellant was involved in corruption).[2]
2.The recording was provided to the media respondents for publication of an article based on the recording to the effect that the appellant was corrupt.[3]
[2] Re‑amended minute of proposed re-amended substituted statement of claim dated 5 December 2023 (proposed SOC) pars 25, 28, 29.
[3] Proposed SOC par 24.
The appellant seeks to pursue two claims against the political respondents. First, the appellant seeks damages for defamation. In that respect the most recent iteration of the appellant's proposed pleading - the proposed SOC - pleads that the political respondents participated in, and are therefore also liable as publishers of, the first article and the second article.[4] Second, the appellant seeks damages for loss caused by an alleged conspiracy between the respondents to injure him by unlawful means.
[4] Proposed SOC par 16A.
The extant pleading in the primary proceedings is the amended substituted statement of claim filed on 30 September 2022. Various paragraphs of the amended substituted statement of claim sought to plead the defamation claim against the political respondents and the conspiracy claim. On 8 August 2023, the primary judge struck out those paragraphs of the amended substituted statement of claim for written reasons published that day: Poland v Hedley [No 5].[5] At that time, the primary judge ordered that the appellant file and serve any application for leave to replead and a supporting minute of proposed re‑amended substituted statement of claim by 29 August 2023 (subsequently extended to 19 September 2023). The appellant availed himself of that opportunity by a minute of proposed orders and minute of proposed re‑amended substituted statement of claim filed on 19 September 2023. The minutes were subsequently amended on 16 November 2023 and re‑amended on 5 December 2023.
[5] Poland v Hedley [No 5] [2023] WASC 294.
In the final form of his application the appellant also sought to join two additional plaintiffs being companies associated with the appellant - The Village Scarborough Beach Pty Ltd (Village SB) and Coventry Village Pty Ltd (Coventry Village).
On 7 May 2024, by the order the subject of the application for leave to appeal, the primary judge dismissed the appellant's application for leave to replead and join the additional plaintiffs. Accordingly, the primary judge rejected both: (1) the application for joinder of the proposed second plaintiff (Village SB) and the proposed third plaintiff (Coventry Village); and (2) the appellant's renewed attempt to pursue the defamation claim against the political respondents and the claim of alleged conspiracy to injure by unlawful means.
The appellant sought leave to appeal against the order made by the primary judge on 7 May 2024, relying on 10 proposed grounds of appeal. The nature of the proposed grounds of appeal appears adequately from the headings describing them at [29] ‑ [52] below.

The primary judge's reasons for dismissing the application

The primary judge's reasons describe and reproduce the impugned pleas from the proposed SOC. However, as the primary judge correctly states, the conspiracy plea is 'lengthy and detailed' and not readily amenable to being summarised: [5]. For this reason the primary judge chose to reproduce the relevant portions of the proposed SOC as an appendix to the primary reasons.
Accordingly, as these matters can be read in the primary reasons, it is not necessary to recite the details of the defamation claim against the political respondents and the conspiracy claim. It suffices to note that, as to the general factual background and the nature of the appellant's case, the primary judge referred to his reasons in Poland v Hedley [No 5]: [3].[6] Otherwise the primary reasons address the proposed pleas as necessary in determining whether to grant leave to amend. See eg [6] ‑ [9], [11], [13], [16] ‑ [17], [20], [22] ‑ [24], [26] ‑ [27], [36] ‑ [38], [41] ‑ [42], [44] (as to the conspiracy plea) and [46] ‑ [47] (as to the defamation claim - there being, however, some overlap insofar as the appellant relied on alleged telephone conversations pleaded as part of the conspiracy claim in support of the publication plea).
[6] Further background is provided in this court's decision in Poland v Hedley [2023] WASCA 69 [2] - [10].
Broadly speaking, in refusing leave to amend, the primary judge reasoned as follows.
First, as to the conspiracy claim in relation to Village SB and Coventry Village (ie proposed SOC pars 19 ‑ 35):
1.Neither Village SB nor Coventry Village were identified as subjects of the alleged agreement or common design: [7], [11](a). The finding at primary reasons [11](a) was challenged by proposed ground 3.
2.The particulars of an intention to injure in proposed SOC par 34 did not support the existence of an intention to injure Village SB or Coventry Village: [9], [11](b). These findings were challenged by proposed ground 2.
3.The particularisation of the damages case (ie proposed SOC pars 37 and 38) suffered the same difficulties in terms of the causation pleas as discussed at [18.3] and [18.4] below. These findings were challenged by proposed grounds 6 and 8.
Second, as to the conspiracy plea generally (ie so far as advanced on behalf of the appellant as well as Village SB and Coventry Village):
1.Particulars (a) ‑ (c) of the proposed SOC par 34(xix) (described as the 'political opponent' particulars) were embarrassing and likely to prejudice or delay the fair trial of the action: [20]. This finding was challenged by proposed ground 4.
2.Particular (ii) to proposed SOC par 36 (the FOI legal expenses) did not disclose a reasonable cause of action and was embarrassing: [24]. This finding was challenged by proposed ground 5.
3.Particulars (iii) ‑ (viii) to proposed SOC par 36 (the appellant's plea of derivative loss arising from Village SB's lost opportunity to further the Scarborough Project) did not disclose a reasonable cause of action and were embarrassing because the pleading did not set out the basis on which it is alleged that the appellant suffered the loss (ie the alleged causal connection was no more than bare assertion): [26] ‑ [28]. This finding was challenged by proposed ground 6.
4.Particulars (ix) ‑ (xiii) to proposed SOC par 36 (the appellant's plea of derivative loss arising from Coventry Village having to repay loans and pay interest on loans) did not disclose a reasonable cause of action and were embarrassing because the pleading did not set out the basis on which it is alleged that the appellant suffered the loss (ie the alleged causal connection was no more than bare assertion): [36] ‑ [39]. This finding was challenged by proposed ground 8.
5.Particulars (xiv), (xv) and (xvii) to proposed SOC par 36 (other particulars as to alleged damage) did not disclose a reasonable cause of action and were embarrassing: [41] ‑ [43]. This finding was challenged by proposed ground 9.
As to the defamation claim against the political respondents (ie whether the political respondents participated in the publication of the articles):
1.The primary judge relied on the principles his Honour set out in Poland v Hedley [No 5] - these, in turn, relied on the decision of McCallum J (as her Honour was then) in Dank v Whittaker (No 1).[7] Accordingly, the primary judge adopted as a touchstone that:
where a person merely contributes material to an article but has no control over the publishing process that person will not ordinarily be liable unless he or she has assented to the final form of the article.[8]
2.The primary judge summarised the pleaded telephone calls relied on: [47]. His Honour then concluded that:
(a)As to the fourth respondent (the office manager) - the proposed SOC did not establish that the fourth respondent did anything more than participate in providing the recording to the third respondent; it did not disclose a reasonable cause of action: [48].
(b)As to the fifth respondent (the media adviser) - the proposed SOC did not establish that the fifth respondent did anything more than participate in providing the recording to the third respondent and have conversations with the sixth and seventh respondents; it did not disclose a reasonable cause of action: [49].
(c)As to the sixth respondent (the Commonwealth Parliamentarian) - so far as the proposed SOC pleaded conversations between the third respondent and the sixth respondent those conversations did not provide for control over the publication nor assent to the final form of the articles. The pleading did not disclose a reasonable cause of action: [50] ‑ [52].
(d)As to the seventh respondent (the State Parliamentarian) - essentially for the same reasons as with the sixth respondent the pleading did not disclose a reasonable cause of action: [53].
[7] Dank v Whittaker (No 1) [2013] NSWSC 1062 [26].
[8] Primary reasons [45].
The primary judge's findings in relation to the defamation claim against the political respondents were challenged by proposed ground 10.
Separately, as to [18.3] & [18.4] above (ie the alleged derivative loss claims), the primary judge addressed the 'reflective loss' principle. The primary judge expressly stated that, given the pleading deficiencies, it was impossible to express a view on the application of the reflective loss principle: [35]. However, assuming the plea was advanced in a particular way, the primary judge held that there would be no reasonable cause of action in respect of that reflective loss: [35], [40]. These findings were challenged by proposed ground 7.

Leave to appeal - applicable legal principles

The principles applying to leave to appeal an interlocutory order were summarised in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd:
Where leave to appeal is necessary, leave may be granted whenever the interests of justice require it. The principles on which this court considers whether to grant leave to appeal are well‑established:
1.The requirement for leave is no mere technicality or procedural nicety; it serves an important function in the administration of justice by discouraging unnecessary interlocutory appeals.
2.Appellate courts exercise particular caution (sometime referred to a 'special restraint') in reviewing interlocutory decisions on matters of practice and procedure.
3.There is a particular need to refrain from interfering with interlocutory procedural decisions made by judges managing cases in the Commercial and Managed Cases List.
4.Ordinarily, while not being rigid or exhaustive criteria, the considerations to be taken into account by this court upon an exercise of the discretion to grant or refuse leave to appeal are:
(a)first, whether the decision was wrong or, at the least, attended with sufficient doubt to warrant its being reconsidered; and
(b)second, whether substantial injustice would result if the decision is left unreversed, supposing the decision to be wrong. However, the requirement to show substantial injustice is no more than a guideline for the exercise of what is a broad discretion.
The two considerations bear on each other. The degree of doubt that is sufficient in one case may be different from that required in another. It will be affected by the extent of the risk of substantial injustice if leave were refused, supposing the decision to be wrong.
5.The requirement of 'substantial injustice' is not satisfied by interference with procedural rights or procedural disadvantage; it looks to whether substantive rights are adversely affected.
6.Where substantive rights are not effectively determined, an appellate court should be reluctant to interfere.
These considerations provide general guidance only. Thus, while the question of leave is normally considered within the rubric of these organising principles, there will be cases raising special considerations. The touchstone remains the interests of justice. The nature and risk of the injustice said to result from the order appealed from will generally be a material consideration. There is a far greater risk of injustice where an interlocutory decision determines a substantive right. In such a case leave will be granted more readily. By contrast, as is mentioned in the authorities establishing the principles set out at [the paragraph] above, a 'tight rein' must be kept on appeals involving interlocutory decisions on matters of practice and procedure.[9] (citations omitted)
[9] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [117] - [118].
Also relevant are the observations in Arvind Pty Ltd v Lamers.[10]
[10] Arvind Pty Ltd v Lamers [2020] WASCA 47 [4], [5], [7], [14] - [17].
Three things should be noted immediately. First, the appellant sought leave to appeal in relation to a matter of practice and procedure. Leave to amend a pleading or replead parts of a pleading which have been struck out is quintessentially a matter of practice and procedure which, ordinarily, attracts case management considerations (although in this instance discretionary considerations were not relied on in refusing leave to amend). Second, the decision sought to be challenged is a decision of the primary judge as case manager of an action in the Commercial and Managed Cases List. Third, any appeal would inevitably fragment and substantially delay the resolution of the primary proceedings. If leave to appeal was granted it was unlikely that an appeal would be heard and determined within 12 months. That is antithetical to the goal and objects in O 1 r 4A and r 4B(1)(b) & (d) of the Rules of the Supreme Court 1971 (WA).

The appellant asserted that it was in the interests of justice for the court to grant him leave to appeal. The appellant said that the determination of whether the conspiracy claim and the defamation claim against the political respondents remain part of the primary proceedings is a decision that affects his substantive rights. It would, according to the appellant, have a significant impact on the future of the primary proceedings. The conspiracy claim was said to be worth 'millions of dollars'. The appellant said that a substantial injustice would be done if he (and his associated companies) were prevented from pursuing the conspiracy claim at a pleading stage. Similarly, the appellant said that a substantial injustice would be done if he was prevented, at a pleading stage, from pursuing his defamation claim against the political respondents and thereby pursuing vindication of his reputation.[11]
[11] Appellant's submissions pars 19 - 22.
It is not clear why the appellant said that he would be prevented from pursuing the claims at a pleading stage. The order under appeal simply provides that the application for leave to replead and the application for leave to amend and replead are dismissed. That is consistent with what is stated in the primary reasons.[12] There is no preclusion against a further application for leave to replead based on a properly formulated pleading.
[12] Primary reasons [54].
It is true that the appellant (and his associated companies) are presently unable to pursue the conspiracy claim and the defamation claim against the political respondents given the limited terms of the current pleading (being the amended substituted statement of claim filed on 30 September 2022 other than the paragraphs of that pleading struck out on 8 August 2023). However, as mentioned, the primary judge has not made an order restricting the appellant's ability to bring a further application to replead or amend the extant statement of claim. Nor is there any assertion by or on behalf of the appellant that he is unable to replead. Many of the deficiencies identified by the primary judge are capable of being overcome by an adequate pleading of the requisite material facts to establish the causes of action relied on. There was, in the circumstances, no force in the appellant's protestation that the order refusing leave to amend adversely affected his substantive rights thereby causing substantial injustice.
Nonetheless, so far as the application for leave to appeal was advanced on the basis that the conspiracy claim and the defamation claim against the political respondents are reasonable causes of action as pleaded in the proposed SOC - or claims that would (subject to adequate particularisation) constitute reasonable causes of action - it is appropriate to examine the strength of the proposed grounds of appeal.

The strength of the proposed grounds of appeal

Proposed ground 1: Alleged error in relying on the principles governing strike out applications rather than the principles governing applications for leave to replead (Primary reasons [3] and [54])

The relevant passage is at primary reasons [3] rather than primary reasons [54].
The proposed ground was entirely without merit. The primary judge simply applied the general principle that there should not be leave to amend where the pleading as amended ought to be struck out (see eg primary reasons [15](c)). In evaluating whether the proposed SOC was liable to be struck out it was appropriate to apply the principles that govern a strike out application.
Proposed ground 1 would inevitably have failed.

Proposed grounds applying to the conspiracy claim in relation to Village SB and Coventry Village

Proposed ground 3: Alleged error in finding that proposed SOC pars 19 - 35 do not plead a reasonable cause of action on behalf of Village SB or Coventry Village (Primary reasons [11])

There was no challenge to the finding, at primary reasons [7] and [11](a), that neither Village SB nor Coventry Village are identified as subjects of the alleged agreement or common design.
That finding, which is manifestly correct when the proposed SOC is read fairly and as a whole, is an insurmountable hurdle to the substance of proposed ground 3, namely, that there was a reasonable cause of action for Village SB and Coventry Village based on a claim of alleged conspiracy to injure by unlawful means. It does not matter that Village SB and Coventry Village are business interests of the appellant. The point is that neither Village SB nor Coventry Village are identified as subjects of the alleged agreement or common design.
The inevitable failure of proposed ground 3 means that even if one or more of proposed grounds 2, 6 or 8 were upheld there was no material error as concerns the conspiracy claim in relation to Village SB and Coventry Village.

Proposed ground 2: Alleged error in finding that particulars to proposed SOC par 34 do not support existence of an intention to injure Village SB or Coventry Village (Primary reasons [9], [11](b))

The primary judge was plainly correct so far as his Honour found that the particulars of an intention to injure in proposed SOC par 34 did not support the existence of an intention to injure Village SB or Coventry Village. Proposed ground 2 was without merit.

Proposed grounds 6 and 8: Alleged error in finding particularisation of damages case disclosed no reasonable cause of action (Primary reasons [44])

The absence of merit to proposed grounds 6 and 8 (see [38] below) was a further hurdle to the appellant establishing a reasonable cause of action for Village SB and Coventry Village based on a claim of alleged conspiracy to injure by unlawful means.

Proposed grounds applying to the conspiracy claim in relation to the appellant

Proposed ground 4: Alleged error in finding particulars (a) - (c) of proposed SOC par 34(xix) embarrassing and likely to prejudice or delay the fair trial of the action (Primary reasons [20])

There was no apparent error in the primary judge's conclusion as challenged by proposed ground 4. This aspect of the primary judge's decision was not attended with sufficient doubt to warrant its reconsideration. In any case, this was an evaluative judgment by a CMC List case manager on a matter of practice and procedure. The primary judge is far better placed than the Court of Appeal to consider this matter. It was not in the interests of justice in the circumstances of the present case for there to be leave to reagitate whether a plea is embarrassing or is likely to prejudice or delay the fair trial of the action.

Proposed grounds 5 - 6, 8, 9: Alleged error in finding that particulars to proposed SOC par 36 did not disclose a reasonable cause of action and were embarrassing (Primary reasons [23] - [24], [26] - [28], [39], [43], [44])

These proposed grounds all challenged the primary judge's various conclusions that the pleading was inadequate in establishing a causal connection. There was no apparent error in these conclusions. The pleading was simply assertive and did not adequately inform the respondents of the causation case they had to meet. Again, in our view, this aspect of the primary judge's decision was not attended with sufficient doubt to warrant its reconsideration. There was, in any case, nothing preventing the appellant repleading to plead out a proper case as to causation. These proposed grounds could not sustain a grant of leave to appeal.

Proposed ground 7: Alleged error in finding that the appellant would not have a reasonable cause of action in respect of reflective loss suffered by Village SB and Coventry Village (Primary reasons [35], [40])

The relevant finding the subject of proposed ground 7, and thus the proposed ground itself, went nowhere. The 'finding' was mere obiter dicta. As a non‑dispositive finding, even were the finding erroneous - and we make no finding on this issue one way or the other - the finding as made did not sustain the primary judge's order dismissing the application. All the more so this proposed ground could not sustain a grant of leave to appeal.

Proposed ground 10: Alleged error in finding no reasonable cause of action against the political respondents as being publishers of the alleged defamatory material (Primary reasons [45], [49], [51] - [53])

Although proposed ground 10, in its terms, suggested that it applied to each of the political respondents (ie each of the fourth to seventh respondents), there was in fact no challenge to primary reasons [48] dealing with the fourth respondent. This was not a drafting error. At par 79 of the appellant's written submissions the appellant expressly conceded that the finding at primary reasons [48] was 'not contested'.
It followed that the appellant's 'orders wanted' on the appeal overreached insofar as the appellant sought an order that he have leave to amend in terms of the proposed SOC.
More generally, as explained in its terms and the appellant's written submissions, proposed ground 10 raised a substantive legal question based on Webb v Bloch,[13] Fairfax Media Publications Pty Ltd v Voller[14] and Google LLC v Defteros.[15] The issue was explained and considered by this court in Wright v De Kauwe [No 2].[16] As was noted, however:
Neither Trkulja,[17] Voller nor Google v Defteros were cases of the kind discussed at [108] above [one of which included McCallum J's decision in Dank v Whittaker (No 1) as relied on by the primary judge], in which an act of providing non‑defamatory information to a journalist was said to make the party a publisher of the whole article which contained defamatory statements not based on information provided by that party.[18]
[13] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331, 363 - 365.
[14] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346 [63], [164].
[15] Google LLC v Defteros [2022] HCA 27; (2022) 96 ALJR 766 [21], [30] - [32], [87].
[16] Wright v De Kauwe [No 2] [2024] WASCA 51 [105] - [112] (Mitchell JA, Buss P and Lundberg J agreeing on this point).
[17] Referring to Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149.
[18] Wright v De Kauwe [No 2] [110].
In Wright v De Kauwe [No 2] it was not necessary for the court to consider whether and how cases such as Dank v Whittaker (No 1) might be reconciled with the approach taken in Trkulja v Google LLC, Fairfax Media Publications Pty Ltd v Voller and Google LLC v Defteros.[19] As was observed, Dank v Whittaker (No 1) pre‑dated the High Court cases.[20] In written submissions filed opposing leave to appeal the respondents said that the cases were reconciled in Dank v Cronulla Sutherland District Rugby League Football Club Ltd[21] and Rush v Nationwide News Pty Ltd (No 2).[22] Again, however, these cases pre‑date the more recent High Court authorities that the appellant relied on in support of proposed ground 10.
[19] Wright v De Kauwe [No 2] [112].
[20] Wright v De Kauwe [No 2] [109].
[21] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288 [137].
[22] Rush v Nationwide News Pty Ltd (No 2) [2018] FCA 550; (2018) 359 ALR 564 [124].
In support of leave to appeal in relation to proposed ground 10 it might have been said that it is reasonably arguable that the law in this area is developing. It might further have been said that the decision in the primary court has the possible effect of stifling that development. It is well established that the court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.[23]
[23] See eg Spencer v The Commonwealth of Australia [2010] HCA 28; (2010) 241 CLR 118 [25].
In short, there might be an arguable point in terms of the substantive legal question sought to be raised by proposed ground 10 - or, at least, a point which is sufficiently arguable that it is open to debate as to whether it should be resolved at the pleading stage.
Were this the only difficulty with the pleading of the defamation claim against the political respondents it might have been appropriate to grant leave to appeal limited to proposed ground 10. It could not justify leave to appeal generally. We were, however, not satisfied that there should be such a limited grant of leave to appeal in the circumstances of the present case. The pleading was deficient in any event. Moreover, the current state of the proposed SOC was such that it is not suitable for appellate consideration of the substantive legal question that is sought to be raised by proposed ground 10.
The key plea relied on by the appellant for this purpose is the plea at proposed SOC par 16A:
By reason of the matters pleaded in paragraphs 4BD to 4BF, 23 to 31 and the matters identified in particulars (i)(b), (i)(c), (iii) and (iv) herein, the fourth to seventh defendants [ie the political respondents] participated in, and are therefore also liable as publishers of, the First Article and the Second Article.
The first difficulty with the plea is that the appellant now concedes that there is no reasonable cause of action vis‑à‑vis the fourth respondent. Accordingly, the plea, as presently formulated, could not sustain a successful appeal to revive par 16A in the form in which it was pleaded in the proposed SOC. However, the rolled‑up nature of the plea results in greater difficulty than the mere inclusion of an unsustainable claim against the fourth respondent.
As a result of the rolled‑up plea each of the allegations in the identified paragraphs is relied on against each of the political respondents. That is embarrassing and may prejudice or delay the fair trial of the action even if some sub‑set of the matters identified in par 16A may amount to a reasonable cause of action as against a particular political respondent. Each of the political respondents is entitled to know, with specificity, what case is advanced against him (the appellant not contesting the primary judge's conclusion that there is no reasonable cause of action against the fourth respondent). So too each political respondent is entitled to know which of the matters identified in the rolled‑up plea is not relied on in support of the allegation that he participated in the publication. That should be a relatively simple matter of distinct pleas which plead the material facts relied on as against each individual political respondent to sustain the conclusion that he participated in the publication of one or both of the two articles. The use of the term of art 'material facts' is deliberate. Much of what is found in the proposed SOC consists of a prolix pleading of alleged evidence (for example the pleader thinks it necessary and appropriate to detail the length of various telephone conversations). It is difficult to understand why the pleading continues to take this unhelpful approach given the admonition correctly made by the primary judge in relation to an earlier statement of claim.[24]
[24] Poland v Hedley [No 5] [11], [17].
Finally, while it is a minor point, par 16A is ambiguous so far as it refers to 'particulars (i)(b), (i)(c), (iii) and (iv) herein'. There are no particulars to par 16A. It may be that the pleader intends to refer to the particulars said to be taken in alleged furtherance of the conspiracy as pleaded at proposed SOC par 33. But if that is the intention then it is not asking too much for the pleader to properly cross‑reference. Neither the political respondents nor the court should be left to speculate on the material facts that are alleged in support of the allegation of publication.
The embarrassing nature of par 16A of the proposed SOC meant that the primary judge was correct to refuse leave to amend in terms of a plea in this form in any event. So, even if there is substance in the substantive legal question that underpins proposed ground 10, the appeal could not succeed. In any case, given the deficiencies we have referred to, the publication plea was not in a suitable form for appellate consideration of the point that the appellant sought to agitate by proposed ground 10. If, on appeal, this court is to consider the substantive legal question that was sought to be raised by proposed ground 10, it is in the interests of justice that it do so on the basis of a properly formulated pleading in which the material facts applicable to each political respondent are clearly identified.
As it stood, however, the refusal of leave to amend in terms of par 16A of the proposed SOC was not attended by sufficient doubt to justify the grant of leave to appeal. Nor, in circumstances where it remained open to the appellant to seek to amend the extant statement of claim to properly plead the material facts said to constitute publication by the fifth to seventh respondents, were the orders made 7 May 2024 productive of substantial injustice if left unreversed.

Conclusion and orders

For these reasons leave to appeal was refused. Consequently the appeal was dismissed. Costs followed the event.
In the event of a future decision in the primary proceedings refusing the appellant leave to amend nothing in these reasons (or the order of this court made 21 June 2024) is to be taken to preclude the appellant seeking leave to appeal on a ground raising the substantive legal question that is sought to be raised by proposed ground 10 on a properly formulated pleading. Nor should anything in these reasons be thought to be determinative of the substantive legal question that is sought to be raised by proposed ground 10.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AR
Associate to the Honourable Justice Vaughan
24 JUNE 2024