Poland v Hedley [No 5]

Case [2023] WASC 294

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   POLAND -v- HEDLEY [No 5] [2023] WASC 294

CORAM:   TOTTLE J

HEARD:   4 APRIL 2023

DELIVERED          :   8 AUGUST 2023

FILE NO/S:   CIV 1370 of 2019

BETWEEN:   GREGORY DAVID POLAND

Plaintiff

AND

KATE HEDLEY

First Defendant

FAIRFAX DIGITAL AUSTRALIA & NEW ZEALAND PTY LTD

Second Defendant

NATHAN JOHN HONDROS

Third Defendant

CLAIRE BRADLEY

Fourth Defendant

DAVID BIRCH

Fifth Defendant

ANDREW WILLIAM HASTIE

Sixth Defendant

ZAK RICHARD FRANCIS KIRKUP

Seventh Defendant


Catchwords:

Practice and procedure - Pleading - Defamation - Application to strike out paragraphs in the statement of claim - Whether pleas that the fourth to seventh defendants were publishers of defamatory articles by reason of the provision by them of material not itself defamatory subsequently included in the articles should be struck out - Whether pleas of unlawful means conspiracy should be struck out - Turns on own facts

Practice and procedure - Case management - Proportionality - Where economic loss of the subject of an unlawful means conspiracy is modest - Observations on the relevance of considerations of proportionality to any application for leave to replead conspiracy plea

Legislation:

Rules of the Supreme Court 1971 (WA), O 1 r 4B, O 20 r 8(1), O 20 r 19(1), O 20 r 19(3)
Surveillance Devices Act 1998 (WA), s 9(1)

Result:

Application granted - paragraphs struck out

Category:    B

Representation:

Counsel:

Plaintiff : M L Bennett & A J Tharby
First Defendant : M C Goldblatt
Second Defendant : M C Goldblatt
Third Defendant : M C Goldblatt
Fourth Defendant : M C Goldblatt
Fifth Defendant : M C Goldblatt
Sixth Defendant : M C Goldblatt
Seventh Defendant : M C Goldblatt

Solicitors:

Plaintiff : Bennett
First Defendant : Banki Haddock Fiora
Second Defendant : Banki Haddock Fiora
Third Defendant : Banki Haddock Fiora
Fourth Defendant : Banki Haddock Fiora
Fifth Defendant : Banki Haddock Fiora
Sixth Defendant : Banki Haddock Fiora
Seventh Defendant : Banki Haddock Fiora

Cases referred to in decision:

Armstrong v McIntosh [No 2] [2019] WASC 379

Bleyer v Google Inc [2014] NSWSC 897; (2014) 88 NSWLR 670

Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215

CC Containers Pty Ltd v Lee [2011] VSC 537

Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402

Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288

Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169

English v Vantage Holdings Group Pty Ltd [2021] WASCA 47

Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346

Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678

Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210

Galland v Mineral Underwriters Ltd [1977] WAR 116

Griffith v Australian Broadcasting Corporation [2004] NSWSC 582

Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289

Morris v St Vincent's Health Australia Ltd [2020] VSC 690

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AGLC
Poland v Hedley [No 5] [2023] WASC 294
Case
[2023] WASC 294
Decision Date

CaseChat Overview and Summary

In the case of Poland v Hedley [No 5], the plaintiff, Mr Jay Poland, sued Mr Chris Hedley, among others, for damages relating to alleged unlawful conspiracy and misuse of confidential information. The dispute arose from actions taken by the defendants, including the commissioning of a poll that suggested the plaintiff would suffer electoral losses if he did not step down as the leader of the Liberal Party in Western Australia. The case was heard in the Supreme Court of Western Australia. The central legal issues in this case were whether the plaintiff had sufficiently pleaded a cause of action for conspiracy and whether the court should consider the claim given the potential for future amendments to the claim that could introduce additional heads of damage. The court determined that the plaintiff had not adequately demonstrated a causal relationship between the defendants' conduct and the alleged economic losses, and thus, particulars (ii) and (iii) under paragraph 23 were struck out as they did not disclose a reasonable cause of action. The court also noted the disproportionate resources required to determine the conspiracy claim relative to the amount claimed, hinting at the possibility of a stay if the plaintiff sought to replead the conspiracy claim. The court did not deprive the plaintiff of the opportunity to amend the statement of claim but required any such application to be supported by a minute of the proposed re-amended statement of claim. The court made it clear that any future consideration of the conspiracy claim would need to address the proportionality principle and the potential for abuse of process.

Orders

Orders of the court

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Background

Background to the litigation

Paragraphs 4F to 4M are as follows: Relevant political background to the Articles 4F In about August 2016, the plaintiff together with 3 other businessmen who were all regular significant donors to the Liberal Party who sought the resignation of Mr Barnett as Liberal Party leader, commissioned ReachTEL to conduct a poll of 11 marginal seats in WA, which poll disclosed that at the forthcoming WA State Election which was ultimately held in March 2017: 4F.1 if Mr Barnett remained the Liberal Party leader, the Liberal Party would lose 10 of the 11 marginal seats; and 4F.2 if Mr Barnett stepped down as the Liberal Party leader, the Liberal Party would win 10 of the 11 marginal seats, such conduct being widely publicised.4G In about September and October 2017: 4G.1 the City of Mandurah mayoral election took place; 4G.2 Ms Linda Christie, on behalf of Friends of Marina, donated $19,311 for radio advertising and signage to the campaign of the incumbent Mayor, Ms Marina Vergone; 4G.3 Ms Christie collected donations on behalf of Mr Hastie and was the campaign fundraising treasurer for Mr Kirkup; 4G.4 the plaintiff donated $3,580 to the City of Mandurah mayoral election campaign of Mr Rhys Williams; and 4G.5 at the election held on 21 October 2017, Mr Williams was elected Mayor. 4H On 3 February 2018, Ms Mellisa Teede, who between 2012 and 2015 was the Chief Executive Officer of the PDC, was pre-selected as the Australian Labor Party candidate for the Federal Division of Canning for the Federal Election that was ultimately held on 18 May 2019. 4I On about 26 July 2018, Strzelecki made a political donation of $20,000 to the election campaign of Ms Teede. 4J On 9 August 2018, Oceanic Bar and Grill (a restaurant operated by JDP Tourism Investments Pty Ltd, a company owned by the plaintiff's son, Mr Jay Poland at the Dolphin Quay Marina) held a function in support of Ms Teede's election campaign. 4K Ms Teede's campaign function was attended, among others, by Mr Anthony Albanese (who was then a senior figure in the Australian Labor Party, a Federal Member of Parliament, the Shadow Minister for Infrastructure and Transport and the Shadow Minister for Tourism) and Ms Paddi Creevey (who was then the Chair of the PDC). 4L In about February 2019, the plaintiff through Strzelecki proposed to provide Ms Teede with vacant office space at Dolphin Quay Marina to use as her election campaign office and gave permission for advertisements in support of Ms Teede's election campaign to be published in and around the boardwalk of the Dolphin Quay Marina. 4M On 25 February 2019, Mr Albanese, the Hon. Mr David Templeman MLA (Member for the State Division of Mandurah) and the Hon. Ms Robyn Clarke (Member for the State Division of Murray-Wellington) were in Mandurah to support Ms Teede's election campaign and promoted the announcement of $32 million funding to build a multi-storey carpark at the Mandurah Train Station if Ms Teede was elected for the Federal Division of Canning at the 2019 Federal Election.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In my view French J's remarks apply with equal force to an allegation of loss suffered as a result of an unlawful conspiracy particularly in a case where the causal connection is not immediately apparent. To paraphrase what was said by French J in a later paragraph of his reasons in Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd, the plaintiff must plead facts and circumstances leading to a reasonable inference that the conduct and the damage stood to each other in the relation of cause and effect. I will strike out particulars (ii) and (iii) under par 23 on the grounds that they do not disclose a reasonable cause of action. As I have stated I do not accept that the plaintiff should be deprived of the further opportunity to plead an unlawful conspiracy claim. If the plaintiff wishes to amend the statement of claim then he must make an application to do so supported by a minute of the proposed re-amended statement of claim. In the course of oral submissions, in answer to a proposition put by me, the plaintiff's counsel made a submission to the effect that the court should not consider the conspiracy claim on the basis that the damages claimed are confined by the heads of loss set out in the particulars to par 23 and that the possibility that the plaintiff may have suffered further losses leading to an enlargement of the claim by the addition of other heads of damage in the future should not be discounted.[53] I accept the possibility that the economic loss claimed by the plaintiff seeks to recover by his conspiracy case may be enlarged by subsequent amendment. It is relevant to an assessment of that possibility, however, that the events giving rise to the claim occurred over four years ago and it is reasonable to infer that if the plaintiff had suffered other economic losses he would know about them by now.[53] ts 296. On the materials presently before the court I am concerned that the resources of both the court and the parties required to determine the conspiracy claim are wholly disproportionate to the amount claimed by the plaintiff. In Armstrong v McIntosh,[54] Le Miere J held that the court has jurisdiction to stay defamation proceedings where there is a lack of proportionality between the costs and resources involved in the determination of the matter and the significance of the subject matter such that the proceeding may amount to an abuse of process. In so holding his Honour was applying what he had referred to as the Bleyer proportionality principle, so named because the principle was expounded by McCallum J in Bleyer v Google Inc.[55] This is not the occasion on which to consider the ambit of that principle or whether it is to be applied to proceedings other than defamation proceedings. One of the reasons why this is not the occasion to undertake that consideration is because I have not had the benefit of submissions from the parties on this issue. The purpose of the observations made in this paragraph is to provide notice to the parties of the concern I have expressed and that the concern is a matter to which submissions and, perhaps, evidence should be directed if the plaintiff wishes to pursue an application for leave to amend by repleading a conspiracy claim.[54] Armstrong v McIntosh [No 2] [2019] WASC 379.[55] Bleyer v Google Inc [2014] NSWSC 897; (2014) 88 NSWLR 670.