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
National Australia Bank Ltd v Rowe [2018] WASC 330
Poland v Hedley [No 2] [2020] WASC 203
Quinn v Leathem [1901] AC 495
Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174
Rowe v National Australia Bank Ltd [2019] WASCA 140; (2019) 56 WAR 1
Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32
Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562
Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317
Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398
Walker v Veda Advantage Information Services & Solutions Ltd [2011] QSC 316
TOTTLE J:
Summary
In this action the plaintiff claims both damages for defamation and damages for loss caused by an alleged conspiracy between the defendants to injure him by unlawful means. The defendants have applied to strike out various paragraphs of the amended substituted statement of claim.[1] The impugned paragraphs fall into two groups. First, there are the paragraphs relied on to support the claim that the fourth to seventh defendants were publishers of the defamatory material and, secondly, there are the paragraphs that plead the conspiracy, there is, however, a substantial overlap because many of the paragraphs relied on to establish that the fourth to seventh defendants were publishers are also relied on for the conspiracy plea.
[1] This version of the statement of claim was filed on 30 September 2022 and I will refer to it simply as the statement of claim.
The plaintiff is a businessman and until 27 February 2019 he was the Deputy Chair of the Peel Development Commission.
At the times relevant to this application the first defendant was the Deputy Editor of WAtoday, an internet news site operated by the second defendant, the third defendant was a journalist employed by the second defendant as WAtoday's political reporter, the sixth defendant was a member of the House of Representatives representing the Federal Division of Canning, the fourth and fifth defendants were members of the sixth defendant's staff and the seventh defendant was a member of the Western Australian Parliament representing the State Division of Dawesville.
It is common ground that on 15 January 2019 the plaintiff attended a meeting at a restaurant with Mr Aaron Grainger, the owner of a business in the Peel region. Also present were Mrs Grainger and a member of staff of the Peel Development Corporation. An audio recording of what was said at the meeting was made.
The plaintiff alleges that the recording was made by Mr Grainger in circumstances that involved a contravention of the Surveillance Devices Act 1998 (WA).[2] Section 9(1) of the Surveillance Devices Act provides that, subject to certain presently irrelevant exceptions, a person shall not knowingly publish or communicate a private conversation, or a report or record of a private conversation, or a record of a private activity that has come to the person's knowledge as a direct or indirect result of the use of a listening device or an optical surveillance device.
[2] In these reasons I will adopt the definitions used in the statement of claim and in which the recording is defined as 'the Recording'.
The plaintiff alleges that the sixth defendant obtained a copy of the Recording from Mr Grainger and, either directly or through his staff, provided it to the third defendant, Mr Hondros.
The first and third defendants were the authors of three articles published on the WAtoday website. The plaintiff claims that two of the articles, (the First Article and the Second Article - collectively the Articles) contained statements that defamed him (the Third Article is relied on only to support a claim for aggravated damages). The First Article was made available for download at 4.54 pm on 27 February 2019 and the Second Article was made available for download at 3.34 pm on 28 February 2019.
The present strike out application is not concerned with the content of the Articles or the defamatory imputations alleged to have been conveyed by them and there is no need to make further reference to that aspect of the case.
The unlawful conspiracy claim was introduced into the proceedings by amendment to the writ and amended statement of claim made pursuant to leave granted by Le Miere J on 11 June 2020. The application for leave to amend was opposed by the first to third defendants (at the time they were the only defendants). The critical issue was whether the proposed amended statement of claim pleaded a pecuniary loss incurred before the writ was issued.[3] For the purposes of the application the plaintiff confined his claimed loss to the fee paid by him on the issue of the writ.[4] His Honour delivered a reserved judgment holding that the filing fee was capable of amounting to damages for the purposes of a conspiracy claim and the plaintiff should be permitted to amend the writ and statement of claim to include the conspiracy claim.
[3] Poland v Hedley [No 2] [2020] WASC 203 [9] (Le Miere J).
[4] Poland v Hedley [No 2] [14].
The unlawful means alleged to have been used to inflict harm on the plaintiff is the publication of the content of the conversation at the meeting on 15 January 2019 in contravention of s 9(1) of the Surveillance Devices Act.
The statement of claim is prolix. It contains much material that is both unnecessary and irrelevant. Much, if not all, of the unnecessary material has been introduced to bolster the conspiracy plea. Notwithstanding its length the statement of claim does not articulate with sufficient clarity the precise factual basis on which it is contended the defendants conspired to harm the plaintiff. Many of the paragraphs about which the defendants complain will be struck out. These include all of the conspiracy plea paragraphs.
The defendants contend that the plaintiff should not be granted leave to replead the conspiracy plea because it infringes what they characterise as a longstanding principle that requires a claim for compensation for injury to reputation to be brought as an action for defamation.
It is apparent from the length of the statement of claim itself and the interlocutory disputes it has generated that the plaintiff's concern to allege unlawful conspiracy has resulted in him, and no doubt, the defendants, incurring very considerable expenses. It has necessitated two reserved judgments. Damages for unlawful conspiracy are at large. That said, on the basis of the present statement of claim the only immediately quantifiable loss is the filing fee on the issue of the writ.
As I explain later in these reasons, I am not persuaded that the plaintiff should be deprived of the opportunity to replead the statement of claim by making further amendments. However, on an application for leave to amend it may be necessary for the plaintiff to address the issue of the apparent lack of proportionality between the resources of the court and the parties required to resolve the conspiracy claim and the modest economic loss claimed by the plaintiff and, how any lack of proportionality that may be found to exist, bears on the exercise of the discretion to permit the amendment. This is a matter that I discuss in the section of these reasons entitled 'leave to replead'.
Leave to bring application
The strike out application was made by a minute of orders filed on 3 February 2023. Order 20 r 19(3) of the Rules of the Supreme Court 1971 (WA) requires an application to strike out a pleading to be made within 21 days of the service of the pleading to which it relates. The statement of claim was filed on 30 September 2022. The defendants have applied for an extension of time within which to bring the present application. The application is supported by an affidavit affirmed by one of the defendants' solicitors, Ms Leanne Norman, who explains that the application was delayed by conferral between the parties about the adequacy of the pleading. I accept the explanation and I am satisfied that the extension of time sought by the defendants should be granted.
Applicable principles
The defendants' application alleges that various paragraphs of the statement of claim either disclose no reasonable cause of action or may prejudice, embarrass or delay the fair trial of the action.[5] The principles governing strike-out applications of this nature, including the caution with which the power to strike out a pleading is to be exercised, are well established. The principles were summarised by Smith J in Vantage Holdings Group Pty Ltd v Donnelly [No 4].[6] The Court of Appeal approved her Honour's summary of those principles in English v Vantage Holdings Group Pty Ltd,[7] and those are the principles that I have applied in determining the present application.
[5] Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(a) and O 20 r 19(1)(c).
[6] Vantage Holdings Group Pty Ltd v Donnelly [No 4] [2019] WASC 398 [60] (Smith J).
[7] English v Vantage Holdings Group Pty Ltd [2021] WASCA 47 [56] (Murphy & Vaughan JJA).
In National Australia Bank Ltd v Rowe,[8] Vaughan J (as his Honour then was) emphasised that the efficient conduct of litigation before this court required compliance with the provisions of O 20 r 8(1) of the Rules of the Supreme Court. His Honour's observations (subsequently endorsed by the Court of Appeal)[9] warrant repetition:[10]
The terms of O 20 r 8(1) of the Rules of the Supreme Court 1971 (WA) are clear and should be obeyed. Subject to exceptions that are presently irrelevant:
…every pleading must contain, and contain only, a statement in a summary form of the material facts on which the party pleading relies for his claim or defence, as the case may be, but not the evidence by which those facts are to be proved, and the statement must be as brief as the nature of the case admits. (emphasis added)
It is said that this rule is applied in a more flexible way than was the case in earlier times in view of the principles of positive case flow management.
Equally, referring to case management authorities as to the modern function of pleadings, it is often sought to justify an overly lengthy pleading by reference simply to whether it identifies the issues, discloses an arguable claim and informs the parties of the case that has to be met. The strictures of O 20 r 8(1) are ignored. Evidence is pleaded, either under the guise of being a material fact or by way of particulars, and the particulars themselves go beyond that which is necessary.
It is simply wrong to read decisions such as Barclay Mowlem Construction Ltd v Dampier Port Authority as in any way condoning this approach. To the contrary, the goal in O 1 r 4A of the Rules of the Supreme Court 1971 (WA) and the objects of O 1 r 4B are best achieved through conscientious adherence to O 20 r 8(1). Prolixity obscures identification of the true issues in contention and adversely impacts on the proper and efficient preparation of a case and its presentation at trial. Where this style of pleading must be responded to a vast number of false issues will be raised. It places a significant burden on the parties, in terms of costs, and also the resources of the court.
The requirements of O 20 r 8(1) should be observed in preparing a pleading. Practitioners may do so confident in the knowledge that a summary statement of the material facts - and only such a summary statement - is what is required by the rules. The true significance of the case management authorities in this area is that it is unnecessary to encumber a pleading with unnecessary particulars, and all the more so evidence, as it is inevitable that there will be subsequent pre-trial disclosure of the evidence to be adduced at trial.
A pleading must identify the issues, disclose an arguable claim or defence, and inform the parties of the case to be met. In doing so it should be clear and complete but concise. That standard is not met by over-complicating the pleading with unnecessary particulars and evidence.
A prolix pleading, offending the requirements of O 20 r 8(1) by its incorporation of unnecessary or irrelevant material, may be struck out on the ground that it will prejudice, embarrass or delay the fair trial of the action. Doing so, approaching the pleading as a whole rather than requiring the other party and the court to undertake the oppressive task of surgical excision to remove all but the material facts, will often be the means most conductive to meeting the goal in O 1 r 4A and the objects of O 1 r 4B. (footnotes omitted)
[8] National Australia Bank Ltd v Rowe [2018] WASC 330.
[9] Rowe v National Australia Bank Ltd [2019] WASCA 140; (2019) 56 WAR 1 [165] (Murphy JA & Sofronoff AJA).
[10] National Australia Bank Ltd v Rowe [1] - [7] (Vaughan J).
The statement of claim
Paragraphs not impugned
I will begin by summarising the content of the few paragraphs that are not the subject of the present application.
(a)Paragraphs 1 to 4E: the plaintiff pleads the occupations, and where relevant the offices, held by him and each of the defendants, together with certain other personal details. The plaintiff also pleads various matters establishing personal and professional connections between the defendants that he alleges are relevant.
(b)Paragraphs 5 to 10 and 11 to 16: the plaintiff pleads the publication of the First Article and the Second Article (and various versions of each) and the imputations conveyed by them in a conventional manner.
(c)Paragraphs 17: the plaintiff pleads matters relied on him to sustain a claim for aggravated damages.
Paragraphs 4F to 4M
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.
Paragraphs 4F to 4M - an outline of the parties' contentions
The defendants contend the matters pleaded in pars 4F to 4M are irrelevant to any cause of action. They emphasise the paragraphs do not plead any conduct on the part of the defendants and there is no allegation that the defendants had personal knowledge of any of the matters alleged. The defendants contend that pars 4F to 4M do not support any allegations subsequently pleaded by the plaintiff and further, they raise substantial matters of fact the resolution of which will adversely affect the efficient disposition of the action.
The plaintiff argues that pars 4F to 4M are not meant to be read in isolation and they are pleaded in support of other paragraphs of the statement of claim. The plaintiff relies on them as facts that, taken with other pleaded matters, establish that:
(a)the fourth to seventh defendants agreed to provide a copy of the Recording to the third defendant intending that the first to third defendants would publish material based on the Recording;[11]
(b)the fourth to seventh defendants were involved in and are liable for the publication of the articles;[12]
(c)by agreeing to hand over a copy of the Recording, the fourth to seventh defendants agreed to conspire to cause harm to the plaintiff;[13]
(d)by agreeing to publish the articles, the first and third defendants joined in the conspiracy to cause harm to the plaintiff;[14] and
(e)the predominant purpose of the alleged conspiracy was to cause harm to the plaintiff.[15]
[11] Statement of claim filed 30 September 2022 [16C] and [16D].
[12] Statement of claim filed 30 September 2022 [16E].
[13] Statement of claim filed 30 September 2022 [18A].
[14] Statement of claim filed 30 September 2022 [19].
[15] Statement of claim filed 30 September 2022 [20].
Further the plaintiff contends that pars 4F to 4M do not raise substantial matters of fact likely to unduly protract the trial as most of the facts pleaded are on public record or are matters of which the defendants do or would be expected to have knowledge of or will be easily ascertainable through public records and discovery.
Paragraphs 4F to 4M - disposition
The matters pleaded in these paragraphs are not material facts that are required to be pleaded for the purpose of either the defamation causes of action or the unlawful conspiracy cause of action. As the defendants contend the paragraphs do not plead conduct on the part of the defendants. They are incapable of establishing any of the matters referred to in the plaintiff's contentions. They are irrelevant. The paragraphs will be struck out on the grounds that they are embarrassing and will prejudice and delay the fair trial of the action.
Paragraphs 4N to 4V, 4BM and 4BN
Paragraphs 4N to 4V, 4BM and 4BN must be read with 4BD, 4BE and 4BF. Each of the paragraphs are reproduced below:
Meetings attended by Mr Aaron Grainger
4N On 15 January 2019, the plaintiff attended a meeting arranged through the PDC at the Subiaco Hotel with Mr Aaron Grainger, Mrs Melissa Grainger and Ms Lisa Taylor (an officer of the PDC).
4O The purpose of the meeting was to enable Mr Grainger to discuss with the plaintiff on behalf of the PDC a proposal that Mr Grainger's business would take contaminated soil from the Forrestfield Airport Link Project and bury it in land in the Peel Region at Lot 3 Buller Road, Waroona (Buller Road Land).
4P The Buller Road Land:
4P.1 is and was at all material times was owned by AMG(WA) Pty Ltd, a company of which Mr Grainger is and was at all material times the sole director and majority shareholder.
4P.2 had previously been used for mining;
4P.3 was then available to use as a potential site for landfill;
4P.4 was adjacent to the Buller Road Refuse Site at 702 Buller Road, Waroona which is and since at least 2016 has been known to the general public to be contaminated and leaching liquid waste;
4P.5 is and was at all material times in the Shire of Waroona local government area, the State Division of Dawesville and the Federal Division of Canning;
4P.6 was on 7 December 2021 conditionally approved by the Waroona Shire Council to be used for the development of a landfill facility.
4Q Without the knowledge or consent of the plaintiff, Mr Grainger covertly recorded the meeting using a listening device (within the meaning of that term in the SD Act) (Recording).
4R On 11 February 2019, Mr Grainger and Ms Bradley scheduled a meeting for Mr Grainger to meet with Mr Hastie at Mr Hastie's electoral office.
4S The purpose of the meeting was to discuss town planning issues Mr Grainger was having with the Shire of Waroona and in particular the obtaining of a land clearing permit in relation to the Buller Road Land.
4T At approximately 11:30am on 25 February 2019, Mr Grainger, Mrs Grainger, and Mr Grainger's business associates Mr Frank Nannup and Mr George Walley met with Mr Hastie and Ms Bradley at Mr Hastie's electoral offices at Unit 2, 61 Sutton Street, Mandurah for about 1.5 hours and discussed, among other things, the issues Mr Grainger was having with the Shire of Waroona.
4U During the meeting:
4U.1 Mr Grainger said he had met with the plaintiff and discussed his contaminated soil proposal, and informed Mr Hastie (and others in attendance) that he had recorded that meeting;
4U.2 Mr Hastie requested that Mr Grainger send him a copy of the Recording,
4U.3 Mr Grainger said he would do so on the basis that the Recording would not be disclosed without Mr Grainger's consent and Mr Hastie agreed;
4U.4 Mr Hastie asked Mr Grainger to send a copy to Ms Bradley's personal email address (as opposed to Ms Bradley's office email address) which Mr Hastie provided to Mr Grainger; and
4U.5 at approximately 12:35pm, Mr Grainger sent a copy of the Recording by email to Ms Bradley using her personal email address.
4V Save that on 15 January 2019 he sent a copy of the Recording to his solicitor, Mr Craig Wallace of Lavan Legal, Mr Grainger did not provide a copy of the Recording to anyone else prior to 1 March 2019.
…
4BEOn about 25 or 26 February 2019, Ms Bradley provided a copy of the Recording to Mr Hondros.
4BFFurther or in the alternative, on about 25 or 26 February 2019, Mr Birch provided a copy of the Recording to Mr Hondros.
4BGFurther or in the further alternative, on about 25 or 26 February 2019, Mr Hastie provided a copy of the Recording to Mr Hondros.
…
4BM At about 12:24pm on 27 February 2019, Mr Grainger telephoned Mr Hastie, the duration of the call went for approximately 2 minutes and 57 seconds.
4BN During that phone call, alternatively during the telephone call between Mr Grainger and Mr Hastie pleaded at paragraph 10C below, alternatively during a call:
4BN.1 Mr Grainger informed Mr Hastie that he had been contacted by Mr Hondros and asked questions about the Recording;
4BN.2 Mr Grainger reminded Mr Hastie that Mr Hastie had promised not to share the copy of Recording with anyone without Mr Grainger's prior consent (and that his consent had not been sought prior to giving the Recording to Mr Hondros); and.
4BN.3 Mr Hastie said words to Mr Grainger to the effect that he (Mr Hastie) had disclosed the Recording to the media.
Further particulars
Further particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
Paragraphs 4N to 4V, 4BM and 4BN - an outline of the parties' contentions
The essence of the defendants' attack on these paragraphs is that the relevance of the allegations made in them is 'obtuse and confusing', which I take to be another way of contending that the paragraphs are irrelevant and unnecessary.
The plaintiff's contention is as follows:[16]
61.Again, the pleaded facts are relied upon in support of other pleas. They are rationally capable [of] supporting pleaded facts and the drawing of inferences. For example, the pleas are expressly relied upon in ASSOC [17] as part of the conduct alleged to give rise to liability for publication of defamatory matter. Further, the use of a personal email address when an official email address would have been appropriate and Mr Hastie's failure to obtain Mr Grainger's consent to disclosure would support an inference that, in providing the illegal recording to Mr Hondros, the political defendants intended to cause harm to the plaintiff: ASSOC[18A], [20]. [the reference to ASSOC [17] is a typographical error – the reference should be to ASSOC [16]].
Paragraphs 4N to 4V, 4BM and 4BN - disposition
[16] Plaintiff's submissions filed 23 March 2023 [61].
I would allow pars 4N and 4Q to stand because the meeting held on 15 January 2019 and the recording of it are relevant to the claim for aggravated damages in par 17. For the reasons I explain below I will strike out the paragraphs pleading the conspiracy claim in their entirety. Had I not done so I would have allowed pars 4U and 4U.5 to stand (as well as pars 4N and 4Q) because the provision of the Recording to the fourth defendant by Mr Grainger and the circumstances in which that occurred are material to the conspiracy claim.
I would strike out the balance of the paragraphs. Paragraphs 4O, 4P, 4R, 4S, 4T, 4U.1 - 4U.4 plead matters which are irrelevant and which if allowed to stand will give rise to false issues. Paragraphs 4BM and 4BN plead evidence. That those paragraphs are directed to pleading an admission by the sixth defendant does not justify their inclusion in the statement of claim - the contents of the paragraphs remain evidence that should not be included in the pleading. In this respect I observe that a theme running through the statement of claim and the plaintiff's submissions in opposition to the strike out application and which is manifested in par 61 of the plaintiff's written outline of submissions quoted earlier is that if a matter is capable of supporting pleaded facts and the drawing of inferences it may be pleaded. That approach is fundamentally inconsistent with the approach required by O 20 r 8(1) and it obscures the distinction between material facts and particulars on the one hand and evidence on the other.
Paragraphs 4W to 4BC, 4BG, 4BHA to 4BZ, 10A to 10C, 16A and 16B
With the exception of par 4X that pleads Ms Bradley sent a copy of the Recording by email to Mr Birch using his personal email address, these paragraphs plead telephone calls. In their written submissions the defendants classify the calls pleaded into seven categories. I set out those categories below with an example of one paragraph taken from each.
(a)Attempts to make telephone calls, calls that were not answered or calls of very limited duration between the defendants – pars 4AF, 4AG, 4AI, 4AL, 4AO, 4AP, 4AR, 4AV, 4BHA, 4BO, 4BR, 4BS, 4BT, 4BV, 4BX and 16A exemplified by par 4AF which is as follows:
At approximately 3:54pm on 25 February 2019, Mr Kirkup attempted to telephone Mr Hastie who did not answer.
(b)Telephone calls of some duration between the defendants -pars 4Y, 4AC, 4AE, 4AH, 4AJ, 4AN, 4AQ, 4AT, 4AU, 4AW, 4AX, 4BB, 4BC, 4BHB, 4BP, 4BQ, 4BU, 4BW, 4BY, 4BZ, 10A, 10B and 16B exemplified by par 4Y which is as follows:
At approximately 1:39pm on 25 February 2019, Mr Hastie telephoned Mr Kirkup, the duration of the call went for approximately 3 minutes and 42 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
(c)A telephone call from an unidentified person to the third defendant - par 4WA which is as follows:
On or about 25 February 2019, Mr Hondros received a telephone call from a person whose telephone number is not known to the plaintiff, which person told Mr Hondros he would receive a copy of a recording.
Particulars
Particulars of the identity of the person who called Mr Hondros and the balance of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
(d)Telephone calls between the seventh defendant and a journalist from the Mandurah Mail - pars 4Z and 4AD exemplified by par 4Z which is as follows:
At approximately 1:47pm on 25 February 2019, Mr Kirkup telephoned Ms Caitlyn Rintoul, a journalist for the Mandurah Mail, the duration of the call went for approximately 7 minutes and 26 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
(e)Telephone calls between the first and third defendants, both then employed by the second defendant - pars 4AK and 4AM exemplified by par 4AK which is as follows:
At approximately 4:43pm on 25 February 2019, Mr Hondros telephoned Ms Hedley, the duration of the call went for approximately 3 minutes and 45 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
(f)Telephone calls between one of the defendants and Mr Grainger - pars 4W, 4AA (19 seconds), 4AB, 4AY, 4BA, 4BI, 4BJ, 4BK, 4BM, 4BR (10 seconds), 4BS and 10C exemplified by par 4AB which is as follows:
At approximately 1:49pm on 25 February 2019, Mr Grainger telephoned Mr Hastie, the duration of the call went for approximately 2 minutes and 22 seconds.
(g)Telephone calls between the fifth and sixth defendants - pars 4AS, 4AZ, 4BG and 4BL exemplified by par 4AZ which is as follows:
At about 12:42pm on 26 February 2019, Mr Birch telephoned Mr Hastie, the duration of the call went for approximately 10 minutes and 6 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
Paragraphs 10A to 10C, 16A and 16B are as follows:
Conduct subsequent to First Article, prior to Second Article
10A At about 4:58pm on 27 February 2019, Mr Kirkup telephoned Mr Hondros, the duration of the call went for approximately 1 minute and 18 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
10B At about 9:15am on 28 February 2019, Mr Hastie telephoned Mr Hondros, the duration of the call went for approximately 5 minutes and 21 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
10C At about 12:49pm on 28 February 2019, Mr Grainger telephoned Mr Hastie, the duration of the call went for approximately 1 minute and 30 seconds.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
…
Conduct subsequent to Second Article
16A At about 3:58pm on 28 February 2019, Mr Hastie telephoned Mr Hondros who did not answer.
16B At about 7:51pm on 28 February 2019, Mr Hastie telephoned Mr Kirkup, the duration of that call was for approximately 10 minutes and 1 second.
Particulars
Particulars of the substance of the call will be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
Paragraphs 4W to 4BC, 4BG, 4BHA to 4BZ, 10A to 10C, 16A and 16B - an outline of the parties' contentions
The defendants contend each of these paragraphs should be struck out as they are 'speculative',[17] and do no more than plead 'bald allegations' that the telephone calls took place. No allegation is made as to the subject matter or substance of the discussion. On that basis the defendants contend the paragraphs raise irrelevant issues and should be struck out together with the references to the telephone calls in pars 16C to 16E (that plead the fourth to sixth defendants are liable for the publication of the Articles due to providing a copy of the Recording to the third defendant) and pars 18A to 20 (paragraphs forming part of the conspiracy plea).
[17] ts 238.
The plaintiff contends that the number of telephone calls (40 calls and 10 attempted calls), the short period of time over which they were made (51 hours), the parties to them and their close proximity in time to the provision of the Recording to the third defendant and the publication of the articles, (together with other pleaded facts) provide material facts from which the defendants' liability as publishers of defamatory matters may be established and from which the court may draw inferences, for example as to the agreement between the fourth to seventh defendants, to provide the Recording to the third defendant. As such, the plaintiff contends that all the phone calls are relevant and should not be struck out. Further, the plaintiff contends that the substance of most of the phone calls is peculiarly within the defendants' knowledge and that further particulars will be provided following the administering of interrogatories.
Paragraphs 4W to 4BC, 4BG, 4BHA to 4BZ, 10A to 10C, 16A and 16B - disposition
It is plain beyond peradventure that the telephone calls are not material facts required to be pleaded for the purpose of the defamation causes of action. Specifically, in the absence of any pleading of the subject matter or substance of any of the telephone calls, there is no basis upon which it can be argued that the fact they occurred is material to the allegation that the fourth to seventh defendants published the Articles. In any event, for the reasons I give later, pars 16C to 16E do not disclose a reasonable cause of action against the fourth to seventh defendants as publishers of the Articles and, again in any event, the telephone calls provide no support for the plaintiff's case that the fourth to seventh defendants were publishers of the Articles.
Further, I do not accept that the telephone calls as pleaded in the statement of claim constitute conduct from which an agreement to cause harm to the plaintiff can be inferred. Accepting that a pleading of a conspiracy to harm a person will often depend on pleading conduct of the alleged conspirators from which inferences may be drawn, the plaintiff's case, relying on the making by individuals of a series of telephone calls unsupported by any pleading of the content of the conversations that took place when the calls were answered, is one based on nothing more than speculation and suspicion. That the content of the conversations is within the defendants' knowledge is not a basis upon which the paragraphs pleading the telephone calls should be permitted to stand. Allegations should not be pleaded unless there is a proper factual foundation for them. What amounts to a proper factual foundation will vary with the circumstances but it is not permissible to plead a large number of conversations in support of the serious allegation of a conspiracy to harm by unlawful means, seemingly on the basis of speculation and suspicion as to what may have been said in those conversations, in the hope that the case may be made out by answers to interrogatories.
Paragraph 4BH
Paragraph 4BH is as follows:
4BH At about 8:59am on 27 February 2019, Ms Hedley sent a list of questions relating to the meeting between Mr Grainger and the plaintiff on 15 January 2019 to Ms Andrea Kelly, the Corporate Communications Coordinator at the PDC by email claiming to have a copy of the Recording and seeking the plaintiff's response for inclusion in what would become the First Article.
Paragraph 4BH - an outline of the parties' contentions
The defendants contend that the allegations in par 4BH are irrelevant and, in particular, do not support the matters pleaded in pars 16C to 16E and pars 18A to 20.
The plaintiff contends that par 4BH is relevant, as, 'taken together with the numerous phone calls and other pleaded facts, the first defendant's attempt to contact the plaintiff and its timing are material facts that provide support for the inferences the plaintiff alleges are to be drawn'.[18] Further, the plaintiff contends that the plea is at least relevant as a background fact that causes no prejudice or embarrassment to the defendants and will not delay the fair trial of the action. They point to the fact that the plea is also identical to that in par 19 particular 5(l)(vii) of the second further re-amended defence filed 1 June 2022.
Paragraph 4BH - disposition
[18] Plaintiff's submissions filed 23 March 2023 [69].
I accept the defendants' contention. The matters pleaded in this paragraph are not relevant. Further, it is implicit in the plaintiff's submissions that the paragraph pleads evidence. The paragraph will be struck out on the ground that it is embarrassing.
Paragraphs 16BA to 16BG
Paragraphs 16BA to 16BG are as follows:
16BA On 19 August 2021, the Hon. Justice Le Miere made orders granting leave to the plaintiff to join the fourth to sixth defendants to these proceedings.
16BB On 21 October 2021, the Nine Entertainment Co group of companies (Nine) offered to the fourth to sixth defendants to fund future legal costs and pay any damages settlement sum(s) or costs that may become payable by them pursuant to any adverse costs order, with Nine to take carriage of the matter and defend and/or settle the matter on their behalf act for the fourth to sixth defendants, which offer was accepted by Mr Hastie.
Particulars of offer and acceptance
The offer was made by letter from Banki Haddock Fiora (BHF), the firm of solicitors acting for the first to third defendants, to Kennedys, the firm of solicitors then acting for the sixth defendant, dated 21 October 2021. The plaintiff does not presently know when or the manner in which the offer was accepted but the acceptance may be inferred from the matters pleaded in paragraphs 16BC to 16BE below.
16BC In about November 2021, BHF commenced acting for the fourth to sixth defendants in respect of these proceedings.
16BD On 16 November 2021, Mr Hastie notified the registrar of the Parliament of Australia's Register of Members' Interests that legal advice and representation was being provided to him by Nine.
16BE In or about early November 2021, the Managing Director of Fairfax Digital (which is part of Nine), Mr James Chessell made public statements (Chessell Statements) to the effect, among other things, that Nine supports its journalists' sources who are joined to defamation proceedings, including the fourth to sixth defendants.
Particulars
Statements attributable to Mr Chessell were made in a manner and at a time not known to the plaintiff to, or to a person or persons who provided them to, Mr Hamish Hastie, a journalist for Fairfax Digital. The statements were subsequently published in online articles with the heading 'Nine lawyers to represent Andrew Hastie in defamation case' on the WAtoday Website and the website for the Sydney Morning Herald (a website maintained by Fairfax Digital) on and from 22 November 2021. Further particulars may be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
16BF On 18 January 2022, the plaintiff filed a chamber summons in the within proceedings for orders for the joinder of Mr Kirkup as the seventh defendant.
16BG In about January 2022, BHF commenced acting for Mr Kirkup in respect of these proceedings.
Paragraphs 16BA to 16BG - an outline of the parties' contentions
The defendants contend that these paragraphs are irrelevant to any issue in the action.
The plaintiff contends that read together pars 16BA to 16BG support the inference that the fourth to seventh defendants' representation by the same solicitors as the first to third defendants 'demonstrates that [the fourth to seventh defendants] were relevant sources in relation to the plaintiff's claim'.[19] The plaintiff also argues that these paragraphs support inferences 'as to the pleaded agreement and the intention on the part of the defendants', that is, the agreement and intention to cause harm that form part of the conspiracy plea.[20]
Paragraphs 16BA to 16BG - disposition
[19] Plaintiff's submissions filed 23 March 2023 [71].
[20] Plaintiff's submissions filed 23 March 2023 [71].
I accept the defendants' contention that the matters pleaded in these paragraphs are irrelevant. Further, and relatedly, as appears to be accepted by the way in which the plaintiff's contentions in support of the paragraphs are expressed, the paragraphs plead evidence and not material facts. They will be struck out on the grounds that they disclose no reasonable cause of action and, further are embarrassing.
Paragraphs 16C, 16D and 16E
Paragraphs 16C, 16D and 16E are as follows:
The fourth to seventh defendants' liability for publication of the Articles
16C On about 25 February 2019, the fourth to seventh defendants agreed to provide a copy of the Recording to Mr Hondros.
Particulars
The precise details are not known to the plaintiff but may be inferred from the matters pleaded in paragraphs 2 to 4BZ, 10A to 10D and 16A to 16BG above. Further particulars may be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
16D The intended alternatively the natural and probable consequence of the fourth to seventh defendants agreeing to provide and thereafter providing a copy of the Recording to Mr Hondros was that the first to third defendants, alternatively Mr Hondros and WAtoday, would publish an article or articles quoting from or publishing the substance of the copy of the Recording and conveying the imputations pleaded in paragraphs 9 and 15 above.
Particulars
The fourth to seventh defendants' intention is evidenced by and may be inferred from the matters pleaded in paragraphs 2 to 4BY and 16A to 16BG above.
Further particulars may be provided following discovery and inspection, the issue of subpoenas and/or the administering of interrogatories.
16E By reason of the matters pleaded in paragraphs 2 to 4BZ, 10A to 10D and 16A to 16BG, each of the fourth to seventh defendants were involved in and are therefore also liable for the publication of the Articles.
Paragraphs 16C, 16D and 16E - an outline of the parties' contentions
The defendants' overarching complaint about pars 16C and 16D is that they do not state the plaintiff's case sufficiently clearly to allow the defendants a fair opportunity to meet it. The points made in support of this contention in respect of par 16C are as follows. First, the defendants say it is unclear whether the agreement alleged was one solely between the fourth to seventh defendants or whether the third defendant was a party to the agreement. The defendants argue the uncertainty is compounded by the plea in par 18A that '[b]y agreeing to provide a copy of the Recording to the first to third defendants, the fourth to seventh defendants conspired …'. Secondly, the defendants argue that some of the paragraphs referred to in the particulars do not even concern the third defendant, or the fourth to the seventh defendants, or their conduct in relation to the existence of the alleged agreement. Thirdly, the defendants make the point that the plaintiff relies on the fact of telephone calls between the third defendant, who may or may not have been a party to the agreement, and parties who are not alleged to have been parties to the agreement, the first defendant and Mr Grainger.
The defendants attack par 16D on the same basis, namely the uncertainty as to the parties to the agreement.
Additionally, and more fundamentally, the defendants contend that par 16D does not disclose a reasonable cause of action. The defendants argue par 16D does not allege that the Recording contains material defamatory of the plaintiff and, consequently, the plea that the fourth to seventh defendants agreed to provide the Recording to the third defendant does not provide support for the allegations that the intended or natural and probable consequence of providing the Recording to the third defendant was the publication of an article conveying the defamatory imputations pleaded by the plaintiff.
The defendants contend that par 16E should be struck out as it is not supported by the particulars subjoined to the paragraph or that such particulars are vague and embarrassing. There are no particulars to par 16E but I understand the substance of the defendants' complaint to be that the paragraphs to which reference is made in the body of the paragraph (pars 2 to 4BZ, 10A to 10D and 16A to 16BG) do not support the plea that the fourth to seventh defendants were involved in the publication of the articles. The defendants make these points:
(a)Paragraphs 4F to 4M provide political background which is not relevant and is not alleged to have been known to the fourth to seventh defendants and thus provides no support to the allegation that the fourth to seventh defendants were involved in the publication of the articles.
(b)Neither the allegation in par 4WA that on or about 25 February 2019 the third defendant received a telephone call from a person who told him he would receive a copy of a recording, nor the allegation in par 4Z that on 25 February 2019 the seventh defendant telephoned Ms Rintoul of the Mandurah Mail, nor the allegation in par 4AD that on 25 February 2019 the seventh defendant telephoned a journalist at the Mandurah Mail, provide any support to the allegation that the fourth to seventh defendants were involved in the publication of the articles.
(c)The pleading of the telephone calls without any detail about the subject matter of the telephone calls or the substance of them provides no support for the allegation the fourth to seventh defendants were involved in the publication of the articles.
(d)Paragraphs 10A to 10D and pars 16A to 16BG plead matters alleged to have occurred after the date of publication of the Articles and are, therefore, irrelevant to an allegation that the fourth to seventh defendants were involved in their publication.
The plaintiff contends that pars 16C to 16E are clear in their terms in alleging an agreement between the fourth to seventh defendants and those pleas go towards establishing their liability for the publication of the Articles.
In response to the criticism of par 16D, the plaintiff contends that it is plainly arguable as, ordinarily when a person provides information to a journalist, in this instance the third defendant, it may be inferred that the expectation of that person will be that the information will be published in a news medium.
The plaintiff supports the pleas in pars 16C, 16D and 16E with a reference to the principle that liability as a publisher of defamatory material extends to persons who have been instrumental in, or who contribute to any extent to, the publications of defamatory matter.[21]
[21] Fairfax Media Publications Pty Ltd v Voller [2021] HCA 27; (2021) 273 CLR 346 [25] (Kiefel CJ, Keane & Gleeson JJ), [62] (Gageler & Gordon JJ), [133] (Edelman J), [149] (Steward J).
In response to the criticisms of par 16E the plaintiff contends that the defendants' submissions are misconceived as par 16E contains no particulars. The plaintiff argues that if the complaint is that the paragraphs referenced in the body of par 16E cannot arguably support the plea in that paragraph, the answer is not to strike out the paragraph but to strike out the references to the other paragraphs.
Paragraphs 16C, 16D and 16E - disposition
I will begin by addressing the most fundamental issue raised by the defendants, namely whether the provision of the Recording to the third defendant, is sufficient to make the fourth to seventh defendants liable as publishers of the First Article and the Second Article. In this respect it is important to observe the plaintiff does not allege that the Recording itself contained defamatory matter or that the fourth to seventh defendants played any part in either the writing, or the making available for downloading, of the Articles.
In Webb v Bloch,[22] on instructions from a member of a committee, a solicitor, Mr Norman, prepared a circular that was found to defame the appellant, Mr Webb. One of the respondents, Mr Bloch (a committee member) instructed Mr Norman to issue the circular. Other members of the committee subsequently resolved to confirm Mr Bloch's instructions but when they did so they had not seen the circular and nor did they know what it contained. Mr Bloch and the members of the committee who had confirmed his instructions to issue the circular were held to be publishers. In a frequently cited passage Isaacs J explained the meaning of 'publication' by reference to the commentary in well-known texts as follows:[23]
The meaning of "publication" is well ·described in Folkard on Slander and Libel, 5th ed. (1891), at p. 439, in these words: "The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally lent his assistance to us existence for the purpose of being published, his instrumentality is evidence to show a publication by him." In Starkie on the Law of Slander and Libel, 1st ed. (1830), vol. II., at p. 29, it is said: "The declaration generally avers, that the defendant published and caused to be published; but the latter words seem to be perfectly unnecessary either in a civil or criminal proceeding; in civil proceedings, the principal is to all purposes identified with the agent employed by him to do any specific act" &c. In Parkes v Prescott Giffard Q.C. quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected." (original emphasis)
[22] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331.
[23] Webb v Bloch (363 - 364) (Isaacs J).
In Fairfax Media Publications Pty Ltd v Voller,[24] in the course of addressing a submission that, in the context of the law of defamation, publication requires an intention to disseminate the defamatory matter, Kielel CJ, Keane and Gleeson JJ said that Webb v Bloch is to be understood to say that a person who has been instrumental in, or contributes to any extent to, the publication of a defamatory matter is a publisher and that all that is required is a voluntary act of participation in its communication.[25] Their Honours went on to say that Isaacs J may be understood to have acknowledged that publication may involve acts of participation other than, and which may precede, the actual physical distribution of the defamatory material and that his Honour was not to be understood to say that a person must intend to communicate the material complained of as defamatory in order to be a publisher.[26]
[24] Fairfax Media Publications Pty Ltd v Voller.
[25] Fairfax Media Publications Pty Ltd v Voller [32] (Kiefel CJ, Keane & Gleeson JJ).
[26] Fairfax Media Publications Pty Ltd v Voller [35] (Kiefel CJ, Keane & Gleeson JJ).
The principles stated in Webb v Bloch and explained in Fairfax Media Publications Pty Ltd v Voller do not support the proposition that a person, who provides material, not itself defamatory, to a journalist who incorporates it in a matter that contains defamatory material, is a publisher. Further, this proposition was rejected by McCallum J (as her Honour then was) in Dank v Whittaker (No 1),[27] and her Honour's reasoning was upheld on appeal.[28] Although the decision in Dank v Whittaker (No 1) preceded Fairfax Media Publications Pty Ltd v Voller there is nothing in the judgments of the members of the High Court in Fairfax Media Publications Pty Ltd vVoller that casts doubt on the reasoning in Dank v Whittaker (No 1).
[27] Dank v Whittaker (No 1) [2013] NSWSC 1062.
[28] Dank v Cronulla Sutherland District Rugby League Football Club Ltd [2014] NSWCA 288.
In Dank v Whittaker (No 1), McCallum J was dealing with strike out applications in two separate proceedings. The common theme was that in defamation actions against media outlets the plaintiff had joined as defendants 'medical experts' who had been interviewed by the authors of the allegedly defamatory articles. The articles quoted comments by the medical experts but those comments were not of themselves alleged to have been defamatory. The plaintiff maintained that the 'medical experts' were accessories to the publication and had conduced the publication and should be considered liable as principals. McCallum J noted that on the issue of joint liability as a publisher, counsel for one of the strike-out applicants (Mr Richardson) had submitted that to establish that a person is jointly liable as an original publisher of allegedly defamatory matter, it is necessary to establish either control or assent to the publication. Her Honour then said:[29]
Having reviewed the authorities relied upon, I accept that to be a correct statement of principle. The notion of control is comprehended within the role of a person such as the proprietor of a newspaper, an editor who determines what is published and, ordinarily, the author of the defamatory matter (although it is well recognised that a journalist, whilst responsible for the words written by him or her, is not necessarily liable for headlines or images added during the editorial process). Absent participation in a publication at that level of control, a person who merely contributes part of what is published will not be jointly liable as an original publisher of the whole unless he or she assents to its final form. (emphasis added)
The starting point in considering the relevant principles is the well-known statement in Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331 relied upon by the plaintiff in the correspondence set out above (at 364.3 per Isaacs J, emphasis in original):
In Parkes v Prescott, Giffard QC quotes from the second edition of Starkie: "All who are in any degree accessory to the publication of a libel, and by any means whatever conduce to the publication, are to be considered as principals in the act of publication: thus if one suggest illegal matter in order that another may write or print it, and that a third may publish it, all are equally amenable for the act of publication when it has been so effected."
As has previously been observed, however, that statement needs to be approached with an understanding of the context in which it was made. Mr Richardson relied on the following passage from the decision of the Full Court of the Supreme Court of Queensland in Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156 at 194 to 195 where, after referring to a statement of the principles of publication from Gatley on Libel and Slander and the statement from Webb v Bloch set out above, the Court said:
So much must be accepted. It is necessary, however, to use care in applying general statements of this kind. Those who made them were directing attention to identifiable defamatory statements, to the publication of which in the completed form the defendant in question was held to have given his authority or approval or to the final form of which he had contributed. Webb v Bloch was an instance of that kind. The defamatory circular in that action was drafted by the solicitor Norman on instructions from the defendant Bloch. Bloch received the draft on 10 February 1926 although none of the other defendants saw it then. On 16 February 1926 Bloch instructed Norman to issue the circulars and his action in doing so was confirmed on 22 February by the Victorian committee, of which all the defendants were members. Starke J. (41 C.L.R. 331, 340) regarded this act of confirmation as rendering all the defendants responsible in law for the issue of the circular. His Honour considered Norman not as the author of the circular "but rather as the amanuensis of the defendants" (41 C.L.R. 331, 342). On appeal, Knox C.J. agreed with Starke J. in thinking that all defendants were responsible in law for the publication of the circular (ibid., at 347). Gavan Duffy J. would have dismissed the appeal from the judgment given by Starke J. in favour of the defendants (ibid., at 375). Only Isaacs J. found it necessary to examine the authorities in order to discover what may have been a wider basis of liability.
What is said in Webb v Bloch and Gatley would perhaps suffice to make Woodham liable with TCN 9 if he had seen the script or viewed the programmes before publication; but the evidence is that he did not do so. The decision in Webb v Bloch is concerned with a case that is in some ways the direct converse of this. There the question was whether the defendants were principals of the solicitor Norman, who was the author and publisher of the defamatory circulars. No one suggests that Woodham was the principal of TCN 9 as author and publisher of the television programmes. He is not shown to have exercised control over its final form. At most he played a subsidiary and intermediate, if important, part in the creation of the product that in its finished state ultimately went to air. It is true that Woodham himself, or the visual image of Woodham, appeared in one or more of the programmes (principally the first ACA programme) broadcast by TCN 9, and that he was visible and audible to viewers as saying words that may have formed part of "the matter supporting the imputations or any of them". However, as we have seen, and despite the form of question, what the jury were asked to do was not to say whether Woodham published some, but whether he published all, of the matter supporting the defamatory imputations. Unless he was a co-publisher of all, the jury were, having regard to the way in which that question was left to them, entitled and indeed bound to find that he was not a co-publisher "with" TCN 9. As to that, the evidence is that there were some matters published about which Woodham knew little or nothing.
…
In my view, the authorities relied upon by Mr Richardson establish that, where a person merely contributes material to an article but has no control over the publishing process, liability as a publisher will not ordinarily be established unless he or she has assented to its final form.
[29] Dank v Whittaker (No 1) [22] - [24], [26].
I do not accept that the provision by the fourth to the seventh defendants of the Recording is sufficient to establish liability on their part for the publication of the Articles. It is not alleged that the provision of the Recording amounted to the communication of any defamatory matter by the fourth to seventh defendants to the third defendant. The plaintiff's case that the fourth to seventh defendants were publishers is not supported by Webb v Bloch as explained by the High Court in Fairfax Media Publications Pty Ltd v Voller and by McCallum J in Dank v Whittaker (No 1).
Further, I do not accept that any of the matters pleaded in the statement of claim support the plea that by the provision of the Recording to the third defendant, the fourth to seventh defendants intended to bring about the publication of an article or articles conveying the defamatory imputations relied on by the plaintiff. And, further, I do not accept that the natural and probable consequence of the provision of the Recording was the publication of an article or articles conveying the defamatory imputations relied on by the plaintiff (as opposed to an article about the plaintiff). That is a proposition that may be supported by post hoc ergo propter hoc reasoning but it is not supported by a rational or logical approach to causation.
While it appears as if par 16E should be read with pars 16C and 16D because they all appear under the heading 'The fourth to seventh defendants' liability for publication of the Articles' par 16E may be understood to plead a separate basis for imposing liability on the fourth to seventh defendants as publishers, that is, they were 'involved in' the publication. In the absence of any pleading that the fourth to seventh defendants' contribution to the composition and dissemination of the Articles extended beyond the mere provision of the Recording, the pleading that they were 'involved in' the publication is insufficient to make them liable as publishers.
For the reasons given I will strike out pars 16C, 16D and 16E on the grounds that they disclose no reasonable cause of action against the fourth to seventh defendants as publishers.
I would not have acceded to the defendants' application to strike out pars 16C and 16D on the grounds that the agreement alleged in those paragraphs is uncertain. I accept there is a degree of ambiguity as to whether the agreement alleged was between the fourth to seventh defendants or the fourth to seventh defendants and the third defendant but, I think, it is tolerably clear that what is being alleged in those paragraphs is an agreement between the fourth to seventh defendants. A small amendment to put this beyond doubt would have been desirable.
Paragraphs 18A to 23 - the conspiracy claim
Introductory observations
As noted earlier the primary basis on which the defendants contend that the conspiracy claim should be struck out in its entirety and leave to replead should be refused is that the claim is an attempt to obtain compensation for damage to reputation and that is the exclusive province of the law of defamation. I will address that contention before considering the other grounds on which the paragraphs pleading the claim are challenged.
The plaintiff pleads one conspiracy to which all defendants were a party. The six paragraphs pleading the conspiracy are interdependent and so striking out one paragraph requires them all to be struck out. I have, however, addressed the criticisms made by the defendant of each paragraph.
It is convenient to start with a short synopsis of the legal principles underpinning the tort of unlawful means conspiracy.
Unlawful means conspiracy - legal principles
The elements of an unlawful means conspiracy are:[30]
(a)a combination or agreement between two or more individuals;
(b)with an intent to injure the plaintiff;
(c)pursuant to which combination or agreement and with that intention certain unlawful acts were carried out; and
(d)resulting loss and damage to the plaintiff.
[30] CC Containers Pty Ltd v Lee [2011] VSC 537 [11] - [14] (Ferguson J) cited with approval in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2021] WASC 289 [93] (Allanson J).
There are two aspects to the element of 'unlawful means'. The first is that the acts involved are unlawful. The second is that the unlawful acts were the means of inflicting harm on the plaintiff.[31]
[31] Revenue and Customs Commissioners v Total Network SL [2008] 1 AC 1174 [96] (Lord Walker of Gestingthorpe), [119] (Lord Mance).
The existence of an intention to injure is a critical element of the tort. A plaintiff must prove that the unlawful act was done with the intention of injuring him and that it did so. Thus, a conspiracy to injure a person is distinguishable from an agreement to do an unlawful act that results in damage to that person.[32]
[32] Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 [7] (Kiefel & Jacobson JJ).
In Chong v CC Containers Pty Ltd,[33] in rejecting a submission to the effect that in the absence of direct evidence, the trial judge erred in finding there was an agreement to participate in a conspiracy, the Victorian Court of Appeal explained:[34]
As conspirators will ordinarily conceal their unlawful agreement, it will often be the case that there is no direct evidence of the combination. The conspiracy may be proved without direct evidence of an express agreement or understanding as to the common design. It is generally a matter of inference deduced from certain acts of the parties done in pursuance of the apparent purpose in common between them. The overt acts done in furtherance of the combination may support the inference that there was such an agreement or understanding to further the common unlawful object of the combination. Separate acts of co-conspirators may be relied upon which have such a concurrence of time, character, direction and result as naturally leads to the inference that these separate acts were the outcome of pre-concert or some mutual contemporaneous engagement evidencing the common object of the combination. A mere co-incidence of separate acts however, which by their conjoined effect cause damage, will not suffice. The evidence must be such as to permit it to be inferred that the acts were undertaken in pursuit of the common object so that it may be said that the actors acted in concert towards the common end.
Where circumstantial evidence is relied upon, it is 'the weight which is to be given to the united force of all of the circumstances' in combination which must be considered.
…
Conspirators may come and go from a conspiracy. They may join a conspiracy after its inception and leave the conspiracy before its conclusion. There is no requirement that each member of a combination communicate directly with all of the other parties. The means by which a common agreement or design is reached and given effect will greatly vary. It has long been recognised that there need be no direct communication between all those who are said to be conspirators so long as it is shown that they entered into the agreement with a common purpose. So an agreement may be made where there are one or more central figures around whom other conspirators revolve. There may be an agreement where one conspirator communicates with another who in turn communicates with another in the form of a chain and where various members of the conspiracy will not meet or be aware of the identity of other members of the conspiracy. As Herron CJ and Holmes JA observed in Ex parte Coffey; Re Evans:
[A]lleged conspirators may never have seen each other and have never corresponded. One may have never heard the names of the others and yet by law they may be parties to the same common criminal agreement provided there is proof of acts on both sides which may lead a jury to infer that they were engaged in accomplishing the same common object.
(footnotes omitted)
[33] Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402.
[34] Chong v CC Containers Pty Ltd [133] - [134], [147] (Redlich, Santamaria & Kyrou JJA).
The tort of conspiracy requires proof of actual pecuniary or financial loss as a result of the defendants' acts done in furtherance of their agreement.[35] Damages for conspiracy are at large in the sense that they are not limited to a precise calculation of the amount of actual pecuniary loss proved.[36]
The existence and application of the coherence principle
An outline of the parties' contentions
[35] Fatimi Pty Ltd v Bryant [2004] NSWCA 140; (2004) 59 NSWLR 678 [44] (Giles JA); Poland v Hedley [No 2] [2020] WASC 203 [19] (Le Miere J).
[36] Quinn v Leathem [1901] AC 495, 498.
The defendants contend there is a 'the long-standing principle' that requires a claim for compensation for injury to reputation to be brought as an action for defamation. The defendants argue that it is for this reason that the law does not impose on media organisations publishing news a duty of care to prevent defamatory publications from occurring. The defendants contend the stated rationale for the principle is the preservation of the coherence of the law, and to prevent a claimant seeking compensation for injury to reputation from sidestepping the defences available to a defendant in a defamation action.
The defendants rely on the decisions of the High Court in Sullivan v Moody,[37] and Tame v New South Wales,[38] and a series of decisions in which claims for loss of reputation brought otherwise than in defamation have been struck out. The most frequently cited decision is Sattin v Nationwide News Pty Ltd.[39] Sattin v Nationwide News Pty Ltd has been followed in a number of other decisions, Gacic v John Fairfax Publications Pty Ltd,[40] Morris v St Vincent's Health Australia Ltd,[41] and Griffith v Australian Broadcasting Corporation[42] and Walker v Veda Advantage Information Services & Solutions Ltd.[43]
[37] Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562.
[38] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317.
[39] Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32.
[40] Gacic v John Fairfax Publications Pty Ltd [2005] NSWSC 1210.
[41] Morris v St Vincent's Health Australia Ltd [2020] VSC 690.
[42] Griffith v Australian Broadcasting Corporation [2004] NSWSC 582.
[43] Walker v Veda Advantage Information Services & Solutions Ltd [2011] QSC 316.
On the basis of those authorities the defendants contend:[44]
17.Here, the plaintiff alleges, at SOC [20], that the predominant purpose of the alleged conspiracy was to "cause harm to the plaintiff". The harm the defendants allegedly intended to cause was reputational harm. That much is clear from the particulars of intention subjoined to SOC [20]. On any reading of the plaintiff's pleading, it is clear that the plaintiff is seeking compensation for injury to his reputation through the vehicle of a conspiracy claim.
18.The Sattin line of authority requires this Court to strike out the conspiracy claim in its entirety.
[44] Defendants' outline of submissions filed 3 March 2023 [17] - [18].
The defendants contend that unless the plaintiff is limited to defamation as a cause of action, there is a risk that the plaintiff circumvent long established principles including defences of justification and qualified privilege.[45]
[45] ts 234.
The defendants rely on the decision of Galland v Mineral Underwriters Ltd[46] to make a separate but related point that it is not open to a party to plead as an alternative to a substantive cause of action already pleaded, the tort of conspiracy to commit that wrong.
[46] Galland v Mineral Underwriters Ltd [1977] WAR 116.
The plaintiff disputes the existence of the long-standing principle for which the defendants contend. He points to the existence of other causes of action in which damages for injury to reputation can be recovered, for example, injurious falsehood, malicious prosecution, breach of contract and misleading or deceptive conduct.
The plaintiff contends that the authorities of Sattin v Nationwide News Pty Ltd, Sullivan v Moody and Tame v New South Wales have nothing to say about tortious conspiracy pleaded in parallel to a cause of action in defamation. The concern of those cases was the proper boundaries of a duty of care in negligence in somewhat novel circumstances and that the 'coherence of the law' would be undermined if a duty in negligence was imposed in a manner incompatible with the standards of defamation law. Coherence was invoked with respect to the duty question, and not as some broader free-standing principle.
The plaintiff contends that the court should not rely on the non-binding authorities of Gacic v John Fairfax Publications Pty Ltd, Morris v St Vincent's Health Australia Ltd and Griffith v Australian Broadcasting Corporation. The plaintiff advances various arguments as to why the persuasiveness of those authorities is limited.
The plaintiff develops an alternative argument to the effect that the loss that is the subject of his unlawful conspiracy plea is not loss of reputation but economic loss.
The coherence principle - disposition
I am not prepared to strike out the plaintiff's conspiracy claim on the grounds that it infringes the principle for which the defendants contend, that a claim for compensation for injury to reputation must be brought as an action for defamation. Notwithstanding par 20 and the plaintiff's reliance on the publication of the Articles to establish an intention to harm, the plaintiff is not seeking damages for loss of his reputation. Rather, in its present form, by par 23 the claim is restricted to pecuniary loss. Thus, the principle for which the defendants contend does not apply to the plaintiff's conspiracy claim as presently formulated. In those circumstances it is neither necessary nor appropriate to undertake a detailed consideration of the existence of the principle for which the defendants contend, and if it is held to exist, to consider its application to the plaintiff's claim. This is particularly so when for other reasons the claim in its present form will be struck out.
The defendants' reliance on the principle stated in Galland v Mineral Underwriters Ltd does not assist the strike out application because the unlawful means alleged by the plaintiff is not the publication of the defamatory material but the publication of the content of a conversation that was the subject of a recording made in breach of s 9 of the Surveillance Devices Act, conduct that was an offence but not a tort.
Paragraphs 18A and 19
Paragraphs 18A and 19 of the statement of claim are as follows:
Tortious conspiracy to injure by unlawful means
18A By agreeing to provide a copy of the Recording to the first to third defendants, the fourth to seventh defendants conspired to cause harm to the plaintiff by unlawful means through receipt and use of a recording of a private conversation in breach of the SD Act, without the knowledge or consent of the plaintiff, which resulted in the publication of the First and Second Articles.
Particulars of conspiracy
The precise details are not known to the plaintiff but the agreement may be inferred from the matters pleaded in paragraphs 2 to 4BZ, 10A to 10D and 16A to 16BG above. Further particulars may be provided following discovery and inspection, the administering of interrogatories, the issue of subpoenas and in any event prior to trial.
19 By agreeing to publish the First Article, the Second Article and the Third Article (together, the Articles), the first to third defendants joined in the conspiracy to cause harm to the plaintiff by unlawful means through the receipt of material forming the substance of the Articles and the subsequent publication of the First Article and the Second Article.
Particulars of conspiracy
The agreement between the first to third defendants may be inferred from:
(i) On or about 25 January 2019 or shortly thereafter, an unknown source or sources provided and Mr Hondros received material forming the substance of the First Article and the Second Article.
(ii) The first to third defendants subsequently published that material via the First Article in the manner pleaded in paragraphs 5 to 8 above and the Second Article in the manner pleaded in paragraphs 11 to 14 above.
(iii) The First Article and the Second Article were jointly published by the first to third defendants in that the publications, on their face, state that they are written "By Nathan Hondros and Kate Hedley", Mr Hondros and Ms Hedley are in the employ of Fairfax Digital and the First Article and the Second Article were published on platforms maintained by Fairfax Digital.
(iv) The admissions made in the Affidavit of Nathan John Hondros sworn 27 September 2019 and the Amended Defence filed 1 August 2019.
(v) The matters pleaded in paragraphs 2 to 4BZ, 10A to 10D and 16A to 16BG above.
Further particulars may be provided following discovery and inspection, the administering of interrogatories, the issue of subpoenas and in any event prior to trial.
Paragraphs 18A and 19 - an outline of the parties' contentions
The defendants make three closely related criticisms. First, they contend there is uncertainty as to whether there was an agreement between all seven of the defendants. Paragraph 18 pleads an agreement between the fourth to seventh defendants and par 19 pleads an agreement between the first to third defendants to publish the Articles, that is separate conspiracies and these pleas are to be contrasted with the allegations in pars 20 to 23 that appear to allege a conspiracy between all seven defendants. Secondly, the link between the two groups of defendants is expressed as follows, 'the first to third defendants joined in the conspiracy … through the receipt of material forming the substance of the Articles and subsequent publication of the First Article and the Second Article'. The defendants argue, in effect, that the mere receipt of material is insufficient to establish a conspiracy between all seven defendants. This inadequacy is compounded, so the defendants argue, by the plea in the particulars to par 19 that 'material forming the substance of the First Article and the Second Article' was received by the third defendant from an unknown source or sources on or about 25 January 2019. Thirdly, no facts alleging the first to third defendants knew of the conspiratorial purpose of the fourth to seventh defendants are pleaded. Further, the defendants argue that the incorporation by reference into particular (v) of the many allegations made in earlier paragraphs serves to confuse rather than elucidate.
The plaintiff contends that par 18A is clear in its terms particularly when considered with the pleas in pars 16C and 16D.
The plaintiff responds to the defendants' criticisms of par 19 by relying on the proposition that conspirators may join and leave the conspiracy at different times and need not communicate with each other so long as there is some agreement for a common purpose. The plaintiff cites the decision of Chong v CC Containers Pty Ltd,[47] as authority for this proposition. The plaintiff contends that the conspiracy can be established by pleading that the first to third defendants joined the conspiracy by agreeing to publish the content of the Recording to cause harm to the plaintiff. The defendant's submission that there is no plea of each defendant's knowledge of the others' purpose is therefore beside the point. The plaintiff argues that in the circumstances of this case the requisite agreement and intention pleaded in par 19 may be inferred from the pleaded facts as set out in the particulars to that paragraph. The plaintiff also argues that those who provide information to journalists ordinarily expect it to be published and that political figures often seek to harm their opponents.
Paragraphs 18A and 19 - disposition
[47] Chong v CC Containers Pty Ltd [147].
The pleas in pars 18A and 19 must be considered not only with the caution required when considering applications to strike out pleadings but with the appreciation (acknowledged in Chong v CC Containers Pty Ltd) that the agreement to harm will often be concealed and this creates obvious difficulties for a plaintiff wishing to plead a conspiracy. Acknowledging that difficulty does not, however, relieve a plaintiff of the requirement to plead the conspiracy with the level of precision necessary to ensure that the plaintiff's case is expressed with both clarity and certainty. There are a number of respects, some less serious than others, in which pars 18 and 19A fall short of these requirements:
(a)Paragraph 18 pleads that the fourth to seventh defendants agreed to provide the Recording to the first to third defendants. This is inconsistent with the plea in pars 16C and 16D in which it is alleged that the fourth to seventh defendants agreed to provide the Recording to the third defendant.
(b)There is a degree of ambiguity as to whether the agreement alleged is between the fourth to seventh defendants or whether the first to third defendants were parties to this agreement. I think that it is tolerably clear that what is alleged is an agreement between the fourth to seventh defendants but, as with pars 16C and 16D, a small amendment would put this beyond doubt.
(c)The matters in (a) and (b) do not warrant striking out par 18A.
(d)In my view the words 'which resulted in the publication of the First and Second Articles' in par 18A give rise to a false issue. As noted earlier an agreement that results in a harm to a plaintiff is not actionable. It is the doing of the unlawful act with the intention of harming the plaintiff that must be established and, again as noted earlier, it is the unlawful means, in this case the provision of the Recording by one or more of the fourth to seventh defendants to the first to third defendants that must cause the harm. I would strike out the words 'which resulted in the publication of the First and Second Articles' on the grounds that they are embarrassing because they give rise to a false issue.
(e)In pleading as particulars to par 18A all paragraphs between pars 2 to 4BZ, 10A to 10D and 16A to 16BG in support of the alleged agreement the plaintiff has failed to approach the task of pleading with precision and clarity. The reliance on the wide range of matters known by the plaintiff about the defendants coupled with reliance on the 'Relevant political background to the Articles' is entirely indiscriminate. It is not possible for the defendants to know how the plaintiff's case is to be advanced by reference to the matters pleaded. The plaintiff is required to identify with specificity the matters he relies on. Only when that has been done can consideration be given to whether those matters disclose a reasonable cause of action. In its present form par 18A and its particulars are embarrassing and should be struck out. The scope for them to prejudice and delay the fair trial of the action is manifest.
(f)When considering par 19 it is important to bear in mind that the plaintiff alleges that all the defendants were a party to one conspiracy. This requires a focus on the facts pleaded to establish the agreement or understanding that forms the basis of the conspiracy. As was said in Chong v CC Containers Pty Ltd a plaintiff may rely on separate acts of co-conspirators which have such a concurrence of time, character, direction and result as would naturally lead to the inference that these separate acts were the outcome of pre-concert or some mutual contemporaneous engagement evidencing the common object of the combination. The separate acts having that concurrent nature must be pleaded. The difficulty with par 19 is that some of the acts relied on by the plaintiff to make good the plea that the first to third defendants 'joined the conspiracy' occurred before the date of the earliest date on which the conspiracy between the fourth to seventh defendants could have been formed. This undermines the allegation that the first to third defendants 'joined in the conspiracy'.
(g)Further, par 19 does not rely on the receipt of the Recording by the first to third defendants but on the receipt of material 'forming the substance of the First Article and the Second Article' by the third defendant on or shortly after 25 January 2019, see particular (i). It is 'that material' that was subsequently published in the First Article and the Second Article rather than any material derived by the first to third defendants from the Recording. I consider that in its present form par 19 fails to disclose a reasonable cause of action against the first to third defendants as participants in a conspiracy with the fourth to seventh defendants. Additionally, I consider that it is embarrassing because of the uncertainty it introduces as to the precise basis upon which the plaintiff's claim is advanced.
Paragraph 20
Paragraph 20 of the statement of claim is as follows:
20 The predominant purpose of the conspiracy on the part of each of the defendants was to cause harm to the plaintiff.
Particulars of intention
The defendants' purpose may be inferred from:
(i) The publication by the defendants of the First Article which, in its natural and ordinary meaning, gives rise to the defamatory imputations set out at paragraph 9 above.
(ii) The publication by the defendants of the Second Article which, in its natural and ordinary meaning, gives rise to the defamatory imputations set out at paragraph 15 above.
(iii) The manner in which the First Article and Second Article were written in that they:
(a) were sensational in their terms;
(b) were critical of the plaintiff;
(c) were structured to prominently disclose the allegations against the plaintiff in the headline and opening paragraphs of the First Article and the Second Article with the plaintiff's response given less prominence;
(d) were factually incorrect and misleading in particular in that the headline and first paragraph of the First Article suggested the plaintiff was seeking to dump toxic soil;
(e) failed to adequately disclose the plaintiff's response.
(iv) The accusatorial tone of Ms Hedley's emails to Ms Kelly and to Ms Wilson each dated 27 February 2019 in respect of the plaintiff and matters the subject of the First Article.
(v) The first to third defendants' publication of the First Article despite being on notice by the First Letter that publication of the First Article would breach the SD Act.
(vi) The first to third defendants' publication of the Second Article despite being on notice by the First Letter and the Second Letter that publication of the Second Article would breach the SD Act.
(vii) The first to third defendants' publication of the Third Article despite being on notice by the First Letter, the Second Letter and the Third Letter that publication of the Third Article would breach the SD Act.
(viii) The first to third defendants continuing to make available for download the Articles despite being on notice that publication of them breached and continues to breach the SD Act.
(ix) The defendants' aggravating conduct set out in paragraph 17 above.
(x) The admissions at paragraph 17 of the Amended Defence filed 1 August 2019.
(xi) The matters pleaded in paragraphs 2 to 4BZ, 10A to 10D and 16A to 16B above.
Further particulars may be provided following discovery and inspection, the administering of interrogatories, the issue of subpoenas and in any event prior to trial.
Paragraph 20 - an outline of the parties' contentions
The defendants contend that par 20 lacks any plea the defendants knew of each other's purpose and the plaintiff does not allege a combination between all the defendants with a common intention or design to cause harm to, or injure, the plaintiff. The defendants reinforce this contention by arguing that the particulars do not support the allegations made.
The plaintiff's response to the defendants' criticisms of par 20 is the same as his response to the criticism of par 19 set out above.
Paragraph 20 - disposition
I will strike out par 20 for reasons that flow from earlier observations. In the light of the conclusion expressed earlier that pars 16C, 16D and 16E disclose no reasonable cause of action against the fourth to seventh defendants as publishers of the Articles, particulars (i) to (x) do not identify any conduct on the part of the fourth to seventh defendants from which an inference as to their intention may be inferred. As to particular (xi) and the reliance on pars 2 to 4BZ, 10A to 10D and 16A to 16BG, I repeat what I have said earlier at [85(e)]. I consider that the pleading is embarrassing and separately does not disclose a reasonable cause of action because nothing is pleaded in support of the allegation that the 'predominant purpose of the [fourth to seventh defendants] was to cause harm to the plaintiff'.
Paragraph 21
Paragraph 21 of the amended statement of claim is as follows:
21By the fourth to seventh defendants agreeing to provide and providing a copy of the Recording to Mr Hondros (as pleaded in paragraph 16C above), and the defendants' publication of the First Article and the Second Article, the defendants implemented the conspiracy to cause harm to the plaintiff.
Paragraph 21 - an outline of the parties' contentions
The defendants contend that par 21 does not state the plaintiff's case sufficiently to allow them a fair opportunity to meet it as it is unclear whether the plaintiff is alleging an agreement between only the fourth to seventh defendants or whether the third defendant was also a party to the agreement. When read with pars 16C, 18A and 19, it remains unclear as to whether the Recording or other materials was provided pursuant to an agreement, who provided it and who formed part of the agreement.
The plaintiff contends, in effect, that the defendants have misunderstood the purpose of par 21. He says par 21 is directed to two separate acts carried out in furtherance of the conspiracy rather than pleading the agreement on which the conspiracy is founded. In its submissions dealing with par 21 the plaintiff also responds to the defendants' suggestion that the plea in particular (i) of par 19 that the third defendant received material forming the substance of the First Article and the Second Article from an unknown source in January 2019 is confusing because of the plaintiff's reliance on the provision of the Recording to the third defendant on 25 or 26 February 2019. In his written submissions the plaintiff says:[48]
Particular (i) alleges [the third defendant] was provided with information that formed the First Article and the Second Article on 25 January 2019. This is consistent with Mr Hondros not being provided with the recording until a month later, as pleaded in ASSOC[4WA] and [4BD]-[4BF]. (emphasis added)
Paragraph 21 - disposition
[48] Plaintiff's submissions filed 23 March 2023 [84].
I repeat my earlier observation to the effect that an amendment is required to make it clear whether it is alleged that the third defendant was a party to the agreement alleged and whether the plaintiff's case is that the agreement was to provide the Recording to the third defendant or the first to third defendants but I would not however strike out the paragraph on that basis. The paragraph will, however, be struck out as a consequence of other paragraphs of the conspiracy plea being struck out.
Paragraph 22
Paragraph 22 of the statement of claim is as follows:
22 The means by which the defendants carried out the conspiracy to cause harm to the plaintiff, namely publication of the First Article and the Second Article, was unlawful.
Particulars of unlawfulness
The plaintiff repeats paragraph 17.11 above and the particulars thereto.
Paragraph 17.11 of the statement of claim is as follows:
17.11[T]he defendants published the First Article, the Second Article and the Third Article in breach of section 9(1) of the SD Act.
Particulars
(i)The conversation at the meeting referred to in each of the articles was a 'private conversation' (within the definition of that term in section 3 of the SD Act) to which the plaintiff was a party.
(ii)The conversation was recorded by some 'listening device' (within the definition of that term in section 3 of the SD Act) without the plaintiff's knowledge or consent.
(iii)Subsequent to the conversation, a copy of the Recording was provided to Mr Hondros and/or Ms Hedley and therefore also to Fairfax Digital by which Mr Hondros, Ms Hedley and Fairfax Digital became aware of the private conversation.
(iv)Ms Hedley by her email to staff of the PDC (referred to in paragraph 17.6 hereof) expressly referred to and quoted from the recording.
(v)The First Letter and the Second Letter to the first to third defendants put the first to third defendants on notice that the recording was obtained in circumstances that breach the SD Act.
(vi)On 1 March 2019, the plaintiff's solicitors sent a letter to the first to third defendants (Third Letter) which inter alia identified that each version of the Second Article purported to publish parts of a private conversation that came to Ms Hedley's attention as a result of the use of a listening device.
(vii)The first to third defendants read the First Letter as is evidenced by parts of the letter being quoted in each of the First Article, the Second Article and the Third Article.
(viA)The Second Letter and the Third Letter were sent to the same email addresses as the First Letter and if not admitted it may be inferred that the first to third defendants read them.
(viii)By publishing and maintaining publication of the First Article, the Second Article and the Third Article, the first to third defendants published and maintained the publication of, alternatively published and maintained the publication of a report of, the private conversation in that:
(a)in each of the First Article and the Second Article, the first to third defendants purported to paraphrase and summarise parts of the private conversation; and
(b)in the Third Article, Fairfax Digital purported to paraphrase and summarise parts of the private conversation.
(ix)The first to third defendants thereby knowingly published, alternatively published a report of, a private conversation by publishing each of the First Article, the Second Article and the Third Article.
Further particulars may be provided following discovery and inspection, the administering of interrogatories, the issue of subpoenas and in any event prior to trial.
Paragraph 22 - an outline of the parties' contentions
The defendants contend that the plaintiff has not alleged that an agreement or inferred that an agreement has occurred, to do an unlawful act with the intention to injure the plaintiff. The defendants contend that the particulars of unlawfulness do not assist the plaintiff because the particulars of par 17.11 only refer to the conduct of the first to third defendants and contain no allegations of unlawful conduct against the fourth to seventh defendants. Paragraph 17.11 alleges that the defendants published the Articles in breach of s 9(1) of the Surveillance Devices Act in support of a claim for aggravated damages. The defendants contend that to use par 17.11 to support par 22 is a 'quantum leap' from allegations of publication by the first to third defendants and allegations of a conspiracy between the fourth to seventh defendants to allegations of a grand conspiracy between all seven defendants.[49]
[49] Defendants' outline of submissions filed 3 March 2023 [54].
The plaintiff contends that par 22 alleges that the defendants carried out their conspiracy unlawfully, that is by the publication of the content of an illegal recording in contravention of s 9(1) of the Surveillance Devices Act. The plaintiff says, in effect, that the relevance of par 17.11 and the particulars to that paragraph is that they make good the case that in publishing the Articles the first to third defendants engaged in unlawful conduct because they published the content of an illegal recording.
Paragraph 22 - disposition
Although it could have been expressed more clearly the purpose of par 22 is to plead that the unlawful act of publishing the Articles containing material obtained from the Recording was the means by which harm was inflicted on the plaintiff. Although par 22 will be struck out as a consequence of striking out earlier paragraphs of the conspiracy plea, I do not think that par 22 is itself deficient.
Paragraph 23 - particulars (ii) and (iii)
Paragraph 23 of the statement of claim is as follows:
23 By reason of the defendants' conduct as pleaded herein, including the publication of the First Article and the Second Article, the plaintiff has suffered loss and damage.
Particulars of loss and damage
(i) The Plaintiff incurred the costs and fees of lodging the Writ of Summons in the within matter which Writ was thereafter accepted by this Honourable Court and duly issued.
(ii) Since publication of the Articles, the plaintiff has been required to respond to freedom of information requests made to the Peel Development Commission by an undisclosed person and to the Office of the Honourable Stephen Dawson MLC by Mr Aaron Grainger.
(iii) The plaintiff has incurred legal expenses incurred in considering and responding to the freedom of information requests.
Further particulars may be provided after discovery and inspection, the provision of expert evidence and in any event prior to trial.
Paragraph 23 - an outline of the parties' contentions
The defendants contend that there is no causal connection between the alleged conspiracy and the loss and damage at particulars (ii) and (iii) of par 23. The only link alleged by the plaintiff between the relevant articles and the alleged FOI requests is a temporal one, that is, that the publication of the relevant articles preceded in time the making of the FOI Requests.
The defendants contend that there are no allegations that the Articles provoked or triggered the FOI requests and that the facts which form the basis of the Articles could have already been known by the parties who submitted the FOI requests. In any event, the defendants contend there is no allegation that the damage was foreseen by the alleged conspirators or that the damage was a foreseeable result of engaging in the conspiracy. Further, in circumstances where the identity of one of the persons who made the FOI request is unknown, there is no reasonable factual basis for making allegations connecting the alleged conspiracy to the actions of the undisclosed person.
The plaintiff argues that par 23 adopts the expression traditionally used to plead causation 'by reason of' and that the heads of damage in (ii) and (iii) were present in the plea when Poland v Hedley (No 2) was decided and were not struck out on that occasion and thus should be allowed to stand. The plaintiff also contends that issues of causation and foreseeability are best determined at trial but that in any event it was readily foreseeable that the publication of articles alleging 'political and governmental corruption' would generate FOI requests and that it is foreseeable that a person having an opportunity to respond to such a request might seek legal advice.
Paragraph 23 - disposition
It is correct that particulars (ii) and (iii) were present in the proposed statement of claim when Le Miere J granted leave to the plaintiff to amend the statement of claim to include the conspiracy plea but it is not correct to suggest that his Honour's decision should be taken as implied approval of the claims advanced in these particulars. This is because in the course of the oral argument on the application for leave to amend counsel for the plaintiff expressly limited its case on the amendment application to loss in the form of the costs and fees associated with the filing of the writ of summons.[50]
[50] ts 137 and 144.
The plaintiff's reliance on a 'traditional formulation of causation' constituted by the expression 'by reason of' does not assist in identifying the material facts for particulars (ii) and (iii). In Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd,[51] in relation to a plea of causation in a misleading or deceptive conduct case, French J (as his Honour then was) said:[52]
The material facts establishing the necessary causal link should be pleaded. In cases of contravention of s 52 said to be constituted by misrepresentation this will generally require more than appears in the opening words of para 50, "by reason of such conduct …"
[51] Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (1987) 14 FCR 215.
[52] Bond Corporation Pty Ltd v Thiess Contractors Pty Ltd (222) (French J).
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.
Leave to replead
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.
Conclusion
Paragraphs 4F to 4M, 4O to 4P, 4R to 4BC, 4BG to 4BZ, 10A to 10C, 16A to 16E and 18A to 23 of the statement of claim will be struck out. Any application by the plaintiff for leave to replead must be supported by a minute of proposed re-amended statement of claim.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
8 AUGUST 2023
- AGLC
- Poland v Hedley [No 5] [2023] WASC 294
- Case
- [2023] WASC 294
- Decision Date
CaseChat Overview and Summary
Orders
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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.