Poland v Hedley [No 7] - [2025] WASC 309

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   POLAND -v- HEDLEY [No 7] [2025] WASC 309
CORAM:   HOWARD J
HEARD:   26 NOVEMBER 2024
DELIVERED          :   6 AUGUST 2025
FILE NO/S:   CIV 1370 of 2019
BETWEEN:   GREGORY DAVID POLAND
Plaintiff
AND
KATE HEDLEY
First Defendant
AND
FAIRFAX DIGITAL AUSTRALIA AND NEW ZEALAND PTY LTD (ACN 087 887 456)
Second defendant
AND
NATHAN JOHN HONDROS
Third defendant
AND
CLAIRE BRADLEY
Fourth defendant
AND
DAVID BIRCH
Fifth defendant
AND
ANDREW WILLIAM HASTIE
Sixth defendant
AND
ZAK RICHARD FRANCIS KIRKUP
Seventh defendant

Catchwords:

Practice and Procedure - Application for leave to amend statement of claim - Application for leave to join additional plaintiffs - Where proposed statement of claim pleads an action by a single plaintiff in defamation and by four proposed plaintiffs in tortious conspiracy - Leave granted to plead proposed statement of claim with regard to defamation claims - Leave not granted with regard to tortious conspiracy claim as not maintainable - Leave not granted to join additional plaintiffs

Legislation:

Rules of the Supreme Court 1972 (WA)

Category: B

Representation:

Counsel:

Plaintiff	:	Mr A Tharby
First Defendant	:	Mr M C Goldblatt
Second defendant	:	Mr M C Goldblatt
Third defendant	:	Mr M C Goldblatt
Fourth defendant	:	Mr M C Goldblatt
Fifth defendant	:	Mr M C Goldblatt
Sixth defendant	:	Mr M C Goldblatt
Seventh defendant	:	Mr M C Goldblatt

Solicitors:

Plaintiff	:	Bennett
First Defendant	:	Carmel Galati
Second defendant	:	Carmel Galati
Third defendant	:	Carmel Galati
Fourth defendant	:	Carmel Galati
Fifth defendant	:	Carmel Galati
Sixth defendant	:	Carmel Galati
Seventh defendant	:	Carmel Galati

Cases referred to in decision(s):

Dank v Whittaker [No 1] [2013] NSWSC 1062
Defteros v Google LLC [2017] VSC 158; (2017) 54 VR 592
Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169
English v Vantage Holdings Pty Ltd [2021] WASCA 47
Fairfax Media Publications v Voller [2021] HCA 27; (2021) 273 CLR 346
Garner v Central Innovation Pty Ltd [2022] FCA 64
Google LLC v Defteros [2022] HCA 27; (2022) 277 CLR 358
Griffith v The Australian Broadcasting Corporation [2004] NSWSC 582
Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105; (2021) 57 WAR 468
Poland v Hedley [2023] WASCA 69
Poland v Hedley [2024] WASCA 74
Poland v Hedley [No 2] [2020] WASC 203
Poland v Hedley [No 3] [2021] WASC 284
Poland v Hedley [No 5] [2023] WASC 294
Poland v Hedley [No 6] [2024] WASC 168
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
Thiess v TCN Channel Nine Pty Ltd [No 5] [1994] 1 Qd R 156
Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149
Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580
Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331
Wright v De Kauwe [No 2] [2024] WASCA 51

TABLE OF CONTENTS

1. Introduction

2. The present applications

3. The pleading history

4. The Proposed SOC

5. Applicable principles

6. Defamation claims against the political defendants

6.1 Defamation pleas against the political defendants: September 2022 SOC:

6.2 Defamation pleas against the political defendants: the Proposed December 2023 SOC

6.2.1 Defamation pleas against the political defendants: the Proposed December 2023 SOC: reasons of the Court of Appeal in [2024] WASCA 74

6.3 Defamation pleas against the political defendants: the Proposed SOC

6.4 Disposition of the Proposed SOC defamation pleas against the political defendants

7. Tortious conspiracy

7.1 Tortious conspiracy: September 2022 SOC

7.2 Tortious conspiracy: Proposed December 2023 SOC

7.2.1 The cause of action pleaded by the proposed corporate plaintiffs

7.2.2 Mr Poland's damages from the Conspiracy

7.2.3 The proposed corporate plaintiffs' claimed losses

7.3 Tortious conspiracy in the Proposed SOC

7.3.1 The proposed corporate plaintiffs

The Strzelecki Group

Strzelecki Holdings Pty Ltd

The Village Scarborough Beach Pty Ltd

Coventry Village Pty Ltd

7.3.2 Intention to harm

7.3.3 Losses from the tortious conspiracy

7.3.4 Loss of the Scarborough Project

7.3.5 Coventry Village Pty Ltd pays 'interest'

7.3.6 Other losses

7.3.7 The telephone conversations

8. The proposed corporate plaintiffs' 'direct' losses by damage to their reputations

9. The 'indirect' losses claimed and the reflective loss principle

10. The Recording and transcript

11. Disposition

ANNEXURE 'A'

ANNEXURE 'B'

HOWARD J:

Introduction

The facts underlying the applications with which these reasons are concerned have been covered in numerous previous decisions of this Court and the Court of Appeal. Consequently, I have set them out below in short form only.
The first plaintiff, Mr Poland, describes himself as a prominent Western Australian businessman who had status, wealth and political influence. For present purposes, that may be assumed to be so.
On 15 January 2019, Mr Poland attended a meeting at the Subiaco Hotel arranged through the Peel Development Commission, of which he was then the Deputy Chair. There were three other people at that meeting; namely the spouses, Aaron and Melissa Grainger, and Lisa Taylor who was an officer of the Peel Development Commission. Mr Grainger was a businessman with business interests in the Peel region.
Mr Grainger made a recording of the meeting (Recording).
A copy of the Recording and a transcript of it were put before the Court by the defendants over the objection of the proposed plaintiffs: they primarily contend that they are irrelevant to the applications before the Court.
A curiosity of this matter is that Mr Poland was the principal or dominant actor at the meeting. It is common ground that none of the other participants said anything which was defamatory of Mr Poland.
Indeed, it was common ground between the parties that nothing in the Recording was defamatory of Mr Poland.
The Recording made its way to the first defendant, Ms Hedley, and the third defendant, Mr Hondros, who were journalists employed by the second defendant, Fairfax Digital. Fairfax Digital had a website under the masthead of 'WAtoday'. I will return to the pathway by which the Recording came to Ms Hedley and Mr Hondros.
It is uncontroversial that Ms Hedley and Mr Hondros wrote two articles based on the Recording on the digital platform of WAtoday, namely:
1.on 27 February 2019 (First Article);[1] and
2.on 28 February 2019 (Second Article);[2]
together the Articles.
[1] I have attached a quotation from the Proposed SOC of the particulars of the First Article as Annexure 'A' to these reasons.
[2] I have attached a quotation from the Proposed SOC of the particulars of the First Article as Annexure 'B' to these reasons.
Mr Poland says[3] that the natural and ordinary meaning of the First Article was that he:
1.is corrupt in that he arranges secret deals between the State government and private businesspeople without due process;
2.exerts improper political influence over members of the State government; and
3.as Deputy Chair of the PDC, failed to act in the interests of the Peel region by promoting the dumping of toxic soil within the region.
[3] This plea has remained unchanged from the first statement of claim filed 28 May 2019 through all of the filed and proposed iterations of Mr Poland's statements of claim, including the present Proposed SOC as defined below.
Mr Poland says[4] that the natural and ordinary meaning of the Second Article was that he:
1.falsely exaggerates boasting about his political influence; and
2.exerts improper political influence over members of the State government.
[4] This plea has remained unchanged from the first statement of claim filed 28 May 2019 through all of the filed and proposed iterations of Mr Poland's statements of claim, including the present Proposed SOC as defined below.
The history of Mr Poland's pleadings in this matter will be returned to below. However, Mr Poland commenced proceedings against Ms Hedley and Fairfax Digital by an indorsed writ on 28 February 2019 and then a statement of claim was filed on 28 May 2019 (defined below as the May 2019 SOC).

The present applications

By a minute of proposed orders filed 1 October 2024, Mr Poland seeks, relevantly to these reasons, the following orders:
1.Strzelecki Holdings Pty Ltd, The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd be added as plaintiffs to the proceedings.
2.Gregory David Poland henceforth be referred to as the First Plaintiff, Strzelecki Holdings Pty Ltd henceforth be referred to as the Second Plaintiff, The Village Scarborough Beach Pty Ltd henceforth be referred to as the Third Plaintiff and Coventry Village Pty Ltd henceforth be referred to as the Fourth Plaintiff.
3.The plaintiffs have leave to amend their writ of summons in terms of the Minute of Proposed Fourth Re-Amended Writ of Summons filed 1 October 2024.
4.The plaintiffs have leave to re-plead their statement of claim in terms of or substantially similar to the Minute of Proposed Further Substituted Statement of Claim filed 1 October 2024 [Proposed SOC].
The defendants oppose the making of those Orders.[5]
[5] Defendant's minute of proposed orders filed 22 November 2024.
There is a second application, made on 14 November 2024, which seeks that certain parts of the evidence led by the defendants in the above application be restricted. I will return to this second application but note that at the hearing of the (primary) application I intended to make interim suppression orders under O 67B of the Rules of the Supreme Court 1971 (WA) (RSC). Unless otherwise indicated, I refer to the application made by Mr Poland on 1 October 2024 as the application from here.

The pleading history

The following have relevantly led to the present application and the Proposed SOC:
1.the original statement of claim was filed on 28 May 2019 (May 2019 SOC): Ms Hedley and Fairfax Digital were the first and second defendants respectively, and Mr Poland was the sole plaintiff;
2.on 12 December 2019, Le Miere J gave leave for Mr Poland to join Mr Hondros as the third defendant;
3.the amended statement of claim was filed on 20 December 2019 (December 2019 SOC);
4.by an application in the form of a minute of proposed orders filed on 15 January 2020, Mr Poland sought leave to amend:
(a)his writ in terms of a minute of proposed re‑amended writ; and
(b)his December 2019 SOC by a minute of proposed re‑amended statement of claim (January 2020 SOC);
5.on 11 June 2020, Le Miere J gave Mr Poland leave to file and serve the January 2020 SOC. That leave was given following reasons given by his Honour in Poland v Hedley [No 2] [2020] WASC 203;
6.the re-amended statement of claim was then filed on 11 June 2020 (June 2020 SOC);
7.the June 2020 SOC introduced, against the first to third defendants (who remained the only defendants at that stage), a claim of a tortious conspiracy to injure Mr Poland by unlawful means;
8.on 27 May 2021, Mr Poland made an application to join:
(a)Ms Bradley as the fourth defendant;
(b)Mr Birch as the fifth defendant; and
(c)Mr Hastie as the sixth defendant.
9.pursuant to Orders made by Le Miere J on 19 August 2021, Ms Bradley and Messrs Birch and Hastie were joined as the fourth to sixth defendants respectively, and Mr Poland was given leave to file a second re-amended writ and statement of claim (which he did on 12 October 2021). Those Orders were made following his Honour delivering reasons in Poland v Hedley [No 3] [2021] WASC 284;
10.the substituted statement of claim was filed on 12 October 2021 (October 2021 SOC);
11.by Orders made by Tottle J on 28 January 2022, Mr Poland was given leave to join Mr Kirkup as the seventh defendant;
12.the amended substituted statement of claim was filed on 30 September 2022 (September 2022 SOC);
13.by an application filed 3 February 2023, the defendants applied to strike out certain paragraphs of the September 2022 SOC;
14.by Orders made on 8 August 2023, Tottle J struck out paragraphs from the September 2022 SOC and made orders allowing Mr Poland to make application for leave to re-plead.[6] His Honour made those Orders following publication of reasons in Poland v Hedley [No 5] [2023] WASC 294;
[6] Order 4(a) of the Orders made on 8 August 2023.
15.the minute of proposed re-amended substituted statement of claim was filed 19 September 2023 (Proposed September 2023 SOC);
16.by Orders made on 1 November 2023, Tottle J effectively allowed Mr Poland to abandon the Proposed September 2023 SOC;
17.pursuant to the Orders made 1 November 2023, Mr Poland filed an amended minute of proposed re-amended substituted statement of claim on 16 November 2023 (Proposed November 2023 SOC) which included (for the first time):
(a)The Village Scarborough Beach Pty Ltd as the proposed second plaintiff; and
(b)Coventry Village Pty Ltd as the proposed third plaintiff,
18.soon after, Mr Poland (and the proposed second and third plaintiffs) filed a re‑amended minute of proposed re‑amended substituted statement of claim on 5 December 2023 (Proposed December 2023 SOC);
19.on 7 May 2024, Tottle J, relevantly, made the following Order:
The plaintiff's application for leave to re-plead, filed 19 September 2023, and the plaintiff's application for leave to amend and re‑plead filed 16 November 2023, as amended on 5 December 2023, (Leave Applications) be dismissed.
20.the 7 May 2024 Order was made following the publication of reasons by his Honour in Poland v Hedley [No 6] [2024] WASC 168.
In addition to the above, the matter is also the subject of two Court of Appeal decisions in Poland v Hedley [2023] WASCA 69 (first Court of Appeal decision) and Poland v Hedley [2024] WASCA 74 (second Court of Appeal decision). The latter of those two was the Court of Appeal refusing leave to appeal and dismissing the appeal from Poland v Hedley [No 6].
In all of those circumstances, this application may well have prompted Yogi Berra to remark that it is 'déjà vu all over again'.

The Proposed SOC

In the Proposed SOC, Mr Poland is the first plaintiff. The proposed additional plaintiffs are:
1.Strzelecki Holdings Pty Ltd as the proposed second plaintiff (noting that it had not appeared in the proposed November 2023 SOC);
2.The Village Scarborough Beach Pty Ltd as the proposed third plaintiff; and
3.Coventry Village Pty Ltd as the proposed fourth plaintiff.
Each of those proposed plaintiffs is said to have some relationship with Mr Poland and I will refer to them from here together as the proposed corporate plaintiffs.
Also, from here, I will refer to the first to third defendants in the Proposed SOC as the media defendants, and the fourth to seventh defendants as the political defendants. As I understand it, it is not proposed to continue the proposed defamation claim against Ms Bradley.
In the broad, the Proposed SOC pleads three claims:
1.in defamation against the media defendants arising from the publication of the Articles;
2.in defamation against the political defendants (except the fourth defendant, Ms Bradley) based on each of them being a publisher of the Articles by their provision of the Recording and their participation in related telephone calls; and
3.a tortious conspiracy with the intention to injure Mr Poland and the proposed corporate plaintiffs brought against both the media and political defendants.
The media defendants do not oppose Mr Poland effectively continuing his defamation claims against them. Indeed, the media defendants embrace the observations made by Tottle J in Poland v Hedley [No 6]:
… the focus must shift from the interlocutory disputes that characterised the progress of this action to date, to proceeding to trial. [Mr Poland's] relatively straightforward claim for damages for defamation against the first, second and third defendants was commenced on 28 February 2019. The defamation claim should proceed to trial without further delay.[7]
[7] Poland v Hedley [No 6] [2024] WASC 168 [54].
Rather, the contest in this application is whether by the Proposed SOC:
1.Mr Poland ought to be given leave to plead his defamation claims against the political defendants; and
2.Mr Poland and the proposed corporate plaintiffs ought to be given leave to plead their claims in conspiracy against the media and political defendants.

Applicable principles

In Poland v Hedley [No 6], Tottle J proceeded on the basis that the principles which govern strike out applications were relevantly summarised in English v Vantage Holdings Pty Ltd[8] and that those principles applied with equal force to an application for leave to amend.[9]
[8] English v Vantage Holdings Pty Ltd [2021] WASCA 47 [55] - [56].
[9] Poland v Hedley [No 6] [3]; see also Poland v Hedley [2024] WASCA 74 [30] (Mitchell and Vaughan JJA).
His Honour had also, previously, in Poland v Hedley [No 5], noted the caution with which the power to strike out a pleading is to be exercised.[10]
[10] Poland v Hedley [No 5] [16].
The parties did not suggest I should apply any different principles to this application. I have applied those principles here.

Defamation claims against the political defendants

As noted, it does not appear that Mr Poland intends to seek to maintain a claim against Ms Bradley as she is not pleaded in the proposed SOC as being a publisher of the Articles.[11]

6.1 Defamation pleas against the political defendants: September 2022 SOC:

[11] ts 422.

The September 2022 SOC pleaded the (then) political defendants'[12] liability for publication of the Articles at [16C] - [16E].
[12] Ms Bradley was included in that plea.
The basis of the liability was pleaded to be that the political defendants had agreed to provide a copy of the recording to Mr Hondros. At [16D] it was then pleaded relevantly:
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. (emphasis omitted)
Paragraphs [9] and [15] in the September 2022 SOC pleaded the natural and ordinary meaning of the Articles respectively in the same terms as I have recited in [10] and [11] above.
So, by [16D] of the September 2022 SOC, it was pleaded that the intention of the political defendants in supplying the Recording was that an article would be published conveying the imputations, including that Mr Poland was corrupt.
Tottle J addressed the political defendants' pleaded liability as publishers in the September 2022 SOC in Poland v Hedley [No 5] commencing at [52].
His Honour concluded after reviewing the authorities:[13]
[57]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).
[58]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.
[59]… In the absence of any pleading that the [political 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. (emphasis in the original)
[13] I note that decision was delivered on 8 August 2023.

His Honour then struck out the relevant pleas on the basis that they disclosed no reasonable cause of action against the political defendants as publishers: the provision by them of the Recording to Mr Hondros (the third defendant) was not sufficient to establish liability on their part for the publication of the Articles.[14]
[14] Poland v Hedley [No 5] [60].
In later referring back to these pleas in Poland v Hedley [No 6], Tottle J said that he had 'placed particular reliance' on the 'exposition' of the legal principles undertaken by McCallum J (as she then was) in Dank v Whittaker [No 1].[15] His Honour said:
[45]In [Poland v Hedley [No 5]] I set out the legal principles governing who may be liable as an original publisher of defamatory statements. In my analysis I placed particular reliance on the exposition of the applicable legal principles undertaken by McCallum J in Dank v Whittaker (No 1). In that case her Honour concluded that the authorities establish that where a person merely contributes material to an article but has no control over the publishing process that person will not ordinarily be liable unless he or she has assented to the final form of the article.[16] (citations omitted)

6.2 Defamation pleas against the political defendants: the Proposed December 2023 SOC

[15] Poland v Hedley [No 6] [45].

[16] Poland v Hedley [No 6] [45].

The Proposed December 2023 SOC [16A] pleaded that the political defendants participated in, and were therefore liable as publishers of, the Articles by reason of the matters pleaded in [23] ‑ [31] of that SOC. It pleaded:
By reason of the matters pleaded in paragraphs 4BD to 4BF, 23 to 31 and the matters identified in particulars (i)(b), (i)(c), (iii) and (iv) herein, the fourth to seventh defendants participated in, and are therefore also liable as publishers of, the First Article and the Second Article.[17]
[17] As may be seen, aside from the references to [23] - [31] in the Proposed December 2023 SOC, [16A] also referred to [4BD] ‑ [4BF] and particulars said to be provided to [16A]. Those references appear to be hang overs from the Proposed September 2023 SOC and were not amended out of [16A] when they had been deleted from the Proposed December 2023 SOC: see also Poland v Hedley [2024] WASCA 74 [50].
In Poland v Hedley [No 6] at [48] and following, his Honour dealt with the pleading in the Proposed December 2023 SOC against Ms Bradley. In the Court of Appeal there was no challenge to these findings made by Tottle J.[18] I do not need to consider his Honour's reasons further in this respect. From here, in discussing the defamation cause of action, political defendants refers only to the fifth to seventh defendants (and not to Ms Bradley).
[18] Second Court of Appeal decision [40].
The liability of the political defendants as publishers pleaded in the Proposed December 2023 SOC at [16A] is analogously pleaded in the Proposed SOC at [45] for Mr Birch, [46] for Mr Hastie and [47] for Mr Kirkup (the fifth to seventh defendants respectively).
As to the plea in the Proposed December 2023 SOC, Tottle J in Poland v Hedley [No 6] said:
In the [Proposed December 2023 SOC] [Mr Poland] has attempted to support the publication plea by drawing on the substance of the telephone calls pleaded in the [Proposed December 2023 SOC] in support of the conspiracy plea.[19]
[19] Poland v Hedley [No 6] [46].
Tottle J then summarised the telephone calls pleaded in the Proposed December 2023 SOC.[20] It may be noted that in doing so, Tottle J also summarised some telephone conversations which were not part of the pleas in the defamation cause of action.[21]
[20] Poland v Hedley [No 6] [47].
[21] Poland v Hedley [No 6] [47(g) - (j)].
By specific reference to Mr Birch, his Honour held that discussions between the political defendants:
… is of no moment for the purposes of the allegation that he was a publisher of the Articles. … General discussions, to which the media defendants were not a party, about the publication of an article to the effect that the plaintiff was corrupt cannot on any basis constitute the exercise of control over the process of publication. And, neither can they amount to an assent to the terms in which the Articles were published.[22]
[22] Poland v Hedley [No 6] [49].
Consequently, Tottle J held that the Proposed December 2023 SOC did not disclose a reasonable cause of action against Mr Birch as a publisher of the Articles.[23]
[23] Poland v Hedley [No 6] [49].
In dealing with the liability as a publisher pleaded against Mr Hastie in the December 2023 SOC, his Honour concluded:
[52]The allegations that Mr Hastie had several telephone conversations with Mr Hondros in which they discussed the Recording and discussed that it showed that the plaintiff and members of the State Government were involved in corruption and that they agreed that Mr Hondros would publish an article 'based on the Recording' are not sufficient to sustain a claim that Mr Hastie was a publisher. The alleged agreement between Mr Hastie and Mr Hondros that an article 'based on the Recording' would be published cannot be equated with Mr Hastie controlling the publication nor is the alleged agreement capable of constituting an assent by Mr Hastie to the final form of the Articles. The proposed statement of claim does not disclose a reasonable cause of action against Mr Hastie as a publisher of the Articles and the proposed pleading of the claim against Mr Hastie as a publisher will not be allowed.
By parity of reasoning, his Honour reached the same conclusion about the pleading against Mr Kirkup.[24]
[24] Poland v Hedley [No 6] [53].
Tottle J held that Mr Poland should not have leave to plead his defamation claims in the Proposed December 2023 SOC against Messrs Birch, Hastie and Kirkup.
By its references to [23] - [31], the Proposed December 2023 SOC [16A] pleaded the pathway by which the recording was supplied to Mr Hondros for the defamation cause of action. That pathway is effectively re‑pleaded in the Proposed SOC. The following table notes those nominated paragraphs of the Proposed December 2023 SOC for the defamation action and the same or materially the same paragraphs in the Proposed SOC:

Proposed December 2023 SOC

Proposed SOC

[23] [19]

[24] [20]

[25] [21]

[26] [22]

[27] [23]

[28] [24]

[29] [25]

[30] [26] - [30]

[31] [31]

6.2.1 Defamation pleas against the political defendants: the Proposed December 2023 SOC: reasons of the Court of Appeal in the second Court of Appeal decision

It may be noted that Poland v Hedley [No 6] was delivered on 3 May 2024, and that the the Court of Appeal's decision in Wright v De Kauwe [No 2][25] was published a few days after, on 17 May 2024.
[25] Wright v De Kauwe [No 2] [2024] WASCA 51.
The refusal of leave to plead that Messrs Birch, Hastie and Kirkup were publishers of the Articles was the subject of proposed appeal ground 10 in Mr Poland's appeal decided by the second Court of Appeal Decision.
The second Court of Appeal decision was decided after Wright v De Kauwe [No 2]. Mitchell JA was part of the coram in both matters.
In the second Court of Appeal decision, Mitchell and Vaughan JJA stated[26] that in Wright v De Kauwe [No 2] it was not necessary for the Court to consider whether and how cases such as Dank v Whittaker [No 1][27] might be reconciled with a trilogy of High Court cases, namely Trkulja v Google LLC,[28] Fairfax Media Publications v Voller[29] and Google LLC v Defteros.[30]
[26] Second Court of Appeal decision [43].
[27] Dank v Whittaker [No 1] [2013] NSWSC 1062 (Dank).
[28] Trkulja v Google LLC [2018] HCA 25; (2018) 263 CLR 149 (Trkulja).
[29] Fairfax Media Publications v Voller [2021] HCA 27; (2021) 273 CLR 346 (Voller).
[30] Google LLC v Defteros [2022] HCA 27; (2022) 277 CLR 358.
I note that each of those three High Court decisions was decided before Poland v Hedley [No 5], and that Tottle J cited the High Court decision in Voller in Poland v Hedley [No 5]. From the submissions made prior to his Honour's decision in Poland v Hedley [No 6], it does not appear that any party suggested his Honour had misunderstood or misapplied the law in Poland v Hedley [No 5].
Plainly enough, Tottle J expressly considered the High Court decisions in Webb v Bloch[31] and Voller in both Poland v Hedley [No 5] and Poland v Hedley [No 6] and concluded that they provided no arguable support for the media defendants being held to be publishers.
[31] Webb v Bloch [1928] HCA 50; (1928) 41 CLR 331.
Significantly, Mitchell and Vaughan JJA stated in the second Court of Appeal decision:
[44]In support of leave to appeal in relation to proposed ground 10 it might have been said that it is reasonably arguable that the law in this area is developing. It might further have been said that the decision in the primary court has the possible effect of stifling that development. It is well established that the court should be careful not to risk stifling the development of the law by summarily rejecting a claim if there is a reasonable possibility that the law is developing. Summary processes must not be used to stultify the development of the law where existing authority may be overruled, qualified or further explained.
[45]In short, there might be an arguable point in terms of the substantive legal question sought to be raised by proposed ground 10 - or, at least, a point which is sufficiently arguable that it is open to debate as to whether it should be resolved at the pleading stage.
[46]Were this the only difficulty with the pleading of the defamation claim against the political respondents it might have been appropriate to grant leave to appeal limited to proposed ground 10. It could not justify leave to appeal generally. We were, however, not satisfied that there should be such a limited grant of leave to appeal in the circumstances of the present case. The pleading was deficient in any event. Moreover, the current state of the [Proposed December 2023] SOC was such that it is not suitable for appellate consideration of the substantive legal question that is sought to be raised by proposed ground 10.[32] (citations omitted) (original emphasis)
[32] Second Court of Appeal decision [44] - [46].
Turning to [16A] of the Proposed December 2023 SOC, Mitchell and Vaughan JJA:
1.noted the first difficulty was that there was no reasonable cause of action against Ms Bradley;[33]
2.stated that the rolled‑up nature of the plea meant that the identified paragraphs within [16A] were relied on against each of the political respondents;[34] and
3.held that rolled‑up plea was embarrassing and each of the political respondents was entitled to know, with specificity, the case advanced against him.[35]
[33] Second Court of Appeal decision [48].
[34] Second Court of Appeal decicion [49].
[35] Second Court of Appeal decision [49].
Mitchell and Vaughan JJA held, then, that the embarrassing nature of [16A] of the Proposed December 2023 SOC meant that Tottle J was correct to refuse leave to amend in terms of that plea.[36]
[36] Second Court of Appeal decision [51].
Their Honours then concluded:
[51]… even if there is substance in the substantive legal question that underpins proposed ground 10, the appeal could not succeed. In any case, given the deficiencies we have referred to, the publication plea was not in a suitable form for appellate consideration of the point that the appellant sought to agitate by proposed ground 10. If, on appeal, this court is to consider the substantive legal question that was sought to be raised by proposed ground 10, it is in the interests of justice that it do so on the basis of a properly formulated pleading in which the material facts applicable to each political respondent are clearly identified.
Finally, Mitchell and Vaughan JJA said:
[54]In the event of a future decision in the primary proceedings refusing the appellant leave to amend nothing in these reasons (or the order of this court made 21 June 2024) is to be taken to preclude the appellant seeking leave to appeal on a ground raising the substantive legal question that is sought to be raised by proposed ground 10 on a properly formulated pleading. Nor should anything in these reasons be thought to be determinative of the substantive legal question that is sought to be raised by proposed ground 10.

6.3 Defamation pleas against the political defendants: the Proposed SOC

The Proposed SOC pleads that Mr Birch was a publisher of the Articles by reason of the matters set out at [45.1] - [45.2] of that SOC. That is, that Mr Birch provided a copy of the Recording to Mr Hondros,[37] and his participation in telephone calls with either Mr Hastie or Mr Kirkup.[38]
[37] Proposed SOC [27].
[38] Proposed SOC [45.2].
The Proposed SOC pleads that Mr Hastie was a publisher of the Articles by reason of the matters set out at [46.1] - [46.4]. That is, that Mr Hastie requested Mr Grainger to provide the Recording to Ms Bradley;[39] his instruction to Ms Bradley to provide the Recording to Mr Birch;[40] the provision by Mr Hastie of the Recording to Mr Hondros or Mr Hastie's direction that the Recording be provided to Mr Hondros;[41] and his participation in telephone calls.[42] As to the telephone calls, with the exception of six calls with Mr Hondros, Mr Hastie spoke with Mr Kirkup or Mr Birch in all of the other telephone calls.
[39] Proposed SOC [18].
[40] Proposed SOC [45.2].
[41] Proposed SOC [46.3].
[42] Proposed SOC [46.4].
The Proposed SOC pleads that Mr Kirkup was a publisher of the Articles by reason of the matters set out at [47]. That is, that Mr Kirkup participated in telephone calls with Mr Hastie or Mr Birch. There are also five telephone calls with Mr Hondros and one with Ms Hedley.
I set out above the similar pleas between the Proposed December 2023 SOC and the Proposed SOC as to the pathway for the Recording to be supplied to Mr Hondros in the table to [47] above.
It may be accepted that a difference between the Proposed December 2023 SOC and the Proposed SOC is that the pleas as to publication are now not as obviously rolled‑up as they were in [16A] of the Proposed December 2023 SOC.
In respect of each of Messrs Birch, Hastie and Kirkup, the Proposed SOC pleads that the relevant defendants in the telephone calls discussed that an article should be published based on the Recording to the effect that Mr Poland and the Strzelecki Group were involved in corruption.
Mr Poland submitted that the purpose or intention which was sought to be pleaded in the Proposed SOC in respect of the political defendants (in [45] ‑ [47] respectively) put Mr Poland's case differently from the 'mere' transmission or communication of non-defamatory material; that submission was put to distinguish the pleas made in the Proposed December 2023 SOC.[43]
[43] 26 November 2024 ts 421 - 422.
I would not accept that submission.
If one compares the paragraphs in the Proposed December 2023 SOC with their analogues in the Proposed SOC,[44] it is plain that both plead (against the political defendants) that the Recording was being supplied for the purpose of the publication of an article to the effect that Mr Poland was corrupt.
[44] See the table at [47] above.
That is, as a matter of substance, pleas to the relevant same effect are and were made in both the Proposed December 2023 SOC and the Proposed SOC.
As noted above, notwithstanding the pleaded content of the telephone conversations, Tottle J in Poland v Hedley [No 6] did not consider that they supported a viable plea that any of the political defendants was relevantly a publisher.
To the contrary of that position, Mr Poland submits:
1.the principles relating to when a person may be held liable as a publisher of defamatory material are well established;[45]
2.any degree of participation in the publication of defamatory material is sufficient to attract liability and includes intentionally lending assistance to the existence of defamatory material for the purpose of publication;[46]
3.the Court of Appeal in Wright v De Kauwe [No 2] confined the decisions in Dank[47] and Thiess v TCN Channel Nine Pty Ltd [No 5][48] to their factual circumstances in observing that the decisions pre‑dated more recent High Court authority;[49]
4.on the application of Webb v Bloch[50] as per Wright v De Kauwe [No 2], it is at least reasonably arguable that a cause of action in defamation is disclosed against the political defendants;[51]
5.Mr Poland accepts that if a person merely contributes material to an article which material is not itself defamatory, they will not be liable for publication of the entire article;[52] and
6.here, Mr Poland alleges that the political defendants suggested 'illegal matter' in the sense described in Webb v Bloch in order that the publication would occur and so the Proposed SOC disclosed an arguable case against the political defendants.[53]
[45] Mr Poland's submissions filed 1 October 2024 [45].
[46] Mr Poland's submissions filed 1 October 2024 [46].
[47] Dank [26].
[48] Thiess v TCN Channel Nine Pty Ltd [No 5] [1994] 1 Qd R 156 (Thiess) [194] - [196].
[49] Mr Poland's submissions filed 1 October 2024 [49].
[50] Webb v Bloch, 363 - 365 (Isaacs J).
[51] Mr Poland's submissions filed 1 October 2024 [51].
[52] Mr Poland's submissions in reply filed 14 November 2024 [25].
[53] Mr Poland's submissions in reply filed 14 November 2024 [26].
From Mr Poland's submissions above, it may be seen that he relies heavily on Wright v De Kauwe [No 2] to suggest that, in effect, the understanding of the law which Tottle J relied on in Poland v Hedley [No 5] and [No 6] was not correct beyond argument (although Mr Poland did not put his submissions in exactly that way).
Turning to Wright v De Kauwe [No 2], the relevant part of the appeal decision concerned whether Mr Wright was a publisher of an ASX announcement. Mitchell JA considered the general principles concerning 'publication' in defamation law commencing at [105]. Mitchell JA noted the cases of Defteros v Google LLC (at first instance),[54] Thiess and Dank pre-dated the decisions of the High Court in Trkulja, Voller and Google LLC v Defteros. Mitchell JA stated that the explanation of the concept of 'publication' in defamation law by Isaacs J in Webb v Bloch had been reaffirmed by the High Court in those three cases.
[54] Defteros v Google LLC [2017] VSC 158; (2017) 54 VR 592.
Mitchell JA cited [21] from the judgment of Kiefel CJ and Gleeson J in Google LLC v Defteros and part of what his Honour quoted was:
Adopting Webb v Bloch, any act of participation in the communication of defamatory matter to a third party is sufficient to make a defendant a publisher, regardless of their knowledge or intent. So understood, a person who has been instrumental in, or contributes to any extent to, the publication of defamatory matter is a publisher.[55]
[55] Wright v De Kauwe [No 2] [105].
There was no suggestion by Mitchell JA that the trilogy of High Court cases to which he refers were not consistent with each other or with Webb v Bloch. As the High Court unanimously said in Trkulja:
In point of principle, the law as to publication is tolerably clear. It is the application of it to the particular facts of the case which tends to be difficult. …[56] (citations omitted)
[56] Trkulja [39] (Kiefel CJ, Bell, Keane, Nettle and Gordon JJ).
Mitchell JA also said:
[110]Neither Trkulja, Voller nor Google v Defteros were cases of the kind discussed at [108] above, in which an act of providing non‑defamatory information to a journalist was said to make the party a publisher of the whole article which contained defamatory statements not based on information provided by that party.
[111]Nor is the present case of that nature. As I will explain, in the present case Mr Wright proposed the material to be included in an early draft of a document that became the Second ASX Announcement. The document suggested by Mr Wright contained in essence all of the defamatory imputations found to exist in the Second ASX Announcement. There is no direct evidence of Mr Wright suggesting modifications to that document after the early stages of its development. However, it may be inferred that Mr Wright participated in the refinement of the document by seeking factual information from eSense officers and liaising with his colleague at NRW, Mr Lace, about its contents. Further, Mr Wright saw the final form of the Second ASX Announcement before it was published and, while he asked a question about legal advice, did not object to its publication on the ASX website. This conduct amounted to publication by Mr Wright even on the approach taken in the cases referred to at [107] ‑ [108] above. On the approach taken in Voller, Mr Wright by a voluntary act participated in the communication of the Second ASX Announcement and the defamatory material contained therein.
[112]In these circumstances, it is unnecessary for this court to consider whether and how the cases referred to at [107] ‑ [108] above might be reconciled with the approach taken in Trkulja, Voller and Google v Defteros. On any of those approaches, Mr Wright is a publisher of the defamatory material contained in the Second ASX Announcement.[57] (citations omitted)
[57] Wright v De Kauwe [No 2] [110] - [112] (Mitchell JA) (citations omitted).

Clearly enough, Mitchell JA took the view that the Court of Appeal, factually, did not have to grapple with the issue that Tottle J did in Poland v Hedley [No 5] and Poland v Hedley [No 6] as I have set out above.[58]
[58] See also the second Court of Appeal decision [43] (Mitchell and Vaughan JJA).
I do not repeat here the passages I quoted in [54], [57] and [58] above from the second Court of Appeal decision.
With respect, the parties' submissions for and against leave being granted to plead the defamation case against the political defendants do not materially engage with what the Court of Appeal said in relation to proposed appeal ground 10 in the second Court of Appeal decision.
Without the considerable benefit of that decision:
1.I would have considered that Tottle J was correct, and I would have adopted his reasoning and reached the same outcome to the effect that it was not arguable that the political defendants were publishers of the Articles; and
2.I would not have considered that the decision in Wright v De Kauwe [No 2] suggested any different application of the principles such that it was arguable that the political defendants were publishers.
However, particularly by reference to the second Court of Appeal decision at [44] ‑ [45] as quoted in [54] above, I am of the view that Mitchell and Vaughan JJA:
1.did not consider it plain that Dank still represented the law in this material respect;
2.were concerned that the law may yet be developing following the three High Court decisions outlined above; and
3.considered that summary determination at a pleading stage of the proceedings was not appropriate.

6.4 Disposition of the Proposed SOC defamation pleas against the political defendants

Without the benefit of the second Court of Appeal decision I would have refused Mr Poland leave to plead the Proposed SOC against the political defendants on the grounds of it not pleading a maintainable cause of action.
However, as set out, it appears to me that the Court of Appeal, at least at this stage, has taken a different view as to the arguability of the correctness of Dank (which was important to Tottle J's reasoning in Poland v Hedley [No 5] and Poland v Hedley [No 6]), such that the correctness or otherwise of his Honour's view should not be determined by me at this point on a leave to plead application.
It may be that I have read too much into the above paragraphs of the second Court of Appeal decision. However, the approach I have taken seems to me to best reflect their Honours' reasoning and statements.
I would grant Mr Poland leave to plead the Proposed SOC in the defamation action against the political defendants: but strictly limited to the relevant paragraphs of the Proposed SOC.

Tortious conspiracy

As noted above, the June 2020 SOC introduced a claim by Mr Poland (as the sole plaintiff) against the three media defendants (the only defendants at that stage) of a tortious conspiracy to injure him by unlawful means.
The conspiracy was then expanded and pleaded against the first three political defendants (being Ms Bradley and Messrs Birch and Hastie[59]) by the October 2021 SOC.
[59] As noted above, these three defendants had been joined pursuant to orders made by Le Miere J on 19 August 2021.
Before turning to the last three iterations of the unlawful means conspiracy, it is useful to set out the elements of the cause of action.
I adopt gratefully the summary made by Tottle J in Poland v Hedley [No 5] which has not been challenged as incorrect or incomplete by any party before me. His Honour stated:
[65]The elements of an unlawful means conspiracy are:
(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.
[66]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.
[67]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.[60] (citations omitted) (emphasis omitted).
[60] [2023] WASC 294 [65] - [67].
Tottle J supplemented those principles in Poland v Hedley [No 6] by emphasising that there must be an intent to injure the plaintiff and that it was not enough to establish that the acts of the conspirators necessarily involved injury to the plaintiff, or that the plaintiff was a person reasonably within the contemplation of the conspirators as a person likely to suffer damage. Having said that, the intent to injure, while required, need not be the predominant motive of the conspirators.[61]

7.1 Tortious conspiracy: September 2022 SOC

[61] Poland v Hedley [No 6] [10] and the cases cited therein.

Mr Kirkup, as the most recently added political defendant,[62] was joined to the conspiracy claim by the September 2022 SOC.
[62] As noted above, Mr Kirkup was joined as the seventh defendant by orders made by Tottle J on 28 January 2022.
By the time of the September 2022 SOC, Mr Poland continued to be the sole plaintiff (proposed or otherwise), and the tortious conspiracy was pleaded at [18A] ‑ [22].
For the reasons set out in Poland v Hedley [No 5], Tottle J struck out Mr Poland's tortious conspiracy claim pleaded in the September 2022 SOC.
In overview, in Poland v Hedley [No 5], Tottle J said:
[10]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.
[11]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.
Tottle J held that the relevant pleas in a number of ways did not meet the required clarity and certainty.[63]
[63] Poland v Hedley [No 5] [85].
In the September 2022 SOC, Mr Poland had 'improved'[64] his claims of loss and damage (from the tortious conspiracy) to:
1.his costs and fees in lodging the initial Writ in these proceedings;
2.his costs of responding to freedom of information requests made to the Peel Development Commission and to the office of the relevant Minister; and
3.legal expenses in considering and responding to the freedom of information requests.[65]
[64] Initially, as noted, Mr Poland had only claimed the filing fee of the initial Writ as damages suffered from the conspiracy claim: see Poland v Hedley [No 5] [9], [103] (Tottle J). The claims of loss and damage which were in the September 2022 SOC, had first been made by Mr Poland in the October 2021 SOC.
[65] Particulars of loss and damage to September 2022 SOC [23].
Tottle J held that the damages claim (outside of the costs and fees in lodging the Writ) did not sufficiently plead the relationship of cause and effect between the conduct and the alleged damage.[66]
[66] Poland v Hedley [No 5] [105] - [106].
Further, I consider the following observations that his Honour made in Poland v Hedley [No 5] are relevant to matters I must consider in this application:
[13]… on the basis of the [September 2022 SOC] the only immediately quantifiable loss is the filing fee on the issue of the writ.
[14]… on an application for leave to amend it may be necessary for [Mr Poland] 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 [Mr Poland] and, how any lack of proportionality that may be found to exist, bears on the exercise of the discretion to permit the amendment. …
Notwithstanding it being the 'primary' basis[67] advanced by the defendants, his Honour did not strike out the relevant pleas in the September 2022 SOC on the basis of the 'coherence principle' holding that:
1.the defendants' contended‑for‑principle did not apply to Mr Poland's conspiracy claim as then formulated, being that the tortious conspiracy claim was restricted to pecuniary loss, rather than damages for loss of his reputation; and
2.it was not necessary or appropriate to undertake a detailed consideration of the existence the coherence principle, particularly as his Honour was to strike out the pleas on other grounds.[68]

7.2 Tortious conspiracy: Proposed December 2023 SOC

[67] Poland v Hedley [No 5] [12], [62].

[68] Poland v Hedley [No 5] [79].

The plea of the tortious conspiracy in the Proposed December 2023 SOC started at [19]. As noted above, the Proposed December 2023 SOC sought to additionally plead claims by two companies, The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd. These pleas were made against each of the seven defendants.
The Proposed December 2023 SOC pleaded:
1.the formation of an agreement or common design by (all) the defendants to publish a media article based on the recording which was defined as the 'Conspiracy' at [32];
2.the steps (with particulars) that each of the defendants took in furtherance of the Conspiracy at [33];
3.that the purpose of the Conspiracy was to cause harm to the proposed plaintiffs (being Mr Poland, The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd): lengthy particulars were given of the matters from which the 'defendants' intention may be inferred' at [34];
4.the means by which the defendants carried out the Conspiracy was unlawful at [35];
5.the loss suffered by Mr Poland at [36];
6.the loss suffered by The Village Scarborough Beach Pty Ltd at [37]; and
7.the loss suffered by Coventry Village Pty Ltd at [38].
As noted, Tottle J dealt with the application for leave to plead the Proposed December 2023 SOC in Poland v Hedley [No 6]. His Honour observed that:
The conspiracy plea is lengthy and detailed and is not readily amenable to being summarised.[69]
[69] Poland v Hedley [No 6] [5].
It may be noted that in common with the September 2022 SOC, the Proposed December 2023 SOC pleaded a single conspiracy by all of the defendants to cause harm to all of the proposed plaintiffs.

7.2.1 The cause of action pleaded by the proposed corporate plaintiffs

Tottle J first considered the claim of The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd in the Proposed December 2023 SOC. It may be noted that as proposed to be pleaded there was one conspiracy of the defendants together to cause harm to these proposed plaintiffs. His Honour said:
1.in the Proposed December 2023 SOC at [19] ‑ [33], neither company was identified as a subject of the agreement or common design;[70]
2.in the plea of the intention to injure at [34] of the Proposed December 2023 SOC, the only acknowledgement of the claims of the two companies was that the previous plea of intention had been made plural to 'plaintiffs';[71] and
3.while the plea of intention to injure was supported by lengthy particulars, none supported the intention to injure either of the two then proposed corporate plaintiffs.[72]
[70] Poland v Hedley [No 6] [7]; a finding which was described by the Court of Appeal as being 'manifestly correct': second Court of Appeal decision.
[71] Poland v Hedley [No 6] [8].
[72] Poland v Hedley [No 6] [9].
Tottle J held that [10] - [35] of the Proposed December 2023 SOC did not plead reasonable causes of action for the two then proposed corporate plaintiffs for the reasons identified immediately above and said, taken at their highest, the facts pleaded supported a finding that the two proposed corporate plaintiffs suffered only incidental damage consequently on the publication of the Articles.[73]
[73] Poland v Hedley [No 6] [11].
Significantly, his Honour's findings that the particulars did not support an intention to injure either of the then proposed corporate plaintiffs was described by the Court of Appeal as being 'plainly correct'.[74]
[74] Second Court of Appeal Decision [35].
For reasons I will come to, his Honour also would have separately disallowed the two then proposed corporate plaintiffs' damages claims in the Proposed December 2023 SOC.[75]

7.2.2 Mr Poland's damages from the Conspiracy

[75] Poland v Hedley [No 6] [44].

After dealing with the pleas sought to be made by the two then proposed corporate plaintiffs, his Honour turned to Mr Poland's damages pleas which were pleaded and particularised at Proposed December 2023 SOC [36]. Mr Poland's then damages claims may be broadly categorised as follows:
1.court fees for the filing of his initial Writ - which was similarly claimed in the September 2022 SOC;[76]
2.legal expenses incurred in responding to freedom of information requests, which was similarly claimed in the September 2022 SOC;[77]
3.a loss from the The Village Scarborough Beach Pty Ltd's loss of the defined 'Scarborough Project';[78]
4.a loss by Coventry Village Pty Ltd resulting from having to pay interest on loans following the publication of the Articles, alternatively by the diminution in the value of the share he held in Coventry Village Pty Ltd;[79]
5.the loss of opportunity to successfully tender for 'other projects';[80] and
6.a loss by Strzelecki Holdings Pty Ltd having engaged Government relations consultants following publication of the Articles.[81]

7.2.2.1Mr Poland's FOI legal expenses

[76] Particulars of loss and damage to September 2022 SOC [23].

[77] Particulars of loss and damage to September 2022 SOC [23].

[78] The Scarborough Project was defined at Particular (iii) to the Proposed December 2023 SOC [36]. Particulars (iv) ‑ (viii) set out the loss of opportunity to further the Scarborough Project.

[79] This loss was set out in Particulars (ix) - (xiii) to the Proposed December 2023 SOC [36].

[80] This loss is set out at Particulars (xiv) - (xvi) to the Proposed December 2023 SOC [36].

[81] This loss is set out at Particular (xvii) to the Proposed December 2023 SOC [36].

In respect of the particularised claim for legal expenses relating to freedom of information claims, contained in particular (ii) to the Proposed December 2023 SOC [36], Tottle J in Poland v Hedley [No 6]:
1.described it as 'an expanded version' of the earlier plea from the September 2022 SOC;[82] and
2.held that the Proposed December 2023 SOC did not address the fundamental inadequacy of the causation plea from the September 2022 SOC which his Honour had previously identified in Poland v Hedley [No 5].[83]
[82] Poland v Hedley [No 6] [21].
[83] Poland v Hedley [No 6] [23]; See Poland v Hedley [No 5] [103] - [106].
In Poland v Hedley [No 6], his Honour disallowed that claim in the Proposed December 2023 SOC on two grounds:
1.it did not disclose a reasonable cause of action; and
2.it was embarrassing because it does not disclose the basis of the plaintiff's claim.[84]

7.2.2.2Mr Poland's losses from the loss of the Scarborough Project

[84] Poland v Hedley [No 6] [24].

Particular (iii) to the Proposed December 2023 SOC [36] defined the Scarborough Project as 'a premium retail and commercial coastal development of the North and South sites of the Scarborough Beachfront'.
It pleaded that:
1.Strzelecki Holdings Pty Ltd was the preferred proponent for the Scarborough Project;[85]
2.at the time of the Articles, The Village Scarborough Beach Pty Ltd remained the preferred proponent for the Scarborough Project;[86]
3.'By reason of' the publication of the Articles various parts of government 'ceased engaging' with Mr Poland and The Village Scarborough Beach Pty Ltd;[87] and
4.Mr Poland 'thereby lost the opportunity for The Village Scarborough [Beach Pty Ltd] to further the Scarborough Project which was worth up to an estimated $40 million'.[88]
[85] Particular (v) to the Proposed December 2023 SOC [36]
[86] Particular (vi) to the Proposed December 2023 SOC [36]
[87] Particular (vii) to the Proposed December 2023 SOC [36]
[88] Particular (viii) to the Proposed December 2023 SOC [36]
As to Mr Poland's pleaded loss outlined above, his Honour held that the particulars did not set out the facts on which the causal connection was said to be based and so failed to inform the defendants of the case they were required to meet.[89]
[89] Poland v Hedley [No 6] [26].
Further, his Honour identified what might be described as a disconnect between the allegation that The Village Scarborough Beach Pty Ltd was the vehicle used to pursue the Scarborough Project opportunity,[90] but it was Mr Poland who it was said had lost the opportunity to further the Scarborough Project.[91]
[90] With respect, Particular (v) identified Strzelecki Holdings Pty Ltd as the 'preferred proponent', but Particular (vi) described the Village Scarborough Pty Ltd as the 'preferred proponent'.
[91] Poland v Hedley [No 6] [27].
Tottle J disallowed Mr Poland's claim for damages based on the lost opportunity to further the Scarborough Project as:
1.the particulars disclosed no reasonable cause of action because the basis on which it is alleged Mr Poland suffered a loss was not pleaded; and
2.for those same reasons, the plea was embarrassing.[92]
[92] Poland v Hedley [No 6] [28].
His Honour set out the defendants' further submissions against Mr Poland's claimed damages in the Proposed December 2023 SOC arising out of the loss of the Scarborough Project: they being that the proper plaintiff in respect of the loss of the opportunity to pursue the Scarborough Project was The Village Scarborough Beach Pty Ltd and not Mr Poland. The defendants also submitted that the losses fell foul of the reflective loss principle.[93]
[93] Poland v Hedley [No 6] [29] and following.
Tottle J considered that as it was not apparent how Mr Poland advanced his claim in the Proposed December 2023 SOC, it was 'impossible' to express a view on the application of the reflective loss principle.[94] However, his Honour considered that Mr Poland's loss, depending on how it was formulated, may be merely reflective of the loss suffered by The Village Scarborough Beach Pty Ltd and Mr Poland would not have a reasonable cause of action in respect of that reflective loss.[95]
[94] Poland v Hedley [No 6] [35].
[95] Poland v Hedley [No 6] [35].
His Honour then offered these observations:
[35]… Assuming [Mr Poland] intended to plead: (i) a single conspiracy formed with the intention of injuring both him and Village Scarborough Beach so that they both have a cause of action (ii) both he and Village Scarborough Beach suffered loss and (iii) [Mr Poland's] loss is a diminution in the value of his shareholding in Strzelecki Holdings and derives (in ways that are presently unclear) from Strzelecki Holdings' shareholding in Village Scarborough Beach, then [Mr Poland's] claim would be for a loss merely reflective of the loss suffered by Village Scarborough Beach. [Mr Poland] would not have a reasonable cause of action in respect of that reflective loss.
As will be seen, these observations are pertinent, also, to the Proposed SOC which, like the previous two iterations, pleads a single conspiracy formed with the intention of causing harm to both Mr Poland and the Strzelecki Group.

7.2.2.3Mr Poland's loss by Coventry Village Pty Ltd paying interest

Particulars (ix) - (xiii) to Proposed December 2023 SOC [36] set out Mr Poland's claim for loss from Coventry Village Pty Ltd paying interest: see especially particular (xiii).
In respect of this claimed loss by Mr Poland in the Proposed December 2023 SOC, Tottle J held that:
1.Mr Poland's plea of loss based on the affairs of Coventry Village Pty Ltd faced similar difficulties to the claim for the loss derived 'through' The Village Scarborough Beach Pty Ltd;[96]
2.no facts were pleaded to support the assertion of why Coventry Village Pty Ltd had to pay interest, and further how Mr Poland was alleged to have suffered that loss;[97] and
3.the claim disclosed no reasonable cause of action because the basis on which it was alleged that Mr Poland suffered the loss was not pleaded and it was consequently embarrassing.[98]
[96] Poland v Hedley [No 6] [36].
[97] Poland v Hedley [No 6] [36], [37].
[98] Poland v Hedley [No 6] [39].
His Honour repeated, in the context of Mr Poland's alleged loss in relation to Coventry Village Pty Ltd, his observations as to the possible application of the reflective loss principle from the loss of the Scarborough Project.[99]

7.2.2.4 Mr Poland's claimed other losses

[99] Poland v Hedley [No 6] [40].

Mr Poland claimed other losses by particulars (xiv) - (xvii) to Proposed December 2023 SOC [36]. As to those 'other losses', Tottle J held that the facts linking the asserted expenses or losses to Mr Poland were not pleaded and so did not disclose a reasonable cause of action and were embarrassing.[100]

7.2.3 The proposed corporate plaintiffs' claimed losses

[100] Poland v Hedley [No 6] [41] - [43].

Tottle J held that a number of the defects that he had identified in Mr Poland's damages claims through or from The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd were also present for each of the claims in the Proposed December 2023 SOC for the particular proposed corporate plaintiff and should be similarly disallowed.[101]

7.3 Tortious conspiracy in the Proposed SOC

[101] Poland v Hedley [No 6] [44].

I have noted above that Tottle J dealt with the applicable legal principles for an unlawful means conspiracy in Poland v Hedley [No 5] at [65] - [69] and in Poland v Hedley [No 6] at [10] - [11].
In the Proposed SOC it is now proposed to plead that:
1.each of the defendants acted in conspiracy with the intention to cause harm to Mr Poland and the Strzelecki Group[102] (i.e. a single conspiracy is proposed to be pleaded) at [50];
[102] The Strzelecki Group was said to be comprised of Strzelecki Holdings Pty Ltd and 'its related entities': Proposed SOC [1.2].
2.the defendants formed an agreement or alternatively had a common design to publish a media article based on the Recording to the effect that Mr Poland and his business activities were corrupt: this is defined as the 'Conspiracy' at [51];[103]
[103] The defined 'Conspiracy' in the Proposed December 2023 SOC was that the 'defendants formed an agreement alternatively had a common design to publish a media article based on the Recording' [32]. Essentially, the plaintiffs seek to add the words 'to the effect that [Mr Poland] and his business activities were corrupt' in the Proposed SOC [51].
3.the means by which the defendants carried out the Conspiracy to cause harm to Mr Poland, Strzelecki Holdings Pty Ltd, The Village Scarborough Beach Pty Ltd and Coventry Village Pty Ltd were unlawful and inflicted harm on each of them at [53];
4.Mr Poland suffered loss and damage at [54.1], [54.2], [54.3.3] and [54.4.3];
5.The Village Scarborough Beach Pty Ltd had lost the opportunity to earn profit from the Scarborough Project at [54.3.1];
6.Coventry Village Pty Ltd had lost of a sum of money it otherwise did not need to pay at [54.4.1]; and
7.Strzelecki Holdings Pty Ltd had suffered losses by:
(a)suffering a diminution in the value of its shareholding in The Village Scarborough Beach Pty Ltd by reason of the latter company losing the opportunity of the Scarborough Project at [54.3.2]; and
(b)reason of Coventry Village Pty Ltd suffering loss and damage at [54.4.2].

7.3.1 The proposed corporate plaintiffs

The below discussion about the Strzelecki Group and the proposed corporate plaintiffs is set out in order to consider whether the Proposed SOC adequately pleads the critical element of the intention to injure the proposed corporate plaintiffs by the defendants.
That purpose must be borne in mind throughout the following discussion.
It appears that the Proposed SOC seeks to overcome the problem identified by Tottle J with the Proposed December 2023 SOC (that the then two proposed corporate plaintiffs were not identified as a subject of the agreement or common design on which the alleged conspiracy was based) by proposing to plead that:
[50] Each of the defendants acted in conspiracy with the intention to cause harm to [Mr Poland] and the Strzelecki Group. …
With respect, that change in the material facts pleaded in Proposed SOC [50] (from that in Proposed December 2023 SOC [34]) calls to mind a similar, previous cosmetic change identified by Tottle J in Poland v Hedley [No 6], where the plea in the September 2022 SOC was changed from Mr Poland as the singular plaintiff simply to the plaintiffs in the Proposed December 2023 SOC.[104]
[104] Poland v Hedley [No 6] [8].
The defendants submit that an intention to injure the proposed corporate plaintiffs cannot be inferred from the proposed SOC which pleads at its highest an intention to injure the Strzelecki Group.[105]
[105] Defendants' Outline of Submissions filed 28 October 2024 [66].
In the Proposed SOC, as was the case in the Proposed December 2023 SOC, the 'Particulars of defendants' intention' contains pages of particulars.[106]
[106] Proposed SOC [50].
As was the case with the particulars appended to Proposed December 2023 SOC [34], the particulars to Proposed SOC [50] deal with a great many subjects, but it is not immediately clear how many of them could lead to inferences being drawn as to the defendants' intention to damage any particular proposed corporate plaintiff. No great comfort can be taken from the end of those 'particulars' to Proposed SOC [50] which says:
Further particulars may be provided following discovery and inspection, the administering of interrogatories, the issue of subpoenas and in any event prior to trial.

The Strzelecki Group

The Proposed SOC [1.2] pleads:
[Mr Poland] is and at all material times was a prominent Western Australian businessman through his business interests in and as Chairman of the 'Strzelecki Group' of entities, which is comprised of Strzelecki Holdings Pty Ltd (Strzelecki) and its related entities (Strzelecki Group), one of Western Australia's biggest tourism and restaurant operators which also conducts a wholesale seafood processing and packaging business. (emphasis omitted)
What the 'related entities' of Strzelecki Holdings Pty Ltd are or were is not defined or further explained. The defendants submit that it is unclear what is intended by the plea of 'related entities'.[107] It is, they submit for example, unclear whether the proposed plaintiffs intend to refer to s 50 of the Corporations Act 2001 (Cth).[108] The defendants submit that if 'related entities' is not intended to refer to s 50 of the Corporations Act, it is unclear what it means and entirely unclear as to the demarcation of the boundaries of members of the Strzelecki Group.[109]
[107] Defendants' Outline of Submissions filed 28 October 2024 [64].
[108] Defendants' Outline of Submissions filed 28 October 2024 [58].
[109] Defendants' Outline of Submissions filed 28 October 2024 [64].
The defendants further submit that, as pleaded in the Proposed SOC, the Strzelecki Group is an 'amorphous conglomeration of entities … [and] is not a small group of members each of which is easily ascertainable'.[110]
[110] Defendants' Outline of Submissions filed 28 October 2024 [57].
Broadly, I would accept those submissions.
The Proposed SOC pleads that each of the following is 'part of the Strzelecki Group':
1.Strzelecki Holdings Pty Ltd: [2.2];
2.The Village Scarborough Beach Pty Ltd: [4.1]; and
3.Coventry Village Pty Ltd: [5.1].[111]
[111] There is confusion in the Proposed SOC as it is pleaded that Strzelecki Holdings Pty Ltd was the sole shareholder of Coventry Village Pty Ltd but it is also pleaded that Mr Poland was the sole shareholder of Coventry Village Pty Ltd: [1.5]. It appears that it was intended to plead that Mr Poland, and not Strzelecki Holdings Pty Ltd, is the sole shareholder of Coventry Village: See Mr Poland's submissions in reply filed 14 November 2024 [66].
However, which, if any other, entities comprise the Strzelecki Group and what was known about the entities which comprised the Strzelecki Group either by the defendants or more generally, is not the subject of any further pleading in the Proposed SOC.

Strzelecki Holdings Pty Ltd

This proposed corporate plaintiff is not pleaded as an entity which the defendants intended to injure by their conspiracy.
The Proposed SOC pleads that Mr Poland at all material times was the sole shareholder and a director of Strzelecki Holdings Pty Ltd: [1.3].
Further, the Proposed SOC pleads of Strzelecki Holdings Pty Ltd that at all material times it was:
1.the primary corporate vehicle by which Mr Poland conducted his business activities: [2.1];
2.the trustee of the Strzelecki Trust: [2.3];
3.the sole shareholder of The Village Scarborough Beach Pty Ltd with that one share being held by it for the Strzelecki Trust: [2.5], [4.1]; and
4.the parent company of Coventry Village Pty Ltd: [5.1].[112]

The Village Scarborough Beach Pty Ltd

[112] As to this plea, see footnote 111 above.

This proposed corporate plaintiff is not pleaded as an entity which the defendants intended to injure by their conspiracy.
The Proposed SOC pleads that Mr Poland was at all material times a director of The Village Scarborough Beach Pty Ltd: [1.4].
In relation to The Village Scarborough Beach Pty Ltd, the Proposed SOC further pleads that at all material times it was:
1.a wholly owned subsidiary of Strzelecki Holdings Pty Ltd: [4.1]; and
2.the corporate vehicle by which Mr Poland and Strzelecki Holdings tendered for the development of, and proposed to develop, the Scarborough Project: [4.2].

Coventry Village Pty Ltd

This proposed corporate plaintiff is not pleaded as an entity which the defendants intended to injure by their conspiracy.
The Proposed SOC pleads that at all material times Mr Poland was the sole shareholder of Coventry Village Pty Ltd: [1.5]. And, further, pleads that he was a director of it from 2 October 2012 until August 2016 (i.e. ceasing at least two years prior to the publication of the Articles): [1.6].
The Proposed SOC further pleads in relation to Coventry Village Pty Ltd that:
1.since about October 2012 it has operated the Coventry Village Shopping Centre in Morley: [5.2];
2.since about 15 October 2012, it has been the trustee of the Coventry Square Unit Trust: [5.3]; and
3.prior to 15 October 2012, Coventry Square WA Pty Ltd was the trustee of the Coventry Square Unit Trust (CSU Trust) at particular (i) to [5.3].

7.3.2 Intention to harm

I now return to the defendants' intention which is a critical element of the tort of unlawful means conspiracy.
The plea at Proposed December 2023 SOC [34] and its particulars were held not to be sufficient to support the intention to injure either of the then two proposed corporate plaintiffs by Tottle J in Poland v Hedley [No 6] at [9].
There are a great many similarities between the particulars from which the defendants' intention is to be inferred as appended to Proposed December 2023 SOC [34], and those appended to Proposed SOC [50] for the same purpose. Indeed, many of the latter particulars are materially from the same as the earlier particulars.
A comparison of the 'particulars of defendants' intention' between the Proposed SOC and the Proposed December 2023 SOC shows that, in substance, the only two new particulars are (i) and (ii) to Proposed SOC [50]. They are:
(i)[Mr Poland's] status, wealth and political influence were due to his success as a prominent Western Australian businessman through the Strzelecki Group, which was known to the defendants.
(ii)Any detriment caused to [Mr Poland] or the Strzelecki Group would negatively impact the [Mr Poland's] status, wealth and political influence, which was known to the defendants.
In addition, I note that in Proposed SOC [50], particulars (iv)(b) and (ix)(b) may be considered to be materially new; namely that they plead that the Articles were critical of Mr Poland and his business activities.
I leave aside, for present purposes, the position of Mr Poland and consider the proposed corporate plaintiffs.
The Proposed SOC does not set out any basis for the above two new allegations as to the defendants' knowledge made in particular (i) and particular (ii) to [50]. They are bare and unsupported. That is significant given the previous findings by Tottle J in Poland v Hedley [No 6] as to the insufficiency of the previous pleas as to the defendants' intention.
Nor does the Proposed SOC assert (on any properly pleaded basis or otherwise) that the defendants, or any of them, knew:
1.that the proposed corporate plaintiffs were part of the 'Strzelecki Group'; nor
2.what business activity or activities Mr Poland conducted through any of the Strzelecki Group or the proposed corporate plaintiffs.
I consider that the new particulars of 'knowledge' do not support the proposed plea as to the defendants' intention to injure the Strzelecki Group, nor any one of the proposed corporate plaintiffs. Consequently, the proposed pleas do not, in my view, articulate with the required clarity and certainty the basis of the tortious case being put against the defendants.
I do not consider that any matters are pleaded in the Proposed SOC which could support a plea that the defendants knew, or must have known, that the proposed corporate plaintiffs were part of the Strzelecki Group or otherwise related to it or to Mr Poland. So, even if one could say (and, as developed below, it could only be in relation to the Second Article) that the defendants had an intention to injure the Strzelecki Group, that, of itself, says nothing in the present circumstances about the defendants' intention to injure any one of the proposed corporate plaintiffs.
As I have noted, leaving aside the 'new' particulars as to the defendants' asserted knowledge which were not before Tottle J, the balance of the particulars to Proposed December 2023 SOC [34] were not considered by Tottle J to viably plead the defendants' intention to injure the two then proposed corporate plaintiffs.
The Court of Appeal considered that Tottle J was plainly correct in reaching that conclusion.[113]
[113] Second Court of Appeal decision [35].
The below table demonstrates the corresponding particulars between Proposed SOC [50] and Proposed December 2023 SOC [34]:

Particulars to Proposed SOC [50]

Particulars to Proposed December 2023 SOC [34]

The way and circumstances in which the Articles were written

(iii) - (iv), (viii) - (xiii)

(i) - (vii)

Admissions from [17] of first to third defendants' amended defence filed 1 August 2019

(xv)

(ix)

Hondros/Hedley/Grainger call on 27 February 2019

(xvi)

(xiv)

Hedley emails

(xvii) - (xviii)

(xv) - (xvi)

Hastie/Kirkup viewed Poland as political opponent

(xxxi) and (xxxvi)

(xix)

Bradley sends email to personal address

(xxiv)

(xi)

Defendants' aggravating conduct

(vii), (xiv), (xix), (xxi), (xxiii), (xxvii), (xxxiv), (xxxviii)

(viii)

Hastie/Kirkup not speaking to Poland

(xxx) and (xxxv)

(xiii)

Hastie provided Bradley's personal email address

(xxxviii)

(x)

Number and timing of communications

(v), (vi)

(xvii), (xviii)

Political defendants were sources

(xxv), (xxvi), (xxxii), (xxxvii)

(xxi)

Hastie's distribution of the Recording

(xxix)

(xxii)

The Recording was distributed without consent because it was 'in the public interest'.

(xxxiii)

(xxii)

With respect, by parity of reasoning with that of Tottle J, I would not find differently from his Honour as to the sufficiency of any of the pleas made by those 'common' particulars.
The proposed plaintiffs submit that:
… where defendants combine to inflict harm on an ascertainable class or group, an intent to injure any member of that class or group can be readily inferred.[114]
[114] Mr Poland's Outline of Submissions filed 1 October 2024 [8] which submission refers, amongst others, to Dresna Pty Ltd v Misu Nominees Pty Ltd [2004] FCAFC 169 (Dresna) [11] and Uber Australia Pty Ltd v Andrianakis [2020] VSCA 186; (2020) 61 VR 580. It may be noted that these two were also cited by Tottle J in Poland v Hedley [No 6] [10].
As I understand it, the question is not whether someone may have ascertained that there was a class or group, or that, factually or legally, there was such a class or group.
Rather, if there is such an ascertainable class or group, then that may provide the basis from which an intent to injure any member of that class or group may lead to the inference of an intention to injure any other member of the class or group.
As the Full Federal Court said in Dresna Pty Ltd v Misu Nominees Pty Ltd:
The test for an action based upon a conspiracy is what was the object in the mind of those combining when they acted as they did: … .[115]
[115] Dresna [12] (Kiefel and Jacobson JJ); See also Dresna [119], [125] and [126] (Weinberg J).
So, in my view, the question of the ascertainability of persons or entities as being in a class or group is not some separate enquiry. Rather, it goes to the proving of the intention of the defendant/s to injure the plaintiff/s.
If that is correct, then the deficiencies I have identified above in relation to the pleas of knowledge are important and the proposed plaintiffs' submissions do not overcome those deficiencies.
The above reasons are sufficient for me to refuse leave to the proposed corporate plaintiffs to plead the tortious conspiracy in the Proposed SOC.
As noted, the Proposed SOC continues to plead a single conspiracy by the defendants against all of the proposed plaintiffs.
In those circumstances, I do not think that a question of Mr Poland having leave to plead the tortious conspiracy alone (and without the Strzelecki Group or the proposed corporate plaintiffs) arises. Certainly, Mr Poland did not put that in argument and has not made that contention.
In any event, as will be seen below, I would additionally and separately refuse Mr Poland leave to plead the tortious conspiracy on his own by reason of the coherence principle.
Consequently, I would refuse leave to all of the proposed plaintiffs to plead the tortious conspiracy in the Proposed SOC.
In addition to gratefully adopting his Honour's reasoning in Poland v Hedley [No 6] [9] on the insufficiency of particulars to Proposed December 2023 SOC [34], I make the further below observations.
Leaving aside the defendants' asserted knowledge, when one works through the more relevant 'particulars' of the defendants' intention to damage particular companies as appended to Proposed SOC [50], it is apparent that they assert intention by reference to the final form of the Articles: see, for example, particulars (iii), (iv), (viii), (ix) to Proposed SOC [50].
Indeed, it is apparent that the proposed corporate plaintiffs must relevantly rely heavily on the content of the Articles to establish the critical element of the intention to injure each of the proposed corporate plaintiffs.

The defendants submit that this Court should not consider allowing the Proposed SOC to plead the content of those telephone calls without listening to the Recording.[123] However, even with the benefit of the Recording (and transcript), I do not understand how the Recording sheds any light on the content of the telephone calls.
[123] Defendants' Outline of Submissions filed 28 October 2024 [8], [106] and following; especially at [111] and [116].
If Tottle J had not reached the conclusion he did in Poland v Hedley [No 6] [18], as quoted in [222] above, I would have refused leave to re‑plead the Proposed SOC on the basis that it appears to me that Mr Poland's plea as to the political defendants' purpose is nothing more than speculation and conjecture.
His Honour in Poland v Hedley [No 5] described certain reasoning of Mr Poland as post‑hoc reasoning.[124] That, with respect, seems to me equally applicable to the pleading of the purpose from the telephone conversations in the Proposed SOC.
[124] Poland v Hedley [No 5] [58] as quoted in [34] above.
While Tottle J correctly identified that the refusal of leave to re‑plead should be exercised with caution, for me here it would have been overcome by the most important principle that there should be a proper basis to plead the sort of serious allegation which Mr Poland pleads as to the purpose of supplying the Recording, effectively, to the media defendants.
I would have reached that conclusion on the basis that:
1.Mr Poland had previously taken the view, presumably by reference to a pleader's ethical obligations, that he did not have a basis to make allegations as to the substance of the conversations;
2.there was nothing before the Court to suggest that there has been any change in the materials available to the pleader for Mr Poland;
3.rather, it appears that the pleas as to the content of the conversations in the Proposed December 2023 SOC and the Proposed SOC have been crafted to meet the exingencies resulting from Tottle J's judgment in Poland v Hedley [No 5]; and
4.the telephone conversations in the Proposed SOC are pleaded in a way that does not discriminate between calls both as to their duration,[125] and their timing compared to when the First or Second Article was published.
[125] See the defendants' submissions as to the artificiality of the pleas at ts 473 - 475. With respect, I consider there is much force in these submissions.
However, that is not the approach which Tottle J took in Poland v Hedley [No 6]. That I would be inclined to a different view does not mean, in my consideration, that I should not now take the same approach as his Honour did. The parties should expect that to be the position unless his Honour's reasoning had been overturned, or I was convinced that his Honour was plainly wrong. I am not, with respect, at that level of satisfaction.

The proposed corporate plaintiffs' 'direct' losses by damage to their reputations

As noted above, the defendants, in seeking to strike out the September 2022 SOC and in opposing leave to plead the Proposed December 2023 SOC, relied on the 'coherence principle'. Tottle J noted that but did not decide either of those applications on that basis.
In Poland v Hedley [No 5], Tottle J outlined the parties' contentions going to the coherence principle at [70] - [80].
His Honour said:
[79] I am not prepared to strike out [Mr Poland'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 [of the September 2022 SOC] and [Mr Poland's] reliance on the publication of the Articles to establish an intention to harm, [Mr Poland] 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 [Mr Poland'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 [Mr Poland's] claim. This is particularly so when for other reasons the claim in its present form will be struck out.[126] (emphasis added)
[126] Poland v Hedley [No 5] [79].
Further, by way of example, in relation to the loss of the Scarborough Project in Poland v Hedley [No 6], Tottle J said:
…
In the context of this case, this has added importance because (as explained in [Poland v Hedley [No 5]]) the defendants have foreshadowed reliance on what they have described as 'the long-standing principle' that requires a claim for compensation for injury to reputation to be brought as an action for defamation (the coherence principle). If, as appears may be the case, the proposition underlying the causal connection pleaded in particular (vii) is that [Mr Poland's] reputation was damaged by the publication of the Articles and this affected Development WA's attitude to Village Scarborough Beach, then the defendants may renew their reliance on the coherence principle.[127] (citations omitted) (emphasis omitted).
[127] Poland v Hedley [No 6] [26].
That has proved to be the case.
The defendants have renewed their submissions and submit that each of the pleaded losses relating to the Scarborough Project, the money paid by Coventry Village Pty Ltd and the other losses of Strzelecki Holdings Pty Ltd (with the exception of the FOI costs) are pleaded as claims for economic losses as a result of the damage to the reputations of the plaintiffs caused by the publications of the Articles.[128]
[128] Defendants' Outline of Submissions filed 28 October 2024 [76] - [82].
The parties also relied on submissions which had been filed before Tottle J, namely:
1.the defendants' outline of submissions filed 3 March 2023 [13] ‑ [18]: see defendants' outline of submissions filed 28 October 2024 [73]; and
2.Mr Poland's written submissions filed 23 March 2023: see Mr Poland's submissions in reply filed 14 November 2024 [33].
As I have set out above, the Proposed SOC pleads as a foundational fact the damage to the reputations of the plaintiffs as leading to the losses claimed for the tortious conspiracy. That express foundational plea was not made in the September 2022 SOC, nor in the Proposed December 2023 SOC.
The proposed plaintiffs submit that:
1.this application is not the appropriate occasion to determine the application of the coherence principle;[129]
2.the coherence argument should not be determined in an interlocutory application, as it could stifle the development of the law;[130]
3.reputation is the primary interest underlying the cause of action for defamation but compensation for injury to reputation is possible through various causes of action;[131]
4.none of the defendants' submissions cite an authority that considered a tortious conspiracy pleaded in parallel to a cause of action in defamation;[132]
5.the cases of Sattin v Nationwide News Pty Ltd,[133] Sullivan v Moody[134] and Tame v New South Wales,[135] (relied on by the defendants) were only concerned with the proper boundaries of a duty of care in negligence in somewhat novel circumstances and coherence was invoked with respect to the duty question and not as some broader free‑standing principle;[136]
6.outside of those three decisions, there was minimal persuasiveness in the non‑binding authorities on which the defendants rely;[137]
7.defamation and tortious conspiracy do not respond to the same underlying interest;[138]
8.tortious conspiracy protects the economic interests of plaintiffs whereas defamation law does not unless the claim also involves an allegation of special damage;[139] and
9.the concurrent pleading here is justifiable in that each is a distinct wrong which deserves a distinct remedy.[140]
[129] Mr Poland's Submissions in Reply filed 14 November 2024 [32]
[130] Mr Poland's Submissions in Reply filed 14 November 2024 [60].
[131] Mr Poland's Submissions in Reply filed 14 November 2024 [34].
[132] Mr Poland's Submissions in Reply filed 14 November 2024 [35].
[133] Sattin v Nationwide News Pty Ltd (1996) 39 NSWLR 32.
[134] Sullivan v Moody [2001] HCA 59; (2001) 207 CLR 562 .
[135] Tame v New South Wales [2002] HCA 35; (2002) 211 CLR 317 .
[136] Mr Poland's Submissions in Reply filed 14 November 2024 [38].
[137] Mr Poland's Submissions in Reply filed 14 November 2024 [43].
[138] Mr Poland's Submissions in Reply filed 14 November 2024 [48].
[139] Mr Poland's Submissions in Reply filed 14 November 2024 [56] - [57].
[140] Mr Poland's Submissions in Reply filed 14 November 2024 [59].
As I have noted already, the damage to the proposed plaintiffs' reputation is now pleaded in the Proposed SOC as a foundational fact to the losses said to have been suffered.
In short, even if I otherwise would have given the plaintiffs leave to plead the Proposed SOC on the tortious conspiracy, I would have upheld the defendants' submissions and refused leave on the basis of what the defendants have described as the coherence principle.
In my view, rather than stifling the development of the law, the Proposed SOC relying, in this respect, on the communication of the Articles; the damage to the proposed plaintiffs' reputations; and consequent loss pleads claims which cannot be maintainably advanced on the current state of the law, which I consider to be clear.
In Sullivan v Moody, the High Court considered whether medical practitioners and social workers who had reached, and reported, opinions suggesting or asserting that certain children had been sexually abused owed a duty of care to the respective fathers of the children. The Court recorded the fathers' position as follows:
Each appellant contended that he had not abused his children and that he had been injured as a result of the respondents' negligence in reaching and reporting an opinion suggesting or asserting the contrary.[141]
[141] Sullivan v Moody [23] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).
The Court in finding there was no duty owed said:
[53] … There are cases, and this is one, where to find a duty of care would so cut across other legal principles as to impair their proper application and thus lead to the conclusion that there is no duty of care of the kind asserted.
[54]The present cases can be seen as focusing as much upon the communication of information by the respondents to the appellants and to third parties as upon the competence with which examinations or other procedures were conducted. The core of the complaint by each appellant is that he was injured as a result of what he, and others, were told. At once, then, it can be seen that there is an intersection with the law of defamation which resolves the competing interests of the parties through well‑developed principles about privilege and the like. To apply the law of negligence in the present case would resolve that competition on an altogether different basis. It would allow recovery of damages for publishing statements to the discredit of a person where the law of defamation would not.
[55]More fundamentally, however, these cases present a question about coherence of the law.[142] (citations omitted) (emphasis added).
[142] Sullivan v Moody [53] - [55] (Gleeson CJ, Gaudron, McHugh, Hayne and Callinan JJ).
In Tame v New South Wales, Mrs Tame sought to sue, in effect, a police officer who had wrongly recorded her blood alcohol level when completing a report on a traffic accident.
Gleeson CJ said:
[28]Furthermore, as in Sullivan v Moody, this is a case where the appellant claims to have been injured in consequence of what others were told about her. There is the same intersection with the law of defamation, and the same need to preserve legal coherence. In the events that occurred, Mrs Tame's reputation was not harmed. But suppose it had been. Then the law would have engaged in an exercise of balancing the rights and responsibilities of Mrs Tame and Acting Sergeant Beardsley by reference to considerations many of which would be rendered irrelevant by the application of the law of negligence.[143] (citations omitted)
[143] Tame v New South Wales [28]; see also [58] (Gaudron J); [123] (McHugh J); [323] (Callinan J).
With respect to the submissions to the contrary by the proposed plaintiffs, I do not consider that Sullivan v Moody or Tame v New South Wales are to be read as being applicable simply as between the law of negligence and that of defamation. Indeed, given the High Court's concern about legal coherence, it would be surprising if the Court were concerned about coherence only between the law of negligence and the law of defamation.
Again, I accept that there has not been a case cited to me in which tortious conspiracy has been pleaded in parallel to a cause in defamation. That may be thought to cut both ways.
In any event, in Griffith v The Australian Broadcasting Corporation[144] claims in deceit and injurious falsehood were struck out by reference to the judgments in Sullivan v Moody and Tame v New South Wales. The claim in deceit was struck out as it was held to be a claim to recover damages for harm to reputation.[145] The claim for injurious falsehood was not struck out because it was held that the effect of the plea was unclear. Cripps AJ said:
It may be that the damage to which the first named plaintiff is entitled should it make out its claim for injurious falsehood is the same as it made out or could have made out in defamation. However, on the material before me I am not prepared to strike that claim out.[146]
[144] Griffith v The Australian Broadcasting Corporation [2004] NSWSC 582 (Griffith).
[145] Griffith [31] - [32].
[146] Griffith [33].
As I have already set out, in my view, this case is different because of the pleas that the losses have occurred by reason of the damage to the proposed plaintiffs' reputations.

The 'indirect' losses claimed and the reflective loss principle

The position I have reached in relation to not granting leave to plead the tortious conspiracy because of the deficiencies as to the pleading of the defendants' intention to injure and, further or alternatively, because of the 'coherence principle' means I do not need, again, strictly to consider the indirect losses which are proposed to be claimed by the plaintiffs in the Proposed SOC.
However, I would not have granted leave to plead the 'indirect' losses in the Proposed SOC for the following reasons which I have expressed in short form.
In short, as I understand it, taking a conservative view of the reflective loss principle, an 'indirect' loss (say by the diminution of the value of shares in a company) may be permitted if the party or parties suffering the indirect loss have a separate cause of action which might lead to the recovery of that indirect loss.
The Proposed SOC, however, pleads, as observed above, one tortious conspiracy to injure all of the proposed plaintiffs.
As noted above, in Poland v Hedley [No 6] Tottle J considered the principles described as the 'reflective loss principle';[147] and then, as I have set out in paragraph [117] above, his Honour offered certain 'observations' which I consider are pertinent to the Proposed SOC.
[147] Poland v Hedley [No 6] [29] - [35].
No party, in this application, suggested that his Honour had mis-stated the applicable principles[148] and, with respect, I gratefully adopt his Honour's observations and summary of the relevant principles, including those from the Court of Appeal's decision in Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2].[149]
[148] Mr Poland's Outline of Submissions filed 1 October 2024 [31].
[149] Mineralogy Pty Ltd v Sino Iron Pty Ltd [No 2] [2021] WASCA 105; (2021) 57 WAR 468 (Mineralogy [No 2]).
The Court of Appeal in Mineralogy [No 2] stated the principles after a review of the authorities as follows:
1.Where a company suffers loss caused by a breach of duty owed to it, only the company may sue in respect of that loss. No action lies at the suit of a shareholder to make good a diminution of the value of the shareholder's shareholding where that loss merely reflects the loss suffered by the company.
2.This will be so even if the company has declined or failed to take action to recover the loss.
3.If the company suffers loss, but has no cause of action to sue to recover that loss, a shareholder with a cause of action who suffers loss to the value of his shares may sue in respect of it.
4.The reflective loss principle does not prevent a shareholder suing for a loss suffered from a breach of duty owed to him or her where the loss is separate and distinct from the loss suffered by the company.
5.The principle extends to the case where both the company and the shareholder have a claim for breach of duty or breach of contract which caused the loss.[150] (citations omitted)
[150] Mineralogy [No 2] [268] - [270] (Buss P, Murphy and Beech JJ); see also a similar statement of the principles by the Full Court of the Federal Court in Garner v Central Innovation Pty Ltd [2022] FCAFC 64 [122] ‑ [128] (Charlesworth, Stewart and Halley JJ).
Of most relevance here is that a shareholder, for example, must have a wrong done to them which is separate from the wrong done to the company.
So, here, if one of the corporate plaintiffs suffered loss, but have had no cause of action to recover that loss (e.g. by reason of the findings I made above as to the maintainability of the proposed corporate plaintiffs' direct losses by damage to their reputations) a shareholder with a separate cause of action may sue even if their loss is the diminution of the value of their shares.
In my view, the 'indirect' losses claimed by the various proposed plaintiffs in the Proposed SOC all fall foul of the reflective loss principles set out above.
To the contrary, Mr Poland submitted:
[32]However, while the principle exists to prevent double recovery of loss and damage, it does not exist to bar a shareholder from pursuing a claim on the basis of suffering loss and damage distinct from the company: Garner v Central Innovation Pty Limited [2022] FCAFC 64 at [122] ‑ [128]. Accordingly, there is no reason to hold out a plaintiff from making a claim for loss caused to a company they own, when the company itself does not have a cause of action.
[33]While the [Mr Poland] maintains that he is the proper plaintiff in the proceedings, [the proposed corporate plaintiffs] are proposed as plaintiffs with claims in the alternative to the [Mr Poland]. This is intended to resolve any issue as to the proper plaintiff in respect of the alleged loss and damage. If the Court finds that they each have a cause of action against the defendants, the principle of reflective loss would apply.
[34]Put simply, there are several alleged heads of loss and damage as a result of the defendants' conduct. Either [Mr Poland] or one of the alternative plaintiffs must have a claim to this loss and damage. It cannot be the case that all alternative plaintiffs would be shut out from making a claim. Accordingly, it is reasonably arguable that one or another of the plaintiffs have a claim against the defendants. Therefore, this issue is not something to be resolved or precluded at a pleading stage and is properly a matter for trial. [151] (emphasis added)
[151] Mr Poland's Outline of Submissions filed 1 October 2024.
There is no distinct cause of action available to any of the proposed plaintiffs to recover their 'indirect' losses in the Proposed SOC. There is only one cause of action as pleaded by all the proposed plaintiffs.
I do not accept the submission made, as quoted above, that: 'Either [Mr Poland] or one of the alternative plaintiffs must have a claim to this loss and damage. It cannot be the case that all alternative plaintiffs would be shut out from making a claim'. The law does not operate on the basis that all losses must find a cause of action to remedy that loss.

The Recording and transcript

Mr Poland seeks suppression orders under O 67B of the RSC over the Recording and its transcript.
Such orders were intended to be made after the hearing on 26 November 2024.[152] Due to an administrative oversight, the orders were not made, however no one has accessed either the Recording nor its transcript.
[152] ts 512.
The objection by Mr Poland to the use of Recording and its transcript for the purposes of this application was as to relevance. There was no objection to the Court listening to the Recording or reading the transcript.[153]
[153] ts 415 - 416.
The matters which favour the making of the suppression order at this stage are:
1.Mr Poland maintains that the Recording was made illegally; and
2.the content of the Recording and its transcript are not relevant to the present, primary application.
The matters which may be considered to weigh against the making of the suppression order are:
1.the Recording is central to the causes of action which the proposed plaintiffs wish to plead;
2.the Recording contains no defamatory statements;
3.Mr Poland is the prime actor in the Recording;
4.if the matter progresses to a trial, inevitably the Recording will be played in open court;
5.the interests of open and transparent administration of the Court's work; and
6.the time which has elapsed from the making of the Recording (it being made on 15 January 2019).
Weighing up the above matters, my present view is that it is not in the interests of justice for there to be suppression orders over the Recording and its transcript.
However, I will hear further from the parties on this.

Disposition

For the reasons given above, I would grant leave to Mr Poland to plead the defamation claims in the Proposed SOC against the political defendants.
I would otherwise refuse Mr Poland and the proposed corporate plaintiffs leave to plead the claims in the Proposed SOC going to a tortious conspiracy. Mr Poland should file a further amended statement of claim within the leave granted. I propose that should be done within 21 days of the making of orders pursuant to these reasons.
I consider the parties should be able to agree the form of the orders to be made by the Court following these reasons.
However, if needs be, I will hear the parties as to the formulation of the final orders, including as to costs.

ANNEXURE 'A'[154]

[154] Taken from the particulars to the Proposed SOC [32]. The particulars have appeared in each of the filed and proposed iterations of Mr Poland's statements of claim. The particulars state Mr Poland does not have a copy of 'both' versions of the First Article.

The particulars to the Proposed SOC [32] stated that the opening paragraphs of the First Article were as follows:

"One of the state's biggest political donors has quit a board post on a regional development commission after an explosive meeting in which he tried to secure a deal to dump millions of tonnes of toxic soil in the Peel region. Within hours of questions being asked of Transport Minister Rita Saffioti and Regions Minister Alannah MacTiernan about the meeting, Peel Development Commission's deputy chairman Greg Poland resigned.

At the bizarre meeting in January Mr Poland told a local business owner how to acquire a valuable parcel of land in Myalup from the government without going to tender. But first the business owner would have to solve a political headache for the government by facilitating the dumping of up to eight million tonnes of toxic soil from the Forrestfield Airport Link project on his land in Waroona. In the meeting, which Mr Poland described as unorthodox and in which he allegedly asked a public servant to stop taking notes, Mr Poland said Ms Saffioti and Ms MacTiernan would push through a deal. Mr Poland claimed he had been asked by the ministers to help dump the soil, which was looming as a contentious issue for the government. As part of the deal outlined by Mr Poland, the government would transfer a parcel of land in Myalup to the business owner without going to tender. The business owner could use the Myalup land to mine building sand, which Mr Poland estimated could be worth up to $600 million."

ANNEXURE 'B'[155]

[155] Taken from the particulars to the Proposed SOC [39]. The particulars have appeared in each of the filed and proposed iterations of Mr Poland's statements of claim. The particulars state Mr Poland does not have a copy of 'both' versions of the Second Article.

The particulars to the Proposed SOC [39] stated that the opening paragraphs of the Second Article were as follows:

"One of the state's biggest political donors and tourism operators claimed credit for the state government's failed attempt to increase WA's lobster catch during a meeting in Perth in January. At the meeting, which took place at the height of a public controversy over the lobster plan, Greg Poland, who was the Peel Development Commission's deputy chairman until he resigned this week, said Fisheries Minister Dave Kelly botched its implementation because he wanted the government to own the extra lobster quota.

Mr Poland, who is chairman of Strzelecki Group which owns Sorrento Quay at Hillary's Boat Harbour, Dolphin Quay apartments, The Moorings and the Oceanic Retreat apartments as well as seafood processing and packaging plants and restaurants, was at a meeting when talk turned to Mr Kelly's controversial lobster plan Mr Poland, who has since backed away from claims made during the meeting, said the government's plan was about providing lobsters to the tourism industry, which was attempting to attract more visitors from China. …"
The Second Article also includes the following quote from a letter from the first plaintiff's solicitor (referring to an earlier letter sent by the first plaintiff):
"It is clear from the letter Mr Poland did not have any influence or hand in the policy as it was announced as he suggested how he in fact would have done it differently."
The quote is immediately followed by the following statement:

The letter, sent on December 21, 2018, said Mr Poland's company, Strzelecki Group, fully endorsed Mr Kelly's December 8 announcement regarding WA's western rock lobster supply.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IF
Associate to the Hon Justice Howard
6 AUGUST 2025

Proposed December 2023 SOC	Proposed SOC
[23]	[19]
[24]	[20]
[25]	[21]
[26]	[22]
[27]	[23]
[28]	[24]
[29]	[25]
[30]	[26] - [30]
[31]	[31]

Particulars to Proposed SOC [50]	Particulars to Proposed December 2023 SOC [34]
The way and circumstances in which the Articles were written	(iii) - (iv), (viii) - (xiii)	(i) - (vii)
Admissions from [17] of first to third defendants' amended defence filed 1 August 2019	(xv)	(ix)
Hondros/Hedley/Grainger call on 27 February 2019	(xvi)	(xiv)
Hedley emails	(xvii) - (xviii)	(xv) - (xvi)
Hastie/Kirkup viewed Poland as political opponent	(xxxi) and (xxxvi)	(xix)
Bradley sends email to personal address	(xxiv)	(xi)
Defendants' aggravating conduct	(vii), (xiv), (xix), (xxi), (xxiii), (xxvii), (xxxiv), (xxxviii)	(viii)
Hastie/Kirkup not speaking to Poland	(xxx) and (xxxv)	(xiii)
Hastie provided Bradley's personal email address	(xxxviii)	(x)
Number and timing of communications	(v), (vi)	(xvii), (xviii)
Political defendants were sources	(xxv), (xxvi), (xxxii), (xxxvii)	(xxi)
Hastie's distribution of the Recording	(xxix)	(xxii)
The Recording was distributed without consent because it was 'in the public interest'.	(xxxiii)	(xxii)