Quigley v Wallace
[2015] WASC 479
•14 DECEMBER 2015
QUIGLEY -v- WALLACE [2015] WASC 479
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 479 | |
| Case No: | CIV:1927/2015 | ON THE PAPERS | |
| Coram: | KENNETH MARTIN J | 14/12/15 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BARRY QUIGLEY MATTHEW QUIGLEY STEPHEN WALLACE |
Catchwords: | Defamation Interlocutory strikeout application Popular/False innuendos attacked as unarguable Pleading embarrassment Natural and ordinary meanings Electronic publication on web site Turns on own facts |
Legislation: | Nil |
Case References: | Maher v Nationwide News Pty Ltd [2013] WASC 254 Maisel v Financial Times Ltd [1915] 3 KB 336 Taylor v Jecks (1993) 10 WAR 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- First Plaintiff
MATTHEW QUIGLEY
Second Plaintiff
AND
STEPHEN WALLACE
Defendant
Catchwords:
Defamation - Interlocutory strikeout application - Popular/False innuendos attacked as unarguable - Pleading embarrassment - Natural and ordinary meanings - Electronic publication on web site - Turns on own facts
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : On the papers
Second Plaintiff : On the papers
Defendant : On the papers
Solicitors:
First Plaintiff : GG Legal
Second Plaintiff : GG Legal
Defendant : Mossensons
Case(s) referred to in judgment(s):
Maher v Nationwide News Pty Ltd [2013] WASC 254
Maisel v Financial Times Ltd [1915] 3 KB 336
Taylor v Jecks (1993) 10 WAR 309
1 KENNETH MARTIN J: I am dealing in this defamation action with the application of the defendant to strike out parts of the plaintiffs' amended statement of claim (ASOC) of 6 October 2015. The application is brought upon the basis that the impugned paragraphs either fail to disclose any reasonably arguable cause of action under RSC O 20 r 19(1)(a) or, alternatively, are embarrassing under RSC O 20 r 19(1)(c) in a pleadings sense, to the extent that they should be struck out.
2 By agreement of the parties under directions which I have made concerning this interlocutory strikeout application, the matter has been dealt with on the papers, in accordance with the parties' written submissions. To that end, I hold the written outline of submissions of the defendant, filed 6 November 2015. Those written submissions are responded to by the plaintiffs' outline in opposition dated 10 November 2015.
3 In order to evaluate the challenges which have been put against the plaintiffs' pleading, it is necessary to identify the words complained of, and then, the imputations which the plaintiffs contend arise as the natural and ordinary (defamatory) meaning of those words.
4 The plaintiffs, who are father and son, contend for a number of imputations defamatory against both of them, arising out of the alleged publication over the internet some time during or prior to January 2015 of words which are referred to as the 'Post'.
5 A website identified under par 3 of the ASOC is referred to as a 'public website maintained by Google.com' and which, inter alia, provided a facility for the posting of business reviews by members of the public. By particulars to ASOC par 3, it is contended that the defendant, Mr Wallace, authored the Post and submitted it to Google.com for it to be displayed on that public website.
6 It is next contended by par 4 of the ASOC that, as regards the content of the Post, that it:
provided a review authored by the defendant in respect of a business described as 'South Perth Pool Supplies XXX Canning Highway, South Perth WA'.
7 Before referring to the alleged defamatory words complained of within the Post, it is useful to further identify the parties and their relationships.
8 The first plaintiff, Barry Quigley, is the father of the second plaintiff, Matthew Quigley.
9 Barry Quigley is said to be a neighbour of the defendant, Mr Wallace, who lives at XXX Road, Bicton. It is said Barry Quigley 'lives across the road at XXX Road, Bicton': see par (1)(i).
10 The ASOC contends that Barry Quigley is a co-trustee with his wife, Alice, of the S & E Pool Supplies Trust, a discretionary family trust which carries on a business known as 'South Perth Pool Supplies', on premises at XXX Canning Highway, South Perth.
11 It is pleaded that Barry Quigley has been the manager of the business for the Trust since 1990 and is the primary contact person for customers and suppliers of that business.
12 Barry Quigley's son, Matthew, is also said to be a beneficiary of the Trust, like his father.
13 Matthew Quigley is said (pars 2(c) and (d)) to be 'employed in the business as a pool service technician' [who] 'regularly liaises and deals with customers and suppliers' of the South Perth Pool Supplies business. Paragraph 2 of the ASOC contends Matthew has been involved in the pool supply industry for about 4 1/2 years, commencing in 2011.
14 It is said of Matthew that he regularly visits his parents' house in XXX Road, Bicton and, further, see s 2(h):
including attending in a work vehicle in order to give [Mr Barry Quigley] a lift to work or to drop him off home after work.
15 Given the pending strikeout application by the defendant, no defence has yet been filed in response to the ASOC.
16 Paragraph 5 of the ASOC identifies that the content of the Post uploaded to Google.com in January 2015, as alleged, contained words defamatory of both Barry and Matthew Quigley. The words complained of as having been posted on Google.com by Mr Wallace are these:
If you think of using East Fremantle or South Perth Pool Supplies, then be aware of 15 restraining orders that exist. One of the owners, Barry Quigley and his son Matthew Quigley who works in the business are both ex-Navy Chief Petty officers and represent to me and my family and our friends the very worse [sic] of the disgusting ex-Navy bullies and thugs you read about in the paper. I can say this having been badly assaulted twice by Matthew Quigley (25 years younger than me) and also 'coward punched' by him and also been set upon by his father Barry Quigley (68 years old) and bashed up on my land two on one. In the last assault, they left me for dead on my land after they came over and set upon me bashing me up badly and on top Matthew coward punching me and both cowards then kicking me extensively when I dropped to the ground partly knocked out by the 'coward punch' from Matthew Quigley.
In the same incident they stole my mobile and my landline and the camera that recorded the assault and put [sic] in hospital. Matthew Quigley in this incident falsely claimed in court he came to 'rescue' his father from me, who at the time was on my land busy assaulting me, by coward punching me to the side of the head without warning, then joining his father in also bashing me and kicking me to the ground together with his father and even fruit loop …
They assaulted me because I recorded employees still attending the residential house each day at [redacted - XXX] Road and still using the house as a vehicle depot by storing more than two work vehicle at the house … Barry Quigley also has a high powered CCTV camera pointing straight at my house now so he can still bully and intimidate me and also perve on everyone walking along the footpath opposite his house and directly into my front yard … I have documents and videos to back up all I say here and suggest to use anyone else except these disgusting ex-Navy thugs and also a person with basic understanding of dental hygiene clean your pool …
17 The plaintiffs at ASOC par 6 contend that references to 'Barry' or 'Barrie' Quigley are a reference to the first plaintiff (Mr Barry Quigley). It is pleaded that he had the Post drawn to his attention 'by a supplier to the business who had identified the Post as identifying [Mr Quigley and his son, the second plaintiff]'.
18 Under par 7 of the ASOC Barry Quigley complains of seven (7) popular or false innuendos from the natural and ordinary meaning of the words of the Post, in these terms:
7. In their natural and ordinary meaning the said words meant, to the extent that they refer to Barry Quigley or Barrie Quigley and were understood to mean, the first plaintiff:
(a) is a thug;
(b) is a bully;
(c) has committed acts of violence on the Defendant by way of retribution for the Defendant recording employees of the Business attending the first plaintiff's house;
(d) is a coward;
(e) in company with [Matthew Quigley] stole the Defendant's mobile, landline and camera;
(f) trained a CCTV camera on the Defendant's property in order to spy on the Defendant and on persons coming and going to the Defendant's property; and
(g) is a pervert.
20 At par 10 of the ASOC, the second plaintiff, Matthew Quigley, contends the words of the Post in their natural and ordinary meanings (ie, as popular or false innuendos) meant that he:
(a) is a thug;
(b) is a bully;
(c) has committed acts of violence on the defendant by way of retribution for the Defendant recording employees of the Business attending the first plaintiff's house;
( ) [sic, currently unlettered] is a coward;
(d) [sic] in company with [Barry Quigley] stole the defendant's mobile, landline and camera.
21 Under the defendant's strikeout application four (4) of those five (5) imputations raised by Matthew are also challenged. That is save for the last imputation, as regards the alleged stealing of the defendant's mobile, landline and camera. Excision of that last imputation concerning Matthew correlates with the earlier excision from attack of the imputation contended under par 7(e), by Barry Quigley.
22 Unique imputations, therefore, which do not arise commonly for both Barry and Matthew Quigley, as between ASOC pars 7 and 10, are first, par 7(f), concerning the training of a CCTV camera on the defendant's property and, second, the imputation by par 7(g) as regards Mr Barry Quigley being, a 'pervert'.
23 I can now turn to the attack brought against the impugned imputations under the defendant's outline of submissions. In doing that, I remind myself at the outset of the principles applicable upon an interlocutory application of this kind in a defamatory action. The principles are collected and discussed in my reasons in Maher v Nationwide News Pty Ltd [2013] WASC 254 [16] - [26]. I need say no more than that the onus to be met by an applicant to demonstrate that an imputation is 'manifestly groundless or untenable' as an alleged meaning, is high and that a pleading challenge on the basis of asserted embarrassment must not be unduly precious - particularly in an era of modern case flow management seeking to discourage parties from unnecessary and wasteful interlocutory diversions.
Paragraphs 7(a) and 10(a) 'is a thug' & 7(b) and (10)(b) Barry/Matthew Quigley 'is a bully'
24 The essence of the defendant's attack against these imputations looks to be advanced upon a pleading embarrassment contention that there is no real distinction in the content of the Post, as between the plaintiffs' imputations of being a 'thug' and then a 'bully'.
25 Hence, it seems to be contended, as was observed by Anderson J in Taylor v Jecks (1993) 10 WAR 309, 320 - 321, that imputations must be sufficiently distinct. Moreover, distinct imputations should not be rolled together into the one imputation plea. A defendant should be able to respond separately to each by a defence, including a justification defence where open, as is appropriate. A lack of clarity, not to mention confusion, can result at a trial, if distinct imputation charges are lumped together into the one imputation. Conversely, repetitious pleas of what is essentially just the same charge, are equally distracting and unacceptable: Taylor v Jecks (319 - 320). That is what is being complained of here as regards 'thug' and 'bully'.
26 To that end, the defendant points to the Macquarie Dictionary meaning of the word 'thug'. A second meaning of 'thug' given by that dictionary is 'a bully, especially one who is overbearing and threatens violence'. Hence, the duplication complaint is made.
27 However, the first meaning in that same dictionary was 'a brutal, vicious or murderous ruffian, robber or gangster'.
28 By my assessment, every thug may be a bully. But the reverse proposition does not necessarily follow. A bully may not necessarily be a thug. Overbearing conduct in the nature of bullying can be implemented without necessarily threatening violence or 'thuggish' behaviour.
29 In the circumstances, I am not persuaded that there is any overall pleading embarrassment by duplication in allowing these two imputations to stand, they being insufficiently distinct in overall concept, in the context of the words of the Post, in my view.
30 Consequently, imputations 7(a) and 7(b) and, as regards Matthew Quigley, imputations 10(a) and 10(b), will stand for trial.
Imputations 7(c) and 10(c)
31 Again a challenge predicated upon alleged pleading embarrassment seems to emerge from the defendant's written submissions, which contend:
This imputation speaks of 'acts of violence by way of retribution for the defendant recording employees attending the first plaintiff's house'. The wording of this imputation attributes motive for an attack but otherwise the essence of this imputation is the commission of acts of violence of a thuggish or bullying kind, allegedly on the part of [either] plaintiff.
32 It is then said that this imputation in the end takes the matter no further than the imputations already seen under par 7(a) or 10(a), or par 7(b) and 10(b). The asserted embarrassment is said to be that the defendant does not know the case that has to be met, in terms of answering this imputation.
33 Upon my assessment, the words 'by way of retribution for the defendant recording employees of the business attending the first plaintiff's house' are unnecessary surplusage, by way of a distracting narrative and should be removed. However, the essence of the remainder of the imputations plea, as regards a commission of acts of violence upon the defendant, is a natural and ordinary meaning tied to what is now put as event-specific conduct, alleged against both plaintiffs. The event-specific conduct alleged, is as regards 'acts of violence' by Barry and Matthew Quigley.
34 An event-specific conduct imputation plea stands in some distinct contrast to the earlier wider and more general adverse or negative character traits, seen contended for as the defamatory imputations under pars 7/10(a) and 7/10(b), as regards the plaintiffs being either a 'thug' or a 'bully'.
35 In my view, it is open for the plaintiffs, without infringing any defamation embarrassment pleading principle to contend for what are conceptually narrower, conduct event-based defamatory imputations under pars 7/10(c): see Maisel v Financial Times Ltd [1915] 3 KB 336 at 339, 340, 343. However, the unnecessary surplusage which I have earlier identified within these imputation pleas should be removed by excision in due course by the plaintiffs. Otherwise, the imputations, so modified, can stand for trial.
Imputation 7(d)/10 (non-specific) 'coward'
36 The word 'coward' is deployed in the context of the Post, in reference to phrases such as 'coward punch' or 'coward punching'.
37 The imputation is challenged by the defendant, on the basis that it is 'not capable of being conveyed from the matter complained of'.
38 The defendant's written submissions attacking this imputation read (see par 14):
The fact the matter complained of uses the term 'coward' is not determinative of whether an imputation is reasonably capable of being conveyed. The defendant submits that the context in which the term is used in the matter complained of is a form of abuse. A reasonable reader not avid for scandal would not understand the matter complained of to be literally suggesting the first plaintiff is a coward. The text of the words do not convey cowardly behaviour. The text of the words describe an act of violence, not cowardice.
39 Hence, the defendant would seek to contend, in effect, that violence is not compatible with cowardly behaviour. I disagree.
40 The defendant's argument must be rejected. At present I am assessing the words complained of from the Post in order to determine whether they arguably arise, assessed objectively, as a defamatory imputation to an ordinary, reasonable reader, not avid for scandal and not taking an unduly legalistic approach: see Maher v Nationwide News [18] - [19]. In my view, it would be open for a jury, or a judge, as a trier of fact to conclude at a trial that these imputations as to coward were carried by the words of the Post as against both plaintiffs.
41 Whilst it is correct that the words complained of in the Post do attribute aggressive, even violent, behaviour to Barry and Matthew Quigley, manifested in their dealings with the defendant, the term 'coward punch' or 'coward punching' is now a commonly encountered modern day expression in contemporary Australia. Strong anti-violence public campaigns rightly characterising 'one punch' assaults as despicable conduct - on a basis that they are the actions of a coward, are commonly aired across mainstream or even social media.
42 The defendant's proposition that an act of violence is not compatible with the characterisation of someone being a 'coward' or, as it is put, 'cowardice', by my assessment, is not sustainable, either now or even in bygone times. In the folklore of the American Wild West, somebody who shot another in the back was branded a coward. There is, of course, the well-known 2007 Brad Pitt Hollywood film 'The Assassination Of Jesse James By The Coward Robert Ford': see makes, by its title, the very point. Assassination is an act of gross violence. Yet it was perpetrated by a 'coward'.
43 All this is a part of mainstream modern culture in which the hypothecation of the ordinary reasonable reader must function as a part of the law of defamation. The defendant's contention as to unarguability, in the end, is not sustainable.
44 These imputations must stand for trial.
Spying: imputations 7(f) and 7(g)
45 The defendants also challenge imputation 7(f) which, as regards Barry Quigley only, contends he trained a CCTV camera on the defendant's neighbouring property, in order to 'spy' on the defendant and on persons coming and going to the defendant's property.
46 The challenge against this imputation is put as follows (see par 15 of the defendant's written submissions):
The defendant submits it is not defamatory to say that a person uses a CCTV camera directed to a neighbour's property in order to spy on a neighbour. The conduct may be undesirable but in these modern times of social media, prevalent use of CCTV cameras and mobile telephones equipped with recording devices, an assertion of spying does not lower the first plaintiff 'in the estimation of right-thinking members of society generally'.
47 Alternatively (par 16) the defendant's challenge is that if Barry Quigley contends that it is the term 'spy' which carries the disparaging meaning against him then, as currently framed, par 7(f) is not a distillation of the final sting and, in any event, appears to be duplicitous with the further 'pervert' imputation, as pleaded at par 7(g). It is said that 'the repetition is evident when one has regard to the words which previously appeared at par 7(g)'.
48 In my view, the contended 7(f) meaning is arguably defamatory. It will be for the jury or the trier of fact at a trial to determine whether they are satisfied that this imputation, which arises as an event-based imputation, is defamatory or not. On my assessment, a contention that someone spies on another person or on other persons coming and going to a neighbour's property, is arguably defamatory. I would not consider that spying conduct generally in Australia has become so sanitized nowadays as to be acceptable - as a result of a general decline in community privacy standards, driven by the rise of social media in the early 21st century, as the defendant argues. In any event, a jury will render that determination.
49 Nor would I assess as regards the alternate imputation that par 7(f) as regards spying is duplicitous with a further imputation seen under par 7(g) towards Mr Barry Quigley being a 'pervert'. That 7(g) imputation presents from the words of the Post. But it is not independently attacked on this strikeout application. In my view, it is sufficiently distinct to the spying imputation raised under par 7(f) as regards Barry Quigley.
Matthew Quigley
50 The challenged imputations concerning Matthew Quigley are essentially identical to those raised by his father, as regards the four imputations attacked. The same evaluative results carry over, as regards my assessments of each challenge put against those imputations, under ASOC par 10(a), (b), (c) and the unnumbered par 10 subparagraph - that was formerly (c) and obviously should be renumbered.
Outcomes
51 Save then only in respect of a relatively minor need for an excision of the words of surplusage currently seen in par 7(c) and par 10(c) and a numbering correction as regards the coward imputation concerning Mr Matthew Quigley in par 10, all challenges against the imputations fail. The defendant's strikeout application is dismissed.
52 The application having been determined on the papers, the consequence is that such legal costs as have been incurred in relation to the resisting of the defendant's unsuccessful application and the plaintiffs' responses by written submissions, should be taxed costs to be borne by the defendant and which will be made payable forthwith, on the basis of the award to the plaintiffs of their costs to be taxed, if not agreed.
53 Orders in these terms will take effect upon the publication of these reasons.
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