Roberts-Smith v Crawshaw
[2014] WASC 12
•20 JANUARY 2014
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: ROBERTS-SMITH -v- CRAWSHAW [2014] WASC 12
CORAM: EDELMAN J
HEARD: 20 JANUARY 2014
DELIVERED : 20 JANUARY 2014
FILE NO/S: CIV 2007 of 2013
BETWEEN: SUSAN ROBERTS-SMITH
Plaintiff
AND
MICHAEL CRAWSHAW
Defendant
Catchwords:
Practice and procedure - Strike out application - Defamation claim - Spousal privilege - Failure to confer
Legislation:
Nil
Result:
Application dismissed
Category: B
Representation:
Counsel:
Plaintiff: Mr C Chenu
Defendant: In person
Solicitors:
Plaintiff: Bennett & Co
Defendant: In person
Cases referred to in judgment:
Cattanach v Melchior (2003) 215 CLR 1
Markisic v Middletons Lawyers [2005] NSWSC 258
Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104
Wennhak v Morgan (1880) 20 QBD 635
Williamson v London & North Western Railway Company (1879) 12 Ch 787
Text cited:
American Law Institute Restatement (2d) Torts
A Mullis and R Parkes Gatley on Libel and Slander (12th ed, 2013)
C Kendall and J Curthoys (eds) Civil Procedure in Western Australia
EDELMAN J:
Introduction
Mrs Roberts‑Smith and Mr Crawshaw were both employed by the Swan Valley Anglican Community School.[1] At one time, Mr Crawshaw had been Acting Principal of the school.[2] It appears that tension arose between them.
[1] Statement of Claim [1.1], [2.1]; Re-amended Defence [1(1)], [2(1)].
[2] Statement of Claim [2.1]; Re-amended Defence [2(1)].
On 26 June 2013, Mrs Roberts‑Smith brought a claim against Mr Crawshaw for defamation. The essence of Mrs Roberts‑Smith's case is that Mr Crawshaw defamed her by publishing five statements to Oey Ban Im ('Wanny') Crawshaw. For simplicity I will refer to the recipient as Mrs Crawshaw. It is common ground that Mrs Crawshaw was Mr Crawshaw's spouse at the relevant times. The statements were:
(1)A text message on 27 June 2012;
(2)An email on 27 July 2012;
(3)A text message on 18 September 2012;
(4)A text message on 22 November 2012; and
(5)A text message on 3 January 2013.
Mr Crawshaw admits sending each of these texts and emails.
On 30 July 2013, Mr Crawshaw, acting in person, filed a defence. On 20 August 2013, Mr Crawshaw amended his defence. On 16 September 2013, counsel for Mrs Roberts‑Smith filed submissions in support of an application to strike out the amended defence. On 29 September 2013, in response, Mr Crawshaw filed a re‑amended defence (entitled by him as 'amended defence'). It is unfortunate that no conferral occurred in relation to any of Mrs Roberts‑Smith's objections to the re‑amended defence. Instead, counsel for Mrs Roberts‑Smith simply filed reply submissions on 17 October 2013 directed at the inadequacies of the re‑amended defence.
In the course of oral submissions this morning counsel for Mrs Roberts‑Smith accepted that he was unable to offer any substantial answer to one of the defences pleaded by Mr Crawshaw, namely a defence of spousal privilege. He sought an adjournment of the strike‑out application in order to permit Mrs Roberts‑Smith to amend her writ and statement of claim and to allow conferral upon any objections to a consequentially amended defence filed by Mr Crawshaw.
I declined to adjourn the application. I ordered that it be dismissed. As I explain below, I do not adjudicate upon the merits of any point other than the pleading of spousal privilege which counsel conceded in oral submissions should not be struck out. But this application must be dismissed in circumstances in which (1) proper conferral did not occur and (2) the application would not have been brought in relation to the current defence if counsel for Mrs Roberts‑Smith had appreciated the legal point of spousal privilege plainly raised by Mr Crawshaw.
The pleaded defences of spousal privilege
Defences of spousal privilege are pleaded in pars 4(iv), 5(iv), 6(iv), 7(iv) and 8(iv) of Mr Crawshaw's re-amended defence. In each case the pleading is identical. Mr Crawshaw says:
The Defendant denies that the statement was defamatory. The recipient is the defendant's spouse. No other person was sent the text. Under common law, a statement is not deemed to be published (for the purposes of defamation) if sent to the defendant's spouse. Consequently, defamation has not occurred.
In written submissions, counsel for Mrs Roberts‑Smith said that this is a pleading of a conclusion of law 'which has no place in a pleading and should be removed'.[3] In support of this proposition counsel relied exclusively upon obiter dicta in a first instance decision in England in 1879.[4] Times, and pleadings, have moved on in the last 135 years in both England and Australia. Order 20 r 12 of the Rules of the Supreme Court 1971 (WA) permits a party by his pleading to raise any point of law. In Civil Procedure in Western Australia, after referring to the 1879 decision upon which counsel relied, the following comment is made:[5]
Nevertheless, it has been common practice in this state to plead a conclusion of law if the material facts supporting it are pleaded, and it does not follow that the court will exercise its discretion to strike out a plea of a conclusion unsupported by material facts if the case is better managed by trial on a list of issues.
[3] Plaintiff's written submissions, 17 October 2013 [9].
[4] Williamson v London & North Western Railway Company (1879) 12 Ch 787, 793.
[5] C Kendall and J Curthoys (eds) Civil Procedure in Western Australia [20.8.4].
This common practice is justified. If the pleading of a conclusion of law explains and clarifies the nature of the defence to the reader then it can sometimes assist in the ultimate purpose of the pleading: clear and precise communication of the party's case.
The paragraphs which plead spousal privilege clearly communicate the nature of the defence even if the legal characterisation of the defence as one of 'no publication', rather than as an occasion of privilege, might arguably be incorrect.
Mr Chenu, who did not author the written submissions but who made oral submissions this morning, properly conceded that the paragraphs which plead spousal privilege should not be struck out. This is a proper concession.
The defence upon which Mr Crawshaw relies was recognised in Wennhak v Morgan.[6] At the opening of the trial before Mathew J and a jury, the trial judge held that the claim failed because there was no publication, concluding that a man does not publish material by communication of it to his wife. The case came before Huddleston B and Manisty J in Queen's Bench on a motion for a new trial.
[6] Wennhak v Morgan (1880) 20 QBD 635.
Huddleston B observed that this was the first time that it had been alleged that 'the handing over of a libel by the libeller to his wife is a publication'.[7] He upheld the decision of the trial judge on the principle that 'husband and wife are one'.[8]
[7] Wennhak v Morgan (1880) 20 QBD 635, 637.
[8] Wennhak v Morgan (1880) 20 QBD 635, 637.
Manisty J also decided the case on the basis of the unity in law of husband and wife. But, perhaps in light of counsel's submissions in that case that the 'identity of husband and wife' had been destroyed by the Married Women's Property Act 1882 (45 & 46 Vict c 75),[9] his Lordship went further to ask 'what is the real foundation' of the principle that denies that a defamatory publication occurs when the material is communicated to a spouse?[10] Manisty J explained that it was based upon the policy of the law respecting family relationships, saying the following: '[W]ould it be well for us to lay down now that any defamation communicated by a husband to a wife was actionable? To do so might lead to results disastrous to social life.'[11]
[9] Wennhak v Morgan (1880) 20 QBD 635, 636.
[10] Wennhak v Morgan (1880) 20 QBD 635, 639.
[11] Wennhak v Morgan (1880) 20 QBD 635, 639.
Although the legal fiction of unity of husband and wife no longer exists, this does not necessarily mean that the defence has disappeared. More than a century later the editors of Gatley on Libel and Slander today suggest that 'there is something dubious in the idea that a person could be sued for defamation in respect of communications to his spouse ... it is thought that on the basis of the need to preserve privacy and confidentiality within the family it is still valid'.[12]
[12] A Mullis and R Parkes Gatley on Libel and Slander (12th ed, 2013) 207 [6.14].
In Cattanach v Melchior,[13] McHugh and Gummow JJ also cited, with approval, the remarks of Manisty J concerning legal policy of family relationships describing the spousal privilege as 'the common law rule that there is no publication for the purposes of the law of defamation when one spouse transmits defamatory matter to the other spouse.'
[13] Cattanach v Melchior (2003) 215 CLR 1, 30 [63].
The defence of spousal privilege was also recognised in Theophanous v Herald & Weekly Times Ltd,[14] where Deane J spoke of the circumstances in which the defence of absolute privilege applies saying that
The defence of absolute privilege applies, when available, to all (or in some cases all relevant) statements made on the occasion of absolute privilege regardless of their truth or falsity or the motive which inspired the making of them. However, putting to one side special and exceptional circumstances such as statements made in judicial or certain quasi-judicial proceedings or between spouses, the defence of absolute privilege is unavailable to the ordinary citizen who makes a defamatory statement in the course of ordinary political communication or discussion.
[14] Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104, 175.
The defence was also applied in Markisic v Middletons Lawyers.[15] In that case, one of the reasons given by Nicholas J for finding that the publication by the fourth defendant to his wife was not actionable was the absolute privilege that attaches to spousal communications.[16]
[15] Markisic v Middletons Lawyers [2005] NSWSC 258.
[16] Markisic v Middletons Lawyers [2005] NSWSC 258 [36].
The defence is also recognised in the American Law Institute's Restatement (2d) Torts at §592 where it is said that 'a husband or a wife is absolutely privileged to publish to the other spouse defamatory matter concerning a third person'. The Reporter explains that
the confidential character of the relationship of husband and wife is the basis for the privilege stated ... Communications between spouses are so completely protected that under no circumstances can they be made the basis of an action for defamation. This is true although the matter communicated is known to be false and the purpose of the communication is altogether improper.
The defence as recognised in Wenhak was not strictly a privilege. Instead, that case held that a defendant can deny that any publication occurs when defamatory matter is communicated to the defendant's spouse. But it may be that with the demise of the legal fiction of unity of husband and wife, the defence might now be considered as a privilege rather than an absence of publication. It is not necessary for me to consider this point further. Mr Chenu conceded for the purposes of the strike out application that, however described, such a defence exists.
Mr Chenu raised the possibility of an argument that spousal privilege should be confined to married couples who have not separated. He accepted that there was no authority which suggested that the privilege should be so confined. If it were to be so confined, issues may arise concerning the boundary of such an exception. How should the law treat the privilege in relation to married couples who have separated but are in the process of reconciliation? Or what about married couples who have separated but might still reconcile? Would a court be required to consider the state of the marriage to determine whether the breakdown was irretrievable? If so, how should the law treat married couples whose marriage has irretrievably failed but who are not divorced and who maintain extremely close contact and a relationship of great trust and confidence especially involving children?
It is neither necessary nor appropriate on this application for me to reach any conclusion concerning the existence, scope or boundary of this defence of spousal communication. It suffices to say that pars 4(iv), 5(iv), 6(iv), 7(iv) and 8(iv) of the re‑amended defence set out an arguable defence based upon the identity of the recipient of Mr Crawshaw's statements being his wife.
Conclusion
The concession by Mr Chenu that the pleading of spousal privilege should not be struck out was properly made. As Mr Chenu also accepted, now that the significance of the spousal privilege is appreciated the strike out application might have been premature.
The strike out application would be premature if, in light of the spousal privilege defence, Mrs Roberts‑Smith decides not to continue with her claim or if she amends her writ and statement of claim to allege a wholly new cause of action. The possibility of a new cause of action was raised by Mr Chenu who said that he would take instructions concerning an application to amend Mrs Roberts‑Smith's writ and statement of claim to plead a new cause of action based on re‑publication by Mrs Crawshaw. Mr Chenu's assumption is that such re‑publication, if it occurred, could be actionable against Mr Crawshaw if Mr Crawshaw requested the manner or scope of the republication. Mr Chenu relied upon a passage from Gatley on Libel and Slander, which in its current edition reads as follows (footnotes omitted):[17]
If D [Defendant], without malice, makes a statement to X on a privileged occasion and X repeats the statement to Y, again on a privileged occasion, D has a defence in respect of both the original publication and the republication. The same is true where X is actuated by malice and therefore loses the protection of the privilege, for it is necessary to consider the state of mind of each defendant separately. If X is unprotected because he repeats the statement on an occasion which is not privileged ... D should still be protected unless he requested the manner or scope of the publication by X.
[17] A Mullis and R Parkes Gatley on Libel and Slander (12th ed, 2013) 262 [6.58].
For these reasons, I made orders including dismissing the application to strike out Mr Crawshaw's re‑amended defence. In summary this was due to (1) the concession by Mr Chenu, which I accept, that the defence of spousal privilege is properly pleaded, (2) the effect of that defence raising the possibility, which existed prior to the strike out application, of a wholly new cause of action and, consequently, a new defence, and (3) the absence of conferral with Mr Crawshaw, a litigant in person, concerning his re‑amended defence.
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