Robinson v Quinlivan - [2006] WASC 38

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: ROBINSON -v- QUINLIVAN & ORS [2006] WASC 38

CORAM: MASTER NEWNES

HEARD: 30 JANUARY 2006

DELIVERED : 10 MARCH 2006

FILE NO/S: CIV 1406 of 2005

BETWEEN: LEE KERRYN ROBINSON
Plaintiff
AND
LYNETTE PATRICIA QUINLIVAN
First Defendant
WEST AUSTRALIAN NEWSPAPERS LIMITED (ACN 008 667 632)
Second Defendant
SEAN COWAN
Third Defendant

Catchwords:

Defamation - Application to amend statement of claim - Whether imputations capable of being conveyed by words complained of - Whether defamatory of plaintiff - Whether claim in slander maintainable - Turns on own facts

Legislation:

Nil

Result:

Application allowed in part

Category: B

Representation:

Counsel:

Plaintiff:     Mr S M Davies
First Defendant             :     Mr S J Lemonis
Second Defendant         :     Ms C Galati
Third Defendant           :     Ms C Galati

Solicitors:

Plaintiff:     Bennett & Co
First Defendant             :     Fairweather & Lemonis
Second Defendant         :     Edwards Wallace
Third Defendant           :     Edwards Wallace

Case(s) referred to in judgment(s):

Buckeridge v Walter [2006] WASCA 22
Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Favell v Queensland Newspapers Pty Ltd [2005] HCA 52
Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536
Lewis v Daily Telegraph Ltd [1964] AC 234
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Peters‑Brown v Regina District Hospital Board [1996] 1 WWR 337
Robinson v Quinlivan & Ors [2005] WASC 196
Ronald v Harper (1910) 11 CLR 63
Serdar v Metroland Printing Publishing and Distributing Ltd [2001] OTC 318
Simpson v Press Publishing (1900) 67 NYS 461
Taylor v Jecks (1993) 10 WAR 309
Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581

Case(s) also cited:

Gascoine v McGinty (1995) 14 WAR 542
Gumina v Williams (No 1) (1990) 3 WAR 342
Leslie v Mirror Newspapers Ltd (1971) 125 CLR 332
Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1

MASTER NEWNES: I have before me applications by each of the defendants to strike out the defamatory imputations pleaded by the plaintiff in respect of certain publications allegedly made by the defendants. The facts are set out in my earlier judgment in Robinson v Quinlivan & Ors [2005] WASC 196 but for convenience I will state the pertinent facts again.

The plaintiff's claim

The plaintiff pleads that he is and was at all material times the sole director of Cairns Pty Ltd and that he managed its business as a real estate agent. The first defendant is a legal practitioner, the second defendant is the publisher of The West Australian newspaper and the third defendant is a journalist employed by the second defendant.
The present action follows proceedings in the Federal Magistrates Court of Australia between Cairns Pty Ltd and a motor vehicle dealer, Fleetman Pty Ltd. In the proceedings, the Court held that Fleetman Pty Ltd had engaged in misleading and deceptive conduct in the course of selling a Saab motor vehicle to Cairns Pty Ltd. The first defendant acted as the solicitor for Fleetman Pty Ltd.
In this action the plaintiff alleges that, on or about 19 October 2004, the first defendant spoke to the third defendant the following words:
"Fleetman would appeal the decision on legal grounds. It would also appeal against the Magistrate's findings about the credibility of the director of Cairns. We believe that we have an extremely strong case."
It is alleged that in the issue of The West Australian of 20 October 2004 the second and third defendants published an article, together with a colour photograph of the plaintiff, containing the following words:
"Wheels come off luxury car deal
Prestige car dealer Henley Saab has been ordered to pay almost $10,000 to a real estate agent after a magistrate found the dealership had engaged in misleading and deceptive conduct when it sold him a luxury car.
Realty Executives Perth owner Lee Robinson claimed Fleetman Pty Ltd, the company behind Henley, had sold his company, Cairns Pty Ltd, a 2000 model Saab 9‑5 Griffin for almost $90,000. He had expected to get a 2001 model.
Mr Robinson told Federal Court Magistrate Murray McInnis, that he had bought the car after a discussion with Henley Saab sales manager Gareth Hughes in October 2001.
'I told Mr Hughes that I was not happy with the first vehicle because of the problems I was experiencing with it and that I would take my business elsewhere and buy a different brand of vehicle,' Mr Robinson said. 'He said to me words to the effect that he could "put me into" a new black Saab 9‑5 Griffin V6 which was a demonstration model.'
'He said to me that the owner of the dealership, Brian Gardner, had been using this vehicle since March 2001 as his personal transport.'
He said he had assumed it was a 2001 model, but a few months later a Mercedes dealer who was trying to sell Mr Robinson a car for his wife discovered it was a 2000 model.
Mr McInnis found that Mr Robinson would not have bought the car if he had been told it was a 2000 model, and the company had breached the Trades Practices Act by not informing him.
Fleetman's lawyer, Lynette Quinlivan, said her client would appeal against the decision on legal grounds. It would also appeal against the magistrate's findings about the credibility of Mr Robinson.
'We believe that we have an extremely strong case,' she said. But Mr Robinson vowed to continue fighting, revealing he had already spent $20,000 in legal fees and was prepared to spend $200,000.
'With the sort of character I am, if I believe I have been duded I will keep going and if they win their appeal I will go to the High Court even though it's Brian Gardner,' he said.
Photo caption
Driving dispute: Lee Robinson with his 2000 model Saab 95 Griffin. He thought he had a 2001 model."
It is further alleged that the first defendant is liable for the publication in the newspaper of the statement attributed to her.
In my decision of 2 September 2005 I ordered that the original imputation be struck out, with leave to replead. The plaintiff subsequently pleaded fresh imputations pursuant to that leave. The plaintiff now seeks to plead further amended imputations. In respect of each of the alleged publications the proposed imputations are as follows:
"11.The … matter complained of meant and was understood to mean that:
(a)the plaintiff had given evidence at the trial of the case between Cairns Pty Ltd and Fleetman Pty Ltd that should not be believed.
(b)Further or alternatively to (a), the plaintiff was not a credible witness at the trial of the case between Cairns Pty Ltd and Fleetman Pty Ltd.
(c)The plaintiff was so unreliable in the provision of evidence to a Court that his evidence should not be believed.
(d)Further or alternatively to (c), the plaintiff was such an unreliable witness at the trial of the case between Cairns Pty Ltd and Fleetman Pty Ltd that his evidence should not be believed."

The defendants' submissions

Each of the defendants contended that the imputations should be struck out as disclosing no reasonable cause of action or as embarrassing. They relied essentially on three grounds. Those grounds were first, that the imputations were not reasonably capable of arising from the matter complained of; secondly, that the defamatory meaning was embarrassing in that it was not the final distillation of the defamatory meaning; and thirdly, that the imputations were an impermissible attempt to plead an imputation of dishonesty, such an imputation in express terms having been previously struck out. It also emerged in the course of argument that the complaint that the meanings pleaded were not the final distillation of the defamatory sting encompassed a submission that the meanings pleaded were not of themselves defamatory of the plaintiff.
It was submitted on behalf of the first defendant that the imputation in par 11(a), that the plaintiff's evidence should not be believed, was simply another way of saying that the plaintiff had not told the truth. On the other hand, it was submitted, the imputation in par 11(b), as presently framed, was not directed to the plaintiff's integrity but simply meant that his evidence should not be accepted as correct in preference to the contrary evidence of other witnesses. It did not therefore distil any defamatory meaning. It was not defamatory simply to say of a person that he was not a credible witness. A person may not be a credible witness for a variety of reasons that did not reflect on his character. Such an imputation would only be capable of being defamatory if it attributed as the reason the plaintiff was not a credible witness something derogatory of him, such as dishonesty.
The second and third defendants, on the other hand, argued that the first and second imputations were not different in substance but simply different ways of saying the same thing. They were therefore embarrassing. It was also submitted that in each case the imputation was too vague and did not represent the final distillation of any defamatory meaning. Again, it was argued that an imputation that the plaintiff was not a credible witness would only be defamatory if it went further and asserted, for instance, that that was because he was not truthful.
Counsel for the second and third defendants also argued that the imputations were not capable of being conveyed by the article. It was submitted that when the article was read as a whole the statement as to the plaintiff's credibility was simply an expression of the belief of the first defendant's lawyer that the plaintiff's evidence should not have been accepted and it was not capable of conveying to a reasonable reader the meaning that the plaintiff's evidence should not in fact be believed.
The second and third defendants also objected to the imputations in par 11(c) and (d) on the grounds first, that they were not capable of being conveyed by the words complained of and secondly, that they were not defamatory of the plaintiff, it not being said that the plaintiff was an unreliable witness for reasons that reflected adversely on him. It was further submitted that the imputations were not sufficiently distinct but, again, simply different ways of saying the same thing. Counsel also submitted that the expression "was so unreliable" in par 11(c) was so vague as to be embarrassing.
It was further submitted on behalf of the first defendant that, on the basis of the imputations pleaded, the claim in slander was not actionable per se, or at least that it was embarrassing because it was not possible from the pleading to determine whether or not it was actionable per se.

The plaintiff's submissions

It was argued on behalf of the plaintiff that it was not necessary to formulate an imputation at any greater level of abstraction than the words of the matter complained of. The statement in the matter complained of was to the effect that the plaintiff was not a credible witness and the plaintiff's evidence should not be believed. It was not necessary, as had been argued on behalf of the defendants, to go on to specify the ground on which the plaintiff's evidence should not be believed or the plaintiff was not a credible witness.
It was submitted that it was, of itself, defamatory to say of a person that the evidence they had given in court should not be believed or that the person was not a credible witness. Such an imputation is clearly likely to lower a person in the estimation of others and, in relation to a person in trade or business, to damage him or her in that trade or business. In the present case the plaintiff was the manager of a real estate agency.
It appeared in the course of argument that the imputation in par 11(d) was in fact in addition, or in the alternative, to par 11(a) and (b), rather than par 11(c), in that it was intended to mean that the plaintiff was such an unreliable witness at the trial that his evidence at the trial should not be believed. The imputation in par 11(c), on the other hand, was intended to mean that the plaintiff was so unreliable in giving evidence that his evidence in any future cases should not be believed.

Is the statement of claim defective?

The relevant principles to be applied on an application of this sort are well established and it is not necessary to repeat them. They are set out in my earlier decision and have more recently been referred to by the High Court in Favell v Queensland Newspapers Pty Ltd [2005] HCA 52 per Gleeson CJ, McHugh, Gummow and Heydon JJ at [9] – [11]. In that case their Honours (at [11]), said it was important for judges to bear in mind that ordinary readers draw implications from a text much more freely than a lawyer, especially when the implications are derogatory.
In Buckeridge v Walter [2006] WASCA 22, the Court of Appeal of this Court discussed the basis upon which an imputation will be struck out. The Court of Appeal said:
"It is also settled that an imputation will be struck out only if it is plainly incapable of being conveyed by the words complained of or, to use the words of Hunt J in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675, if the imputation is 'so clearly untenable that it cannot possibly succeed': Taylor v Jecks (1993) 10 WAR 309 at 313. In Favell, Gleeson CJ, McHugh, Gummow and Heydon JJ, at 1719 [6], approved the following extract from the judgment of McPherson JA in the Queensland Court of Appeal:
'Whether or not [the pleading] ought to and will be struck out [as disclosing no cause of action] is ultimately a matter for the discretion of the judge who hears the application. Such a step is not to be undertaken lightly but only, it has been said, with great caution. In the end, however, it depends on the degree of assurance with which the requisite conclusion is or can be arrived at. The fact that reasonable minds may possibly differ about whether or not the material is capable of a defamatory meaning is a strong, perhaps an insuperable, reason for not exercising the discretion to strike out. But once the conclusion is firmly reached, there is no justification for delaying or avoiding that step [at] whatever stage it falls to be taken.' "
In that case, Steytler P went on to say (at [4]):
"I should add … my respectful endorsement of the comments made by Kirby J in Favell at 1722 to the effect that courts should discourage, or minimise, the impediment to a fair trial presented by the process of 'trial by interlocutory ordeal', which is especially prevalent in defamation proceedings."
To the same effect, see also Pullin JA at [22].
I do not accept the submission on behalf of the second and third defendants that the words complained of are not capable of conveying to a reasonable reader the meaning that the plaintiff was not a credible witness or his evidence should not be believed. In my view, it is clearly arguable that such a reader would understand the words complained of to bear such a meaning.
The next issue is whether the imputations pleaded are embarrassing as being vague and not being the final distillation of any defamatory meanings.
The fact that the terms of an imputation are drawn from the words complained of is not of itself necessarily enough to establish that the pleaded imputation is beyond attack. It is the meaning alleged by the plaintiff to have been conveyed by the words, rather than the words themselves, which it is important to have precisely defined in the imputation: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 678. What, therefore, must be clear from the pleading is what meaning the plaintiff contends was conveyed to a reasonable reader by the words complained of. That is, an imputation must specify what the plaintiff claims was "the precise act or condition asserted of, or attributed to" the plaintiff: Monte v Mirror Newspapers Ltd (supra) and Taylor v Jecks (1993) 10 WAR 309 at 319.
But as Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, [at 137], the requirement that a plaintiff must "specify" the act or condition which he claims was attributed to him is one which, in its practical application, raises questions of degree. Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity. If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. His Honour continued:
"Furthermore, whilst the principles relevant to the plaintiff's obligation [to 'specify' the act or condition which he claims was attributed to him] remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter. Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes. The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non‑specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances. If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter. A good example of the point just made is to be found in the decision of this Court in John Fairfax & Sons Ltd v Foord. Various imputations referring to particular kinds of corrupt conduct by a judge were held to have been proper imputations to leave to a jury. There was, however, also an imputation which simply asserted that the plaintiff was a corrupt judge. That imputation was said to have arisen from a newspaper billboard which read: 'Govt's war on corrupt judges.'
It was held that, in those circumstances, that also was a proper imputation to leave to the jury. Clarke JA, with whom Hope JA agreed, said (at 726):
'If the complaint is that the imputation as pleaded lacks clarity because the word "corrupt" is ambiguous then that deficiency flows naturally from the material published. …' "
Having regard to the words complained of, I do not consider that the imputations fail adequately to specify the defamatory meaning alleged. It was common ground that, for present purposes, the critical part of the words complained of was the following passage:
"Fleetman's lawyer, Lynette Quinlivan, said her client would appeal against the decision on legal grounds. It would also appeal against the magistrate's findings about the credibility of Mr Robinson.
'We believe that we have an extremely strong case', she said."
In the light of that, I do not consider it is necessary for the plaintiff to plead the imputations with a greater degree of specificity. In fact, for reasons I will come to, it seems to me that the imputations in par 11(a), (b), and (c) are all substantially to the same effect.
The question that remains is whether it is defamatory to say of a person that they were not a credible witness or that the evidence they gave should not be believed.
Generally speaking, an imputation is defamatory of a person if it would tend to lower the person in the estimation of right‑thinking members of society generally or would be likely to affect a person adversely in the estimation of reasonable people generally. But it is not necessary that the imputation reflects adversely on the person's integrity or imputes to them some wrongdoing. Words that tend to diminish the confidence of people in a person or cause them to avoid the person may be defamatory of the person. Thus it may be defamatory to say of someone that they are insane: Youssoupoff v Metro-Goldwyn-Mayer (1934) 50 TLR 581 at 587; or that they suffer from a disease that ordinary people believe to be infectious: Simpson v Press Publishing (1900) 67 NYS 461, Serdar v Metroland Printing Publishing and Distributing Ltd [2001] OTC 318 Ont Sup CJ; Peters‑Brown v Regina District Hospital Board [1996] 1 WWR 337. It has been held to be defamatory to say of a woman that she has been raped, although it involves no moral turpitude on her part: Youssoupoff v Metro-Goldwyn-Mayer (supra) at 584, 586, 587; Krahe v TCN Channel Nine Pty Ltd (1986) 4 NSWLR 536 at 546.

It is also well established that it is defamatory to say of a person that they are incompetent at their trade or profession. Similarly, it is defamatory to say that a person is insolvent or cannot pay their debts, even if that is not attributed to any fault on their part.
What is defamatory is to be judged by the standard of the ordinary reasonable person, a standard that in many respects is inherently indeterminate and, moreover, is subject to changes in community attitudes over time. It is trite that what might be regarded as defamatory in one era would not be so regarded in another. Whether or not something is defamatory is therefore by no means always capable of ready or certain determination and findings in earlier cases must be approached with considerable care. It is pre‑eminently a question of fact for trial. Accordingly, the issue on an interlocutory application of whether an imputation is capable of being defamatory of the plaintiff is to be approached with particular caution and an imputation is to be struck only in a clear case. The Court should be slow to pre‑empt the task of the tribunal of fact at trial.
It is the case, as submitted by counsel for the defendants, that the evidence of a person may not be believed, and a person may not be regarded as a credible witness, for reasons that do not reflect adversely on the person's integrity. For instance, a person's evidence may not be believed because, for one reason or another, the person is honestly mistaken in their recollection of events or because, due to some infirmity, their recollection of events cannot be relied upon.
In my view, however, an imputation that the plaintiff had given evidence on oath that should not be believed, or that the plaintiff was not a credible witness, is arguably capable of being defamatory of him. I do not accept that such an imputation would only be capable of being defamatory if it went further and ascribed as the reason the evidence should not be believed, or that the plaintiff was not a credible witness, something which reflected on the plaintiff's integrity. I consider it is arguable that the tribunal of fact would find that an imputation that the plaintiff's evidence should not be believed, or that he was not a credible witness, would tend to lower the plaintiff in the estimation of reasonable members of the community.
I consider there is, however, a difficulty with the imputations in par 11(a), (b) and (d) in that they are not sufficiently distinct. It is well established that distinct imputations should be pleaded and not fine nuances or shades of the same meaning. The test for distinctiveness is whether the evidence required to justify each meaning would be substantially different: Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 543; Lewis v Daily Telegraph Ltd [1964] AC 234 at 282. Counsel for the plaintiff submitted that the imputation in par 11(a) was not inconsistent with my earlier decision because it did not assert that the plaintiff had been dishonest in his evidence, but simply that his evidence should not be believed. He did not, however, elaborate on what, if any, real distinction was to be drawn in this case between saying that a person's evidence should not be believed, that the person was not a credible witness and that a person's evidence was so unreliable that it should not be believed. All appear to be different ways of saying essentially the same thing.
The third imputation, in par 11(c), is to rather a different effect to the other imputations. It is, in my view, unclear what it is intended to mean and for that reason it is embarrassing. But as the matter was ultimately put in argument by counsel for the plaintiff, the import of the imputation is that the plaintiff was so unreliable in the provision of his evidence to a court that his evidence in any future court case should not be believed.
I do not consider that the words complained of are capable of conveying an imputation of such a broad nature. A reasonable reader would not conclude from the fact that on one occasion a person had been found not to be a credible witness that, in any future case (of whatever nature) in which he may give evidence, his evidence should not be believed. I would therefore refuse leave to amend in terms of the third imputation.
That leaves the question of whether the claim against the first defendant in slander for the words allegedly spoken by her on 19 October 2004 is maintainable, no special damages being claimed by the plaintiff. It was submitted on behalf of the plaintiff that the words were calculated to disparage the plaintiff in his profession or business as a company director and the manager of a real estate agency. It was submitted that to say of such a person that their evidence at a trial should not be believed, or that the person was not a credible witness, reflected on them in those capacities.
It is clear that to be actionable the words complained of must not only be calculated to harm the plaintiff in his occupation, but must also have been spoken of him in relation to such occupation: Ronald v Harper (1910) 11 CLR 63. Whether or not words were spoken of the plaintiff in relation to his occupation is a question of fact: Ronald v Harper (supra) at 73. The question on this application is whether it is arguable that the words complained of were spoken of the plaintiff in relation to his occupation and calculated to harm the plaintiff in that occupation. In circumstances where the words complained of referred to the plaintiff in his capacity as a company director I consider that those matters are arguable and I would therefore decline to strike out the claim in slander at this stage.
As I have found that three of the imputations are repetitious and the fourth is untenable, I would refuse leave to amend the statement of claim in terms of the minute but would grant leave to the plaintiff to replead.
I will hear the parties on the precise form of the orders and on costs.