Searle v West Australian Newspapers Holdings Ltd
[2004] WASC 11
SEARLE -v- WEST AUSTRALIAN NEWSPAPERS HOLDINGS LTD & ANOR [2004] WASC 11
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 11 | |
| Case No: | CIV:2635/2002 | 15 DECEMBER 2003 | |
| Coram: | MASTER NEWNES | 10/02/04 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Defence struck out in part | ||
| B | |||
| PDF Version |
| Parties: | ROBERT SEARLE WEST AUSTRALIAN NEWSPAPERS HOLDINGS LTD (ACN 008 667 632) MATTHEW JONES |
Catchwords: | Practice and procedure Defamation Application to strike out defence as embarrassing or disclosing no arguable cause of action Turns on own facts |
Legislation: | Rules of the Supreme Court, O 20 r 19 |
Case References: | Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Ad-West Neon Inc v High-Line Constructions Ltd [1992] 3 WWR 445 Bond v John Fairfax Publications Pty Ltd [2002] WASC 130 Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 Cock v Hughes [2002] WASC 108 Duke & Sons v Wisden & Co (1897) 77 LT 67 General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125 Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 International Financing and Investment Pty Ltd v Kent, unreported; SCt of WA; Library No 980187; 9 April 1998 Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209 Polly Peck (Holdings) v Trelford [1986] QB 1000 Popovic v Herald & Weekly Times Ltd [2002] VSC 174 Ratnam v Cumarasamy [1964] 3 All ER 933 Roberman v Australian Broadcasting Corporation [2002] WASC 301 Rowan v Cornwall (No 5) (2002) SASC 160 Shave v West Australian Newspapers Ltd [2003] WASC 83 STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; SCt of WA; Library No 980690; 17 September 1998 Theophanous v Herald & Weekly Times Ltd (Free Speech/Second Round Free Speech/Ruxton's Case) (1994) 182 CLR 104 Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69 Wootton v Sievier [1913] 3 KB 499 Zierenberg v Labouchere [1893] 2 QB 183 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS HOLDINGS LTD (ACN 008 667 632)
First Defendant
MATTHEW JONES
Second Defendant
Catchwords:
Practice and procedure - Defamation - Application to strike out defence as embarrassing or disclosing no arguable cause of action - Turns on own facts
Legislation:
Rules of the Supreme Court, O20 r 19
Result:
Defence struck out in part
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : Dr P R MacMillan
First Defendant : Mr W S Martin QC & Ms C Galati
Second Defendant : Mr W S Martin QC & Ms C Galati
Solicitors:
Plaintiff : Stephen Kemp
First Defendant : Edwards Wallace
Second Defendant : Edwards Wallace
Case(s) referred to in judgment(s):
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Case(s) also cited:
Ad-West Neon Inc v High-Line Constructions Ltd [1992] 3 WWR 445
Bond v John Fairfax Publications Pty Ltd [2002] WASC 130
Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210
Cock v Hughes [2002] WASC 108
Duke & Sons v Wisden & Co (1897) 77 LT 67
General Steel Industries Inc v Commissioner for Railways of New South Wales (1964) 112 CLR 125
Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440
International Financing and Investment Pty Ltd v Kent, unreported; SCt of WA; Library No 980187; 9 April 1998
Mickelberg v 6PR Southern Cross Radio Pty Ltd [2003] WASC 209
Polly Peck (Holdings) v Trelford [1986] QB 1000
Popovic v Herald & Weekly Times Ltd [2002] VSC 174
Ratnam v Cumarasamy [1964] 3 All ER 933
Roberman v Australian Broadcasting Corporation [2002] WASC 301
Rowan v Cornwall (No 5) (2002) SASC 160
Shave v West Australian Newspapers Ltd [2003] WASC 83
(Page 3)
STP (Gas) Retail Pty Ltd v Jubilee Road Pty Ltd, unreported; SCt of WA; Library No 980690; 17 September 1998
Theophanous v Herald & Weekly Times Ltd (Free Speech/Second Round Free Speech/Ruxton's Case) (1994) 182 CLR 104
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69
Wootton v Sievier [1913] 3 KB 499
Zierenberg v Labouchere [1893] 2 QB 183
(Page 4)
1 MASTER NEWNES: This is an application by the plaintiff to strike out certain paragraphs of the defence on the grounds that they disclose no reasonable defence, or alternatively may prejudice, embarrass or delay the fair trial of the action.
2 The plaintiff's application is out of time under O 20 r 19 of the Rules of the Supreme Court. The defence of the defendants was filed and served on 28 April 2003. The time within which any application to strike it out was required to be made expired on 19 May 2003. The plaintiff's solicitors first wrote to the defendants' solicitors on 16 June 2003 raising most, but not all, of the complaints which are the subject of this application. Having received no response, the defendants' solicitors wrote again on 8 July 2003, saying that the plaintiff intended to make an application to the Court to strike out the parts of the defence about which complaint had been made. At a case management conference on 1 August 2003, the defendants' solicitors said that the defendants were awaiting counsel's advice on the matter and would respond within a week. In fact, the defendants' solicitors responded by letter of 25 August 2003 rejecting the plaintiff's complaints. This application was filed on 3 September 2003.
3 I was told from the bar table by counsel for the plaintiff, without objection by the defendants' counsel, that the delay in first raising the alleged deficiencies in the defence was due to certain personal and work problems experienced by the plaintiff's solicitor around the time that the defence was served. The delay after June 2003 was obviously due to the failure by the defendants' solicitors to respond to the matters raised until 25 August 2003 and the plaintiff's solicitor's indulgence of that delay. I did not understand it to be contended by the defendants that the delay after 16 June 2003 is a relevant factor on this application.
4 The time limit in O 20 r 19 exists for good reason. The parties are required to resolve any issues relating to the pleadings promptly, so that the subsequent interlocutory steps in the litigation can proceed unimpeded by pleading disputes. That is of significance because the matters identified by the pleadings as being in issue between the parties will be relevant to subsequent interlocutory steps in the action and it is therefore essential that any disputes as to the pleadings be resolved at an early stage of the litigation.
5 The time limit can, of course, be extended if good reason exists. While time limits of this sort exist to facilitate the expeditious resolution of litigation, the ultimate objective of such time limits is not expedition
(Page 5)
- for its own sake, but to serve the interests of justice. In the end, the question, therefore, in each case must be how the interests of justice will best be served. In that connection, consideration must be given to the length of the delay and the reasons for it, and whether the substantive merits of the application warrant an extension of time. There is no suggestion in this case that the defendants would suffer any significant prejudice by reason of the delay in bringing the application.
6 The relevant delay was a period of some four weeks. An explanation, albeit in rather general terms, has been provided for the delay. Although the delay is not insignificant, it is not such that, particularly in the context of the delays on the defendants' side, would of itself cause an extension of time to be refused.
7 It is, therefore, necessary to have regard to the merits of the application to determine whether they warrant the time period being extended to enable the plaintiff to bring this application. In that connection, I might observe that, as this case illustrates, strike-out applications are necessarily productive of significant delay, and inevitably of expense, to the parties and should be reserved for those cases where real difficulty arises from a pleading or it is plainly untenable. While it is necessary that the pleadings clearly identify the matters in issue between the parties, a party should not be too ready to be embarrassed by the form of a pleading. Nor should a strike-out application be used where any difficulty could be, or could have been, adequately overcome by a request for further and better particulars. Moreover, where, as in this case, complaint is made by a party about the generality of the terms of particulars of a pleading, it is a relevant, although not decisive, consideration that nowadays in the ordinary course they will be served before trial with the witness statements of the other party. The question of whether a party will be sufficiently put on notice of their opponent's case to allow them a fair opportunity to meet it must be considered in that light.
8 The plaintiff's objections to the defence fall into two broad categories. The first relates to the adequacy or relevance of certain of the particulars of the defendants' plea of justification. The second relates to the question of whether the extended plea of qualified privilege, based on the principle enunciated in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520, discloses an arguable defence.
9 Turning to the first category of objections, the plaintiff sought to strike out 18 of the 52 particulars of justification relied on by the defendants. For the purposes of this application, the particulars under
(Page 6)
- attack were treated as comprising eight categories, based on the nature of the objection to them.
10 The first category involved pars 5.1, 5.5, 5.6 and 5.7 of the defence. Those particulars are in response to the imputation pleaded in par 4(a) of the statement of claim that "the plaintiff is a school bully". They are as follows:
"5.1 At all material times the plaintiff's manner of communication to members of staff was aggressive and confrontational.
…
5.5 The plaintiff excluded and ignored members of staff who did not agree with his opinions.
5.6 The plaintiff undermined staff by being rude to them in front of students.
5.7 The plaintiff quickly became unreasonable and domineering when dealing with members of staff without any justification or warning."
11 The plaintiff says that these paragraphs state conclusions and not facts, and are so vague as to be embarrassing. It was submitted that they are so general and vague in their terms that they are not susceptible of being made the subject of an adequate request for further and better particulars.
12 It is true that the particulars are generally expressed, but I do not consider that they are of such generality as to be embarrassing. Nor do I accept that, to the extent that further particularisation is required, they could not be, or could not have been, the subject of an adequate request for further and better particulars. I do not consider that this objection is made out.
13 The next complaint related to par 5.8 which, it was submitted, was repetitive of par 5.3 and therefore embarrassing. Those particulars, which are also in response to the imputation in par 4(a), are as follows:
" PLAINTIFF'S BEHAVIOUR GENERALLY
…
(Page 7)
- 5.3 At meetings and discussions regarding management issues the plaintiff spoke with a raised voice and gesticulated in an aggressive and threatening manner if his views were not acquiesced with.
PLAINTIFF'S BEHAVIOUR TOWARDS STAFF
…
5.8 The plaintiff when meeting with members of staff to discuss management issues regarding the Manning Primary School ('the School') would raise his voice, yell and become angry if he thought his opinions were being questioned."
14 The defendants propose to amend par 5.8 to delete the words "if he thought his opinions were being questioned". As to the objection, the defendants submitted that the particulars were different in their terms and referred to different instances.
15 It is, I think, important to have regard to the context of the particulars. Paragraph 5.3 is a particular of the plaintiff's alleged behaviour generally. Paragraph 5.8 is a particular of the plaintiff's alleged behaviour towards staff. Whilst there is overlap between the two paragraphs, I do not consider that, in that context, that poses real difficulties for the plaintiff. I would not strike them out.
16 The next complaint by the plaintiff related to pars 5.9, 5.10, 5.11 and 5.12. These complaints were raised for the first time in the plaintiff's outline of submissions of 4 December 2003. They are, therefore, seven months out of time.
17 These particulars are also in response the imputation in par 4(a) that the plaintiff "is a school bully". The particulars plead certain actions that the Union is alleged to have taken, and allege that three teachers lodged complaints about the plaintiff with the Department of Education.
18 The plaintiff submits that the particulars are irrelevant to the plea of justification because they are not related to any alleged conduct of the plaintiff.
19 It was submitted on behalf of the defendants that the particulars state the consequences of the plaintiff's bullying behaviour. Bullying involves intimidation and intimidation can be judged by its consequences. It was,
(Page 8)
- therefore, proper and appropriate to plead that consequence. It was also submitted that the objection by the plaintiff, if good, could be cured simply by the addition at the commencement of each paragraph of the words "the plaintiff's conduct was such that … ".
20 I accept that the alleged consequences of bullying behaviour are arguably relevant particulars of justification, but the difficulty with the particulars as they currently stand is that the consequences pleaded are not alleged to be related to the plaintiff's conduct. The matters alleged will only be relevant if they are related to the plaintiff's conduct. They will not be relevant if they came about for some other reason. Accordingly, as currently formulated, I consider the particulars raise false issues and should be struck out. The adequacy of any amended particulars is a matter to be determined when the amendments are sought to be made, but it may be that the proposed amendment mentioned in the course of argument would not sufficiently relate the consequences alleged to bullying behaviour on the part of the plaintiff.
21 The next complaint by the plaintiff related to pars 5.15, 5.16, 5.17 and 5.27. These particulars, which again respond to the imputation in par 4(a), allege certain conduct of some teachers and students which, it is alleged, came about because of their fear of the plaintiff.
22 The plaintiff contended that, in each case, the particulars were irrelevant because they simply set out the subjective reaction of the students and teachers to unspecified conduct on the part of the plaintiff.
23 The defendants submitted that the conduct of the teachers and students was a result of the psychological impact of the plaintiff's conduct and was directly relevant to the imputation of bullying behaviour by the plaintiff.
24 Once again, I accept that the alleged reaction of students and teachers is relevant, but only so long as it is said to be a consequence of the plaintiff's conduct. The fact that a person is in fear of another person does not of itself go to prove that the person feared has behaved in a way that induced the fear. The fear may be irrational or may have been induced by unjustified reports or rumours concerning that person or have come about in some other way unrelated to the feared person's actual conduct. If the alleged reaction of the students and teachers is to be relied upon, it must be related to conduct on the part of the plaintiff.
25 The defendants submitted that any problem with the plea could again be resolved by adding at the beginning of each particular the words " the
(Page 9)
- plaintiff's conduct was such that … ". Whether that would adequately relate the conduct alleged to bullying behaviour by the plaintiff may be open to question, but the adequacy of any amendment which may be made must await another day. For the present, I consider that these particulars should be struck out.
26 The next objection was to pars 5.34 and 5.35. Those are particulars of justification to the imputation in par 4(g) of the statement of claim that "the plaintiff's tirades disrupted the working day of some teachers in the School".
27 The particulars in question allege that the plaintiff's behaviour disrupted a teacher's working day and upset the teacher so much that the teacher felt compelled to attend the District Office of the Education Department to complain, and a relief teacher had to be called in to take the teacher's class for that day and the following day.
28 The plaintiff complains that the allegation that the plaintiff's behaviour disrupted the working day and upset the teacher is a conclusion and simply a statement of the subjective reaction of the teacher to unspecified conduct of the plaintiff. The fact that a relief teacher had to be called in does not relate to the plaintiff's behaviour and is therefore irrelevant and embarrassing.
29 The defendants submitted that the effect of the plaintiff's behaviour was directly relevant to the imputation pleaded and, to the extent that the plaintiff sought further particulars of the behaviour which it is alleged had had that effect, that was properly a matter for a request for further and better particulars.
30 I accept that the alleged consequences of the plaintiff's behaviour are relevant to the imputation pleaded. The question of the nature of the plaintiff's alleged disruptive behaviour which had those consequences is a matter properly to be dealt with by a request for further and better particulars. The allegation that a relief teacher had to be called in, whilst it may not be strictly necessary to the plea of justification, is not so embarrassing that I consider it should be struck out.
31 The next complaint was as to par 5.38, which is in response to the same imputation. It is alleged in par 5.38 that the plaintiff's regular verbal abuse of a teacher resulted in staff and parents providing ongoing support to the teacher so that she felt safe enough to continue undertaking her duties.
(Page 10)
32 The plaintiff complains that the plea is oppressive in its vagueness and generality. The plaintiff also says that the passage relating to the ongoing support provided to the teacher is irrelevant and goes simply to the teacher's subjective reaction, not the plaintiff's alleged misconduct. What is required is a statement of facts which can be objectively assessed to determine if the reaction was reasonable.
33 The defendants say that the consequences of the alleged behaviour are relevant to justification of the imputation and the plaintiff's complaint about the generality of the particular is a matter to be dealt with by way of a request for further and better particulars.
34 I consider the complaint that the reference to verbal abuse lacks specificity is a matter for further and better particulars and I would not strike it out on that basis. I accept that the consequences of the alleged abuse are sufficiently relevant to the imputation pleaded that they should not be struck out.
35 The last complaint in respect of the particulars of justification related to par 5.46. That particular goes to the imputation in subpar (h) of the statement of claim that "the plaintiff had conducted himself in an unprofessional manner".
36 It is alleged in par 5.46 that the plaintiff failed to take into consideration the wishes of the teaching staff and parents to maintain the library as a top priority and that he told the parents and staff that he would make his own decision, which he knew did not accord with their wishes.
37 The plaintiff says that the allegation of a failure to take into consideration the wishes of the teaching staff and parents goes to the plaintiff's subjective state of mind and not to his actual conduct. It is his conduct which must be pleaded. The second part of the particular, relating to what the plaintiff allegedly said, was not objected to.
38 The defendants submitted that a failure to take matters into consideration can constitute a material departure from appropriate professional standards and according the particular is not objectionable. I accept that submission. To the extent the plaintiff wished to ascertain the facts and matters relied upon for the allegation that the plaintiff did not take the wishes of parents and teachers into consideration, that could have been dealt with by way of a request for further and better particulars. I would not strike out par 5.46.
(Page 11)
39 In my view, the deficiencies in relation to pars 5.9, 5.10, 5.11, 5.12, 5.15, 5.16, 5.17 and 5.27 are matters of substance that, if left unresolved, are likely to be productive of unnecessary costs and difficulties at trial. I would therefore extend the time to bring this application in relation to those particulars and would strike them out.
40 The plaintiff also sought to strike out pars 6, 17 and 25 of the defence which plead the defence of qualified privilege based on Lange's case (supra). However, in his written outline of argument and his oral submissions, counsel for the plaintiff addressed only the first article complained of and did not seek to make any submissions in respect of the words complained of to which pars 17 and 25 of the defence relate.
41 The plaintiff contended that the words complained of in the first article are not capable of constituting a communication to the public on a government or political matter. Counsel for the plaintiff argued that the first article related to allegations concerning the personal conduct of the plaintiff, and that allegations of personal misconduct are not, in themselves, government or political matters.
42 The defendants submitted that the article dealt with the policies of the Department of Education and its activities in the investigation of formal complaints made to it. The article referred to comments attributed to the President of the State School Teachers' Union to the effect that complaints of bullying by teachers, administrators and principals were increasing and to a parent who had lodged three formal complaints in relation to the school, but had had to waitthree months for any indication that the Department was making inquiries. The article also referred to a central complaints management unit having been established in the Department of Education. The statements about the plaintiff were in the context of his conduct as a principal of a government school and related to the effectiveness of the handling of complaints by the Department of Education from parents and teachers about officers of the Department. The article therefore fell within the ambit of communications to the public on a government or political matter.
43 The metes and bounds of this defence of qualified privilege are still to be fully worked out and, except in a very clear case, are not appropriately to be dealt with on a pleading summons. In my view, the contention that the words complained of are communications on a government or political matter is not unarguable and the defence should not be struck out at this stage. Moreover, counsel for the plaintiff acknowledged that the defence of qualified privilege would not require
(Page 12)
- additional evidence to be adduced, but would simply be a matter of legal submissions at trial. In those circumstances, no prejudice or difficulty will be caused to the plaintiff by allowing the defence to go to trial and be determined finally then. Accordingly, I would not extend the time to bring the application to strike out this defence.
44 I will hear the parties on the precise form of orders and on costs.
3
15
0