Shave v West Australian Newspapers Ltd - [2003] WASC 83

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: SHAVE -v- WEST AUSTRALIAN NEWSPAPERS LTD [2003] WASC 83

CORAM: HASLUCK J

HEARD: 10 APRIL 2003

DELIVERED : 5 MAY 2003

FILE NO/S: CIV 2104 of 2000

BETWEEN: DOUGLAS JAMES SHAVE
Plaintiff
AND
WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)
Defendant

Catchwords:

Defamation - Practice and procedure - Lange defence of qualified privilege - Application to strike out matters said to be not covered by the privilege - Effect of delay in bringing the application to strike out - Defence plea of bad reputation - Application of rule that evidence of bad reputation must be confined to the relevant sector of the plaintiff's reputation - Turns on own facts

Legislation:

Rules of the Supreme Court 1971, O 20 r 19

Result:

Application to extend time dismissed
Application to strike out dismissed
Application to amend dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr N W McKerracher QC & Ms L L Maher
Defendant: Mr W S Martin QC & Ms C Galati

Solicitors:

Plaintiff: Williams & Hughes
Defendant: Edwards Wallace

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

Adam v Ward [1917] AC 309
Australian Broadcasting Corporation v McBride (2001) 53 NSWLR 430
Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210
Cock v Hughes [2002] WASC 108
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union of Australia (WA Branch) (1995) 14 WAR 360
Moir v Flint & Anor [2002] WASC 48
O'Hagan v Nationwide News Pty Ltd (2001) 53 NSWLR 89
Popovic v Herald and Weekly Times Ltd [2002] VSC 174
Rasile v Collie Mail Distributions Newspapers Ltd, unreported; SCt of WA; Library No 930200; 16 April 1993
Ratnam v Cumarasamy [1964] 3 All ER 933
Roberman v Australian Broadcasting Corporation [2002] WASC 301
Smith's Newspapers Ltd v Becker (1932) 47 CLR 279
State of Queensland v J L Holdings Pty Ltd (1997) 189 CLR 146
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
Theophanous v The Herald and Weekly Times Ltd (1994) 182 CLR 104
Vickers v Mayne, unreported; SCt of WA; Library No 980391; 17 July 1998

Case(s) also cited:

Plato Films Ltd v Speidel [1961] AC 1090
Turner v Bulletin Newspaper Co Pty Ltd (1974) 131 CLR 69

HASLUCK J: The plaintiff, Douglas James Shave, has advanced a claim in defamation against the defendant, West Australian Newspapers Ltd. The action was commenced by writ of summons issued on 16 August 2000. Since then the pleadings have been amended on various occasions and other interlocutory steps have been taken including the provision of discovery. On 3 September 2002 the plaintiff was ordered by a Registrar of the Supreme Court to enter the action for trial by 1 October 2002.
The action has not been entered for trial in compliance with the Registrar's order for reasons which I will turn to later. In the meantime, the plaintiff has applied to strike out portions of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2003] WASC 83
Decision Date: 5 MAY 2003

CaseChat Overview and Summary

In the case of Shave v West Australian Newspapers Limited, the plaintiff sought to establish that the defendant had defamed him in articles published in The West Australian and The Sunday Times. The dispute centred on whether the defendant's publication of certain articles was protected by the defence of qualified privilege under the Lange v Australian Broadcasting Corporation criteria. Specifically, the plaintiff challenged the defendant's reliance on this defence, arguing that the articles in question did not pertain to political or governmental matters, and therefore did not qualify for the protection afforded by the Lange defence.

The legal issues before the court involved the interpretation and application of the Lange defence of qualified privilege, specifically whether the defendant's publications fell within the extended categories of political discussion recognised by the High Court. Additionally, the court had to determine whether the defendant's conduct in publishing the articles was reasonable, as required by Lange, and whether the plaintiff's reputation, particularly in relation to a specific sector, was such that it could be considered in the context of the defence. The court also examined the implications of any delay in bringing an application to strike out matters not covered by the privilege and the admissibility of evidence concerning the plaintiff's bad reputation within the relevant sector of his reputation.

The court held that the defence of qualified privilege under Lange must be narrowly construed to protect communications on government or political matters. The defendant's publications were examined to determine if they fell within this category, with a particular focus on whether they pertained to the relationship between citizens and government or the activities of government entities. The court emphasised the need for the defendant to demonstrate that its conduct in making the publication was reasonable, involving having reasonable grounds for believing the defamatory imputation was true, taking proper steps to verify the accuracy of the material, and not believing the imputation to be untrue. The court also stressed the importance of the defendant seeking and publishing any response from the defamed individual, unless doing so was not practicable or unnecessary. The court further ruled that evidence of the plaintiff's bad reputation must be confined to the relevant sector of his reputation, applying the principle established in Lange. The court found that the application to strike out matters not covered by the privilege was affected by the defendant's delay in bringing the application, and that the defence plea of bad reputation required careful consideration within the specific context of the plaintiff's reputation in the relevant sector.

The court ultimately ruled in favour of the defendant on the basis that the articles in question did fall within the Lange defence of qualified privilege, as they pertained to political discussion relating to the role of prosecutors as an arm of government. The court found that the defendant had acted reasonably in publishing the articles, having reasonable grounds to believe the defamatory imputation was true and having taken proper steps to verify the accuracy of the material. The court also held that the evidence of the plaintiff's bad reputation was admissible within the relevant sector of his reputation, but did not outweigh the qualified privilege defence. The final orders of the court were that the defendant's publications were protected by the defence of qualified privilege, and the plaintiff's claim for defamation was dismissed.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court marked out an extension to the defence of qualified privilege in regard to political discussion. The categories of qualified privilege must now be recognised as protecting a communication made to the public on a government or political matter. A publisher relying on the Lange category of qualified privilege must establish that its conduct in making the publication was reasonable in all the circumstances. The defendant will usually need to establish that it had reasonable grounds for believing the defamatory imputation was true, took proper steps so far as they were reasonably open to verify the accuracy of the material, and did not believe the imputation to be untrue. The High Court in Lange (supra) put the matter in this way at p 574:"Whether the making of a publication was reasonable must depend upon all the circumstances of the case. But, as a general rule, a defendant's conduct in publishing material giving rise to a defamatory imputation will not be reasonable unless the defendant had reasonable grounds for believing that the imputation was true, took proper steps, so far as they were reasonably open, to verify the accuracy of the material and did not believe the imputation to be untrue. Furthermore, the defendant's conduct will not be reasonable unless the defendant has sought a response from the person defamed and published the response made (if any) except in cases where the seeking or publication of a response was not practicable or it was unnecessary to give the plaintiff an opportunity to respond." Political discussion includes discussion relating to the relationship between citizens and the policies, structure, composition and activities of government and therefore extends to debate about the role of prosecutors as an arm of government: Cock v Hughes [2002] WASC 108. It is said to include discussion about the conduct, policies or fitness for office of government, political parties, public bodies, public officers and those seeking public office: Theophanous v The Herald and Weekly Times Ltd (1994) 182 CLR 104 at 124; Popovic v Herald and Weekly Times Ltd [2002] VSC 174. In Buddhist Society of Western Australia Inc v Bristile Ltd [2000] WASCA 210 the Full Court in this State held that an arguable Lange defence had been raised as to one of the letters in question, namely, a pro forma letter of protest to the Minister for the Environment about traffic in the vicinity of the plaintiff's premises. The letter was arguably relevant to the exercise by the Minister of her public functions and powers. It was a matter which the general public had a legitimate interest in receiving information about. The Full Court held further that a letter of protest to the plaintiff did not fall within the Lange defence. It was held also that as the publisher must prove his conduct was reasonable, the defence will not be sufficiently pleaded unless there is an express averment that the making of the publication was reasonable within the meaning adumbrated in Lange (supra) at 574.