Shea v News Ltd
[2015] WASC 1
•5 JANUARY 2015
SHEA -v- NEWS LTD [2015] WASC 1
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 1 | |
| Case No: | CIV:3439/2011 | ON THE PAPERS BY WRITTEN SUBMISSIONS OF 23 OCTOBER, 17 NOVEMBER AND 26 NOVEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 5/01/15 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend refused as regards pars 45 and 46 of minute, with leave to replead | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM SHEA GLEN PARFITT BY HIS NEXT FRIEND NATALIE SHEA NEWS LTD NATIONWIDE NEWS PTY LTD PHIL HICKEY BRUCE BUTLER DAVID PENBERTHY |
Catchwords: | Defamation Justification Interpretation Lucas-Box/Polly Peck defences Leave to amend defence sought Beliefs and suspicions by police No police identified No reasonable grounds pleaded No grounds provided by particulars for Polly Peck/Lucas-Box imputations |
Legislation: | Nil |
Case References: | Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB) Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11 Corse v Robinson (Unreported, WASCA, Library No 970669, 8 December 1997) Elliott v West Australian Newspapers Ltd [2009] HCATrans 152 Gumina v Williams [No 2] (1990) 3 WAR 351 Ives v The State of Western Australia [No 8] [2013] WASC 277 Jackson v John Fairfax & Sons [1981] 1 NSWLR 36 Lewis v Daily Telegraph Ltd [1964] AC 234 Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177; [1986] 1 WLR 147 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 Morris v Cash (1993) 10 WAR 507 Musa King v Telegraph Group Ltd [2004] EWCA Civ 613; [2005] 1 WLR 2282 Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; [1986] 2 All ER 84 Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669 Shah v Standard Chartered Bank [1999] QB 241 Singleton v Hudson (1998) 20 WAR 191 West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
GLEN PARFITT BY HIS NEXT FRIEND NATALIE SHEA
Second Plaintiff
AND
NEWS LTD
First Defendant
NATIONWIDE NEWS PTY LTD
Second Defendant
PHIL HICKEY
Third Defendant
BRUCE BUTLER
Fourth Defendant
DAVID PENBERTHY
Fifth Defendant
Catchwords:
Defamation - Justification - Interpretation - Lucas-Box/Polly Peck defences - Leave to amend defence sought - Beliefs and suspicions by police - No police identified - No reasonable grounds pleaded - No grounds provided by particulars for Polly Peck/Lucas-Box imputations
Legislation:
Nil
Result:
Leave to amend refused as regards pars 45 and 46 of minute, with leave to replead
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
First Defendant : No appearance
Second Defendant : No appearance
Third Defendant : No appearance
Fourth Defendant : No appearance
Fifth Defendant : No appearance
Solicitors:
First Plaintiff : DLA Piper Australia
Second Plaintiff : DLA Piper Australia
First Defendant : Carmel Galati
Second Defendant : Carmel Galati
Third Defendant : Carmel Galati
Fourth Defendant : Carmel Galati
Fifth Defendant : Carmel Galati
Case(s) referred to in judgment(s):
Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB)
Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11
Corse v Robinson (Unreported, WASCA, Library No 970669, 8 December 1997)
Elliott v West Australian Newspapers Ltd [2009] HCATrans 152
Gumina v Williams [No 2] (1990) 3 WAR 351
Ives v The State of Western Australia [No 8] [2013] WASC 277
Jackson v John Fairfax & Sons [1981] 1 NSWLR 36
Lewis v Daily Telegraph Ltd [1964] AC 234
Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177; [1986] 1 WLR 147
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Moran v Schwartz Publishing Pty Ltd [2014] WASC 334
Morris v Cash (1993) 10 WAR 507
Musa King v Telegraph Group Ltd [2004] EWCA Civ 613; [2005] 1 WLR 2282
Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; [1986] 2 All ER 84
Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669
Shah v Standard Chartered Bank [1999] QB 241
Singleton v Hudson (1998) 20 WAR 191
West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148
- KENNETH MARTIN J:
Overview
1 This is the defendants' application heard on the papers for leave to amend their defence. An issue has arisen over the adequacy of the Polly Peck/Lucas-Boxalternative imputations sought to be raised and justified under par 45 and par 46 of the defendants' minute: see generally Polly Peck (Holdings) Plc v Trelford [1986] QB 1000; [1986] 2 All ER 84; Lucas-Box v News Group Newspapers Ltd [1986] 1 All ER 177; [1986] 1 WLR 147. The plaintiffs oppose the grant of leave, by their written submissions of 17 November 2014.
Procedural history
2 The plaintiffs jointly commenced proceedings in this court by their next friends against the defendants, seeking damages for defamation, by their writ of 23 December 2011. Both plaintiffs were then infants. They have since attained their majority.
3 Under the plaintiffs' statement of claim of 29 February 2012, both complain essentially of damage to their reputations, by their identification in photographs and accompanying articles published on the Perth Now and News.com.au websites, owned and operated by the first defendant.
4 The published photographs show a series of people photographed at a Perth train station by somewhat indistinct images, under a headline 'Party thugs hunted by police for a double stabbing in Bassendean are wanted for another incident'.
5 The first, third and fifth publications as complained of relate to defamation contentions of the first plaintiff, Mr Shea. He says he is identified in the photographs and has been injured in his reputation by the articles, all essentially suggesting he was one of the 'thugs' who had engaged in violent and destructive criminal conduct on New Year's Eve, first at a house in the Perth suburb of Bassendean, then later at another house in the suburb of Ashfield, as referred to in the articles.
6 The second, fourth and sixth publications are complained of by the second plaintiff and display the same essential content.
7 Mr Parfitt raises similar imputations to Mr Shea in relation to the same articles published over the Perth Now website, referable to his asserted identification in the various photographs, then to be read against the content of the accompanying articles, to the effect that he also had participated in criminal acts of serious misconduct at Bassendean, then Ashfield.
8 The first and second matters complained of concern publications over the internet on 5 January 2011, at approximately 12.30 pm. The third and fourth publications relate to what was later published in like terms, on the same website at 1.30 pm (accompanied then by a series of comments, posted subsequently by various members of the public to that website). Those posted public comments are almost universally critical of the photographed group participants, regarding the reported New Year's Eve stabbing or glassing incidents at Bassendean, and later at Ashfield.
9 The fifth and sixth publications display more photographs, again allegedly identifying both plaintiffs and published over another internet website. These publications were said to have occurred at 4.30 pm, and also on 5 January 2011.
10 The first and second matters complained of are said to have been published over the worldwide web, via the Perth Now website. Likewise for the third and fourth matters. The fifth and sixth publications complained of are said to have been published over the worldwide web via the News.com.au website.
11 Identification issues aside, each plaintiff seeks to extract from each publication a series of natural and ordinary meanings (ie, popular innuendos) directed at suggesting the articles defamed each of them by, in effect, asserting their guilt by participation in various criminal acts by a gang of young men across New Year's Eve 2010 and New Year's Day 2011 at Bassendean, then at Ashfield.
The plaintiffs' imputations
12 I will only set out the imputations (commonly) alleged by both plaintiffs, in respect of the third and fourth matters complained of, pars 20.1 - 20.7 and 25.1 - 25.7.
13 Each plaintiff essentially asserts that each matter complained of meant, or was understood to mean, in its natural and ordinary meaning, that:
1 The first plaintiff/second plaintiff had unlawfully stabbed a 20-year-old man and a 19-year-old girl and caused them serious injuries at a New Year's Eve party in Bassendean.
2 Alternatively, the first plaintiff/second plaintiff had been part of a gang that had unlawfully stabbed a 20-year-old man and a 19-year-old girl and caused them serious injuries at a New Year's Eve party in Bassendean.
3 The first plaintiff/second plaintiff had thrown bricks and bottles and smashed the windows of cars and caused thousands of dollars of damage to the front of a house at Bassendean.
4 Alternatively, the first plaintiff/second plaintiff had been part of a gang that had thrown bricks and bottles and smashed the windows of cars and caused thousands of dollars of damage to the front of a house at Bassendean.
5 The first plaintiff/second plaintiff had unlawfully stabbed and caused serious injuries to a number of people at a party in Ashfield.
6 Alternatively, the first plaintiff/second plaintiff had been part of a gang that had unlawfully stabbed and caused serious injuries to a number of people at a party in Ashfield.
7 The first plaintiff/second plaintiff was a party to a cowardly and violent attack on defenceless people and thereby deserved to be imprisoned for a substantial period of time.
14 Identical (popular) innuendos reappear recurrently in the plaintiffs' pleading in respect of all publications complained of (save for number 7 above, which is unique to the third and fourth publications).
15 The imputations by each plaintiff are invariably the same. Hence, concerning the second plaintiff: see pars 25.1 to 25.7.
16 All the imputations raised contend for the plaintiffs' guilty participation in acts of criminal misconduct. There is no alternate, lesser pleaded imputation raised by the plaintiffs such as conduct of the plaintiffs warranting investigation or, say, that they were suspected by the authorities on reasonable grounds of criminal conduct. In other words, the extracted imputations as pleaded by these plaintiffs are only pitched presently at the highest possible level of guilty participation in acts of misconduct. In England and Wales the terminology applied to the level of an imputation of misconduct so pitched would be a 'Chase level 1' imputation: see generally Chase v News Group Newspapers Ltd [2002] EWCA Civ 1772; [2003] EMLR 11.
17 It may be further observed that all the plaintiffs' imputations have been constructed as popular innuendos - arising out of the natural and ordinary meaning of the words and pictures as published, other than as regards proving the (photographic) identification of the otherwise unnamed respective plaintiffs, as being the subject of each allegedly defamatory publication.
18 There has ensued the recent application. under the defendants' chamber summons of 3 September 2014, seeking leave to amend the defence. Given the action has not yet been entered for trial, it was for some time unclear to me why this application for leave to amend the defence pleading has been pursued by the defendants. There is now, of course, unlimited leave to amend a pleading in the period up to seven weeks prior to the commencement of a trial: see Rules of the Supreme Court 1971 (WA) O 21 r 3(1). Clearly, no trial date has yet been fixed for this action. The defendants' reply submissions of 26 November 2014 explain, however, that the defendants are seeking by their proposed amendments to withdraw certain admissions the subject of their earlier defence pleas and hence, the leave application was necessary to withdraw those admissions. But no controversy arises over the defendants' proposed amendments withdrawing the earlier pleas. The present, broader issue has emerged as a potential obstacle to leave being granted to amend in the terms of par 45 and par 46.
19 The application for leave to amend the defence pleading is now actively opposed by the plaintiffs, but only as regards par 45 and par 46, as I assess their submissions.
20 The defendants' minute of proposed amended defence of 3 September 2014 manifests what are newly added proposed Polly Peck/Lucas-Box pleas, under par 45 and par 46 of that minute. Defences of justification towards alternative meanings are sought to be raised by the defendants. The proposed justification pleas are not directed at the precise innuendo meanings as raised by the plaintiffs. Rather, the proposed pleas as seen under par 45 and par 46 only seek to advance and prove at trial the substantial truth of what are less serious meanings. But these are meanings which the defendants say are viably open, as arising from the words of the publications and still broadly within a (lesser) genre of meanings raised by the plaintiffs, from the six articles complained of -thereby meeting the criteria under West Australian Newspapers Ltd v Elliott [2008] WASCA 172; (2008) 37 WAR 387 for such a response: see [49] and [72].
21 As drawn, par 45 and par 46 of the defendants' minute contend for a justification of meanings less serious than those contended for by the plaintiffs. In each case, each of the plaintiffs' meanings (already seen) are slightly recrafted by the defendants to be newly prefaced by the pleas that if the articles are found to bear any imputation defamatory of the plaintiffs, then
the defendants say that the Matters Complained Of carry only the meanings that the plaintiffs were believed by Police to have:
(a) unlawfully stabbed a 20 year old man and a 19 year old girl and caused them serious injuries at a New Years' Eve party in Bassendean;
…
- [Paragraphs (b) and (c) then follow in terms which similarly paraphrase the plaintiffs' imputations as I have earlier set out.]
which meanings are true in substance and in fact. (my emphasis in bold)
… the defendants say that the Matters Complained Of carried only the meanings that the plaintiffs were suspected by Police to have: (my emphasis in bold)
23 [Paragraphs (a) - (g) then follow in the same manner as for par 45.]
24 The particulars (of alternative justification) under par 46 are a wholesale repetition of the particulars under par 45. For convenience I will set them out now in full, as they bear upon a further objection raised by the plaintiffs:
Particulars
Through their enquiries, which included the taking of statements from 6 persons, police established:
i between 10 to 20 people (the Gang) had attended a party at a house in Scadden Street, Bassendean, at approximately 11 pm on 31 December 2010;
ii some members of the Gang were dark-skinned males aged 18 to 25 years;
iii during an altercation, the Gang inflicted injuries on 2 people and caused property damage at Scadden Street;
iv members of the Gang left the Scadden Street property and were captured on footage taken at the Bassendean train station;
v members of the Gang were filmed decamping at the Ashfield train station;
vi members of the Gang then attended a residence at Haig Street, Ashfield, where the Gang were involved in inflicting injuries on 4 people and causing property damage;
vii the plaintiffs were present at Bassendean train station at the relevant time on the evening of 31 December 2010 and fell within the description of members of the Gang provided by witnesses to Police.
Belief and suspicion
25 Hence, the only real distinction as between the proposed defence par 45 and par 46 is the one-word distinction as between belief and suspicion, by 'Police'.
26 As to that, I note the observations of Steytler P in Elliott at [70], whilst his Honour was evaluating grounds 3 and 4 of that appeal. Ground 3 was set out by the President at [18], in reference to a distinction made by the primary judge in Elliott between an imputation of reasonable grounds 'to believe' and an imputation of reasonable grounds 'to suspect' - then challenged at the appeal. Towards grounds 3 and 4, Steytler P had observed at [70]:
It seems to me that there is a difference between 'reasonable grounds to believe', on the one hand, and reasonable grounds for suspicion, on the other, with the former being even closer to an imputation of guilt than the latter. However nothing turns on that difference in this case.
27 Whatever may turn upon that one word nomenclature distinction used as between par 45 and par 46 here, there is a greater conceptual omission issue presenting. It is apparent that on their face, proposed par 45 and par 46 do not, as drawn, plead either a belief or suspicion (by the Police) on reasonable grounds.
28 The key issue then that arises is whether, on the state of the law in Western Australia, it is necessary for the defendants to plead in terms that assert reasonable grounds for a belief or a suspicion by police - or whether the bare plea, say, as to a mere suspicion or mere belief (by police) without more is enough.
29 Resolution of that core issue requires that close attention be afforded to a decision of the Full Court of this State, Gumina v Williams [No 2] (1990) 3 WAR 351 and to a number of cases which have followed Gumina [No 2] since: see, for instance, Ives v The State of Western Australia [No 8] [2013] WASC 277 [46].
Gumina [No 2]
30 Gumina [No 2] is a Full Court decision, of Malcolm CJ, Pidgeon and Seaman JJ, delivered 12 October 1990. Eighteen years later, the decision was in turn the subject of extensive observations by Steytler P in Elliott, commencing at [32]. At the conclusion of his reasons in Elliott Steytler P at [65] said:
In all of the circumstances, it seems to me that it would not be appropriate for a two-judge court, on an interlocutory appeal, to depart from the judgment of the Full Court in Gumina [No 2]. Moreover, it seems to me that that decision cannot be said to be plainly wrong, on the existing state of authority. (citations of authority omitted)
31 McLure JA agreed with the orders and reasons of the President. She provided additional comments: see [72].
32 Relevantly to present arguments, Steytler P noted the two problematic defence imputations which had been pleaded by the respondent in its defence in Gumina [No 2]: see [32]. Those Polly Peck/Lucas-Box attempted defence imputations were rejected as defectively framed by Seaman J, with whom Malcolm CJ and Pidgeon J agreed: see Gumina [No 2] (371).
33 The two Polly Peck imputations of the defendant in Gumina [No 2] had been drawn (356) in these terms:
(i) the plaintiff is suspected by senior detectives of the CIB of Western Australia of long-term complicity in organised heroin trafficking in Western Australia;
…
(iv) the plaintiff is suspected by senior detectives of the CIB of Western Australia to be a 'lieutenant' to one of Melbourne's leading heroin dealers within an organised crime structure operating in Western Australia …
which imputations are true. (my emphasis in bold)
34 Towards these two meanings Seaman J had concluded (371):
With some hesitation I have come to the conclusion that these meanings are capable of arising from the article.
However, the particulars of justification are merely an assertion that they are true, and I am quite satisfied that the first and fourth meanings should be struck out because a statement of suspicion without more discloses no reasonable defence: Jackson v John Fairfax & Sons.
35 Eighteen years later, in Elliott,Steytler P observed concerning the two defectively framed defamatory imputations in Gumina [No 2] at [32]:
However, because [Seaman J] regarded a statement of suspicion, without more, as disclosing no reasonable defence (at 371), he was satisfied that the defendant's imputations should be struck out. Malcolm CJ agreed with Seaman's analysis (at 354), as did Pidgeon J (at 356).
36 The reasons at 371 in Gumina [No 2] show that Seaman J reached his conclusion as to the defective formulation of those two defendants' imputations, applying observations of Hunt J in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36, 41. Seaman J had been referring back to an extract from Jackson that he had set out earlier at 368. That was in the context of discussing the distinction between proving the facts necessary to justify conduct and a suspicion of conduct. In Gumina [No 2] the submission of counsel for the plaintiff (W S Martin, as he then was) and accepted by Seaman J, was that
an imputation of suspicion must be justified by showing that there were reasonable grounds for holding it. (368)
37 The passage quoted by Seaman J at 368 in Gumina [No 2], taken from Hunt J's reasons in Jackson (41), read:
It is conceded by the defendants (and properly so, in my view) that the assertion, for example, that the plaintiff was suspected of conspiracy to cheat and defraud necessarily implies that he had so conducted himself as to have warranted that suspicion.
…
To state that a man has been charged with a criminal offence suggests, in my view, at the least that he has so conducted his affairs as to give the police (or the Corporate Affairs Commission) reasonable and probable cause (or, perhaps, merely good grounds) so as to charge him or, as I previously put it, that he has so conducted himself as to have warranted the laying of a charge against him. 'Reasonable and probable cause' means an honest belief in the guilt of the accused, founded on reasonable grounds which themselves objectively lead to a conclusion that the person charged is probably guilty of the crime charged: Hicks v Faulkner (1878) 8 QBD 167, at 171; Herniman v Smith [1938] AC 305, at 316.
38 The reasons in Gumina [No 2] at 369 proceed on further to then refer to the observations of Mason J (with whom Wilson J agreed) in Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 300. In Harrison,there had been a 2:2 division in the High Court on an obiter issue (Aickin J dying before reasons were delivered) over whether a newspaper report that someone had been arrested and was to be charged with an offence, necessarily carried with it the implication that there were reasonable grounds for suspicion by the police. Mason and Wilson JJ thought so. But Gibbs CJ and Brennan J preferred not to decide that issue, until necessary. That reserved issue still remains unresolved at the highest level in Australia, on my assessment. Of course, all four justices in Harrison accepted as correct the proposition that, without more, a report about a subject's arrest and expected charging with an offence would not convey to the ordinary and reasonable reader that the subject was guilty of the charge.
39 Towards the present arguments it may be observed that, unlike the facts underlying Harrison, the present case does not present a factual scenario of either plaintiff here ever having been arrested or charged by the West Australian police with committing any offence. Reports of arrest and charging situations as regards offences, in my view, carry unique considerations, as was seen in Harrison.
40 For the present case, it must be observed that the proposed par 45 and par 46 Polly Peck pleas, raised by the defendants to be justified, do not say that any of the matters pleaded as being 'believed' by police (par 45), or 'suspected' by police (under par 46), were so 'believed' or so 'suspected' based upon any identified reasonable grounds.
41 To that extent, par 46 here, as regards the pleaded suspicion by police, presents prima facie as exhibiting exactly the same conceptual deficiency as the two defective imputations (i) and (iv) which were struck down in Gumina[No 2] at 371. The par 45 plea as to matters 'believed' by 'Police' seems intended to work similarly albeit perhaps as Steytler P observed in Elliott, possibly at a level closer to guilt than suspicion. It is not presently necessary to pursue the basis of the intended distinction (if any) as between 'suspected' and 'believed' under par 45 and par 46.
42 Supporting their proposed par 45 and par 46, the defendants have now filed two tranches of written submissions.
43 It is contended, in effect, that notwithstanding what was said by the Full Court in Gumina [No 2], it is nevertheless open and permissible in Western Australia to plead only bare 'suspicion' or 'belief', as long as the 'suspicion' or 'belief' is attributed to some public authority figure, or body. Such a pleaded 'suspicion' or 'belief' is thereby, it is said, given a defamatory quality (primary written submissions par 9). On the face of it, that submission flies in the face of the Gumina [No 2] Full Court's cutting down of the defectively framed imputations (i) and (iv). As seen, those two imputations had merely referred to a suspicion as regards Mr Gumina held by senior detectives of the Criminal Investigation Bureau (CIB) of Western Australia. The pleas were assessed as being defective and insufficient pleas of justification, absent the provision of reasonable grounds to support such asserted suspicions by the detectives.
44 The defendants accept the Gumina [No 2] position is supported by the cited observations of Hunt J from Jackson. Nevertheless, they submit that a decision subsequent to Jackson, by the New South Wales Court of Appeal, namely, Sergi v Australian Broadcasting Commission [1983] 2 NSWLR 669, and particularly the observations by Hutley JA at 671B - D, Priestley JA at 680, and Glass JA at 678D, effectively repudiated what had been said by Hunt J in Jackson. The defendants then say Sergi was not cited to the Full Court that decided Gumina [No 2] and, hence, that the Sergi approach is not only to be preferred but that, in effect, I must follow it, in preference to Gumina [No 2]. Hence, it is obviously necessary for me to closely examine Sergi.
Sergi v Australian Broadcasting Corporation [1983] 2 NSWLR 669
45 In Sergi two passively framed plaintiff's imputations relevantly at issue on that appeal (see page 674) were:
(f) The plaintiff had been accused of being responsible for the disappearance and murder of Donald MacKay;
(g) The plaintiff had been accused of being connected with a murderous, secret society masterminding an extensive drug network from Griffith;
46 One key issue in the Sergi appeal was whether the passively framed imputations by the plaintiff were arguably permissible. Earlier, they had been rejected by Hunt J as being conceptually misconceived, following his own decision in Jackson.
47 In that appellate context in Sergi, Hutley JA had observed at 671B - D that
where the passive voice is used in connection with accusations, it is necessary to specify the accuser … The cases in which the defamatory import of the accusations have arisen are all where the accusation was by legitimate authorities. Thus, in Lewis v Daily Telegraph Ltd [1964] AC 234, the defamatory meaning was that the plaintiffs were suspected by the police (see at 239).
48 The passive/active distinction in the framing of anyone's imputations arising from Sergi is not relevant to the present leave application and controversy.
49 Nevertheless, a basis to distinguish Gumina [No 2], arising out of Sergi,is advanced by the defendants (par 29, defendants' written submissions), as follows:
When one looks to the particulars of truth of the defendants' imputations, it can be seen that the defendants do not rely merely on the fact that the Police believed the plaintiffs were the culprits. The basis for the belief is set out. It should be remembered that it is the evidence called on the issue at trial, not the particulars, which will determine the success of the defence, and the success of that defence could not be struck out on a General Steel basis at this stage. This case is plainly distinguishable from Gumina.
50 Because of that submission, it is necessary to examine again the particulars provided by the defendants to their proposed par 45 and par 46.
51 But before undertaking that task it is convenient to note the defendants' further submission concerning Chase, as to what in England and Wales might be termed a Chase level 2 imputation (ie, of a suspicion on reasonable grounds). At par 31 of their submissions, the defendants say that the comments by Brooke LJ at [48] in Chase support a distinct (and unchallenged) proposition, namely
where an imputation does make an allegation of suspicion on reasonable grounds, the defendant is obliged to prove some conduct of the plaintiff that gives rise to the suspicion. (emphasis in original)
52 Chase certainly does support that proposition, sometimes referred to as the 'conduct' rule: see Chase at [30]. However, as will be discussed, the Chasereasons of the Court of Appeal of England and Wales carry a more extensive significance than a mere explication of the so-called 'conduct' rule.
The defendants' particulars to par 45(a) - (f) and par 46(a) - (f)
53 As mentioned, the defendants' submission above renders it necessary for me to examine the common particulars invoked by the defendants under proposed par 45 and par 46.
54 As we have seen, the particulars provided to par 45(a) - (f) (imported across for par 46(a) - (f) in identical terms) state:
Through their enquiries, which included the taking of statements from 6 persons, police established:
i between 10 to 20 people (the Gang) had attended a party at a house in Scadden Street, Bassendean, at approximately 11 pm on 31 December 2010;
ii some members of the Gang were dark-skinned males aged 18 to 25 years;
iii during an altercation, the Gang inflicted injuries on 2 people and caused property damage at Scadden Street;
iv members of the Gang left the Scadden Street property and were captured on footage taken at the Bassendean train station;
v members of the Gang were filmed decamping at the Ashfield train station;
vi members of the Gang then attended a residence at Haig Street, Ashfield, where the Gang were involved in inflicting injuries on 4 people and causing property damage;
vii the plaintiffs were present at Bassendean train station at the relevant time on the evening of 31 December 2010 and fell within the description of members of the Gang provided by witnesses to Police.
55 As to these par 45 (and par 46) particulars, I can observe:
(a) the only component of the seven provided particulars that actually attempts to address the two plaintiffs specifically (as opposed to addressing 'the Gang') is particular (vii);
(b) generic references to 'police' are seen within par 45 and par 46, then in the preface to and in par (vii) of the particulars. No actual police officers are identified as holding the asserted beliefs or suspicions concerning either plaintiff;
(c) the par 45 and par 46 particulars look to be drawn to be relied upon to support Polly Peck pleas of truth as to belief and suspicion by the police, seen formulated under par 45 and par 46;
(d) nothing found in the particulars says or suggests that a pleaded belief that was held by 'police' (par 45), or a suspicion held by 'police' (par 46) concerning the present plaintiffs, was based upon any identifiable reasonable grounds at that time. That is so, notwithstanding these particulars are prefaced by a statement about what police are said to have 'established', after taking statements from six (unnamed) persons and after 'their enquiries';
(e) the Polly Peckpleas attempted under par 45 and par 46 towards the alternate/lesser meanings sought to be justified, do not seem to attempt to meet what is sometimes referred to in England and Wales as a Chase level 3 imputation - the lowest level meaning category of imputation, towards there being only serious grounds for investigation (see Chase at [49]) (in contradistinction to the higher Chase level 1 imputation of guilt, or Chase level 2 intermediate imputation of suspicion on reasonable grounds - and see my observations in Moran v Schwartz Publishing Pty Ltd [2014] WASC 334 [84]).
(f) A Chase level 3 imputation by origin might be traced back to the observations of Lord Devlin in Lewis v Daily Telegraph Ltd[1964] AC 234 at 282 and 285, from his Lordship's famous passage explaining his categories of justification in terms, as regards showing the fact of an inquiry in Lewis by, in that case, the City of London Fraud Squad. He said:
In the present case, for example, there could have been three distinct categories of justification - proof of the fact of an inquiry, proof of reasonable grounds for it and proof of guilt. If no innuendo had been pleaded and there had been full proof of grounds for inquiry, I cannot think that in a closing speech the plaintiff could without any previous notice invite the jury to say that the words meant guilt and to reject the justification as insufficient. (282) (my emphasis in bold)
57 Brooke LJ in Chase (with whom Rix and Keene LJJ agreed) revisited the Lewis tripartite taxonomy concerning possible levels of justification. At [45], specifically by reference to what Lord Devlin said in Lewis (282), Brooke LJ observed:
The sting of a libel may be capable of meaning that a claimant has in fact committed some serious act, such as murder. Alternatively it may be suggested that the words mean that there are reasonable grounds to suspect that he/she has committed such an act. A third possibility is that they may mean that there are grounds for investigating whether he/she has been responsible for such an act. (my emphasis in bold)
58 At first glance, the element of 'grounds for investigating' may seem to graft a 'grounds' requirement onto what Lord Devlin said in Lewis at 282 and 285 as regards justification, by 'proving the fact of an inquiry'. But his Lordship did also at 282, as seen above, refer to the 'full proof' of grounds for inquiry.
59 The category three Chase imputation was explained at [49] by Brooke LJ as the 'possible lower meaning' - ie, meaning lower than 'reasonable grounds to suspect the claimant of involvement in hastening the deaths of child patients' (see [18] of Chase). He continued:
A possible alternative meaning (namely that there were serious grounds to investigate the claimant) first surfaced at the hearing before the Judge after Mr Spearman's attention had been drawn for the first time to the judgment of this court, given by Robert Walker LJ in Bennett v News Group Newspapers Ltd [2002] EMLR 860.
60 Brooke LJ at [49] endorsed the observations of the primary judge in Chase, to the effect that the lowest level (ie, level three) of imputation ('serious grounds to investigate') would have been a hopeless amendment, had it been proposed in that case - given the articles published by The Sun newspaper 'clearly went further and conveyed the imputation that there were reasonable grounds to suspect'. From that passage is displayed a cardinal point, namely that the words complained of need to provide some foundation for whatever Chase level of imputation is attempted. The theoretical possibility of a plaintiff's imputation of guilt being met with some lesser meaning, is only real if the lesser meaning is reasonably open from the publication.
61 That observation resonates with a late additional submission put by the plaintiffs here (plaintiffs' written submissions par 10 and par 11) that par 45(a) - (d) and par 46(a) - (d) are untenable - because those meanings are not even arguably open, from the terms of any of the six publications complained of here. In other words, the plaintiffs say that there is nothing by way of the words in any article here to lay any sort of proper foundation for defence arguments about beliefs or suspicions by police as regards (a) - (d). On the face of it, these would appear to be some prima facie observations. But in the end, due to a more plenary conceptual difficulty with par 45 and par 46 themselves, it is ultimately unnecessary to resolve that late criticism of the particulars.
62 Concerning a Chase level 3 justification, I would render the concluding observation that the authors of Gatley on Libel and Slander (12th ed, 2013) make at [11.13]:
The position where the defendant seeks to justify a Chase level three meaning - the lesser imputation that there are grounds for investigation of the claimant's conduct - is less clear. It would seem, however, that such grounds may exist independently of the conduct of the claimant. Indeed, they may be based on pure hearsay, as in the case of a complaint which a police officer investigates. Certainly, it has been suggested that the proposition that law enforcement authorities announced, suspected or believed the claimant to be implicated may be enough on which to base a defence of reasonable suspicion. In Jameel v Times Newspapers Ltd [2003] EWHC 2609 (QB) Gray J held that in such a case the plea of justification need not be based upon conduct by the claimant unless the basis asserted for the need for investigation was such conduct. If this is correct, then it would imply that the repetition rule does not apply to Chase level three imputations. (footnote citations omitted)
63 Nevertheless, in the present case, proposed par 45 and par 46 of the minute of the defendants do not even look to attempt to invoke the lowest level of Chase three justification imputation, as regards showing grounds for an investigation concerning these plaintiffs.
64 The defendants' base contention is that by reference to what was said in Sergi, it is enough merely to attribute 'suspicion' or 'belief' to an 'authority figure or body', and thereby the suspicion or belief is given a defamatory quality. In other words, the Gumina [No 2] touchstone requirement of showing reasonable grounds for the suspicion, or I assume, showing grounds for an inquiry, is unnecessary, according to the defendants.
65 However, in my assessment, no case authority supports that broad proposition in a context of a pleaded justification defence: see generally, the comprehensive discussion of Australian and United Kingdom defamation cases by Professor P Kutner, 'Truly Suspected, Falsely Defamed?' (2011) 19 Torts Law Journal 214, 244 - 245.
66 In practical terms, the alternate justification pleas as framed under proposed par 45 and par 46 foreshadow a justification exercise at the trial, by the defendants calling as trial witnesses perhaps one or two police officers to give their evidence as to their subjective holding of beliefs or suspicions about the plaintiffs at 5 January 2011 - but without any attempt to prove any underlying objectively reasonable facts as grounds for these beliefs or suspicions (a Chase level 2 imputation), or even as grounds for an investigation (a Chase level 3 imputation).
67 On my assessment of the defendants' written submissions, this bold justification approach is pursued only from a case authority perspective upon some observations of Glass JA in Sergi (more than 31 years ago), in circumstances where, for Sergi, there was no underlying Polly Peck or Lucas-Box context requiring exposition.
Sergi is distinguishable
68 On my assessment, the force that is attributed to Sergi under the defendants' written submissions, towards supporting the legitimacy of bare alternative justification pleas as to the holding of a mere belief or a suspicion (without reasonable grounds) by police, is misplaced. That is so, in my view, for at least the following reasons.
(a) Sergi did not expressly overrule Jackson. Indeed, some years later in Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, Hunt J looks to have accepted that Glass JA in Sergi was correct when observing that there may be cases where the express words in a publication render it crystal clear that a suspicion upon the basis of reasonable grounds is not open as a matter of inference. Hunt J said in Whelan:
In Sergi v Australian Broadcasting Commission (at 677), Glass JA said that it was possible to accompany a statement of that suspicion with such a disavowal of its reasonableness as to leave the statement of suspicion standing without any suggestion that it was warranted. I agree that that is so, although such a line of reasoning to my mind clearly supports the proposition that a statement of such suspicion without more is at least capable of suggesting that the suspicion is warranted. I now accept that it does not necessarily convey that suggestion (as had been conceded in Jackson v John Fairfax& Sons Ltd). But it is obviously capable of conveying the suggestion that the plaintiff had so conducted himself as to have warranted that suspicion. (emphasis in original)
Ordinarily, as Hunt J observed in Whelan, a statement of suspicion would imply reasonable grounds to found the suspicion.
(b) The observations about Sergi in Whelan look to have been referred to with apparent approval by Hirst LJ in Shah v Standard Chartered Bank [1999] QB 241, where he said (261):
Hunt J's view is fully in line with this approach.
Shah, of course, was a Lucas-Box/Polly Peck decision.
(c) Observations by Glass JA in Sergi display what I respectfully would assess as a disinclination to accept the invariable implication of 'reasonable cause for suspicion' in the police, namely, against the views as expressed by Mason J (with whom Wilson J agreed) in the 2:2 split as obiter, in Harrison at 301 - and as to justification at 302. Glass JA preferred instead, as I assess his Sergi reasons, the uncommitted approaches of Gibbs CJ and Brennan J (as he then was) on that obiter point, reserving for subsequent consideration whether the publication of a report that a subject had been arrested and was about to be charged with an offence - must invariably carry the underlying inference of suspicion held by the police upon reasonable grounds. On my assessment, that issue is still not finally resolved for Australia, over 30 years after Harrison, although the reasons of Seaman J in Gumina [No 2], as I read them, at 369, tend to accept the Mason J obiter from Harrison.
(d) As I have observed, the reasons in Sergi were not delivered in a Lucas-Box/Polly Peck defence alternative lesser imputation justification context. There were significant issues directly in focus in that case, in particular whether or not it was open to a plaintiff to plead a passively framed imputation. That was the significant point of controversy of the appeal resolved in Sergi against the position on that issue taken at first instance by Hunt J, which the Court of Appeal in Sergi unanimously rejected.
(e) The Court of Appeal in Sergi also required a nominated holder of a suspicion to be explicitly identified, rather than the imputation being left merely on a basis of someone unidentified asserted as holding a suspicion. An unidentified suspicion holder imputation in Sergi, as so framed, was assessed as defective: see Sergi (680G).
(f) By my assessment, for Western Australia Gumina [No 2] as regards defective imputations (i) and (iv) assessed in that appeal, when framed by reference to alleged suspicions of the police (namely, senior members of the CIB) is precisely equivalent to the present par 46 attempted plea. Gumina [No 2] is not distinguishable. My assessment of the reasons of Steytler P in Elliott (with whom McLure JA agreed) affirms a continuing relevance in this State of Gumina [No 2],until the High Court says otherwise. I note that an application for special leave to appeal against Elliott was refused by the High Court, on 25 June 2009: see Elliott v West Australian Newspapers Ltd [2009] HCATrans 152.
(g) All six publications that are complained of here by the plaintiffs (assessed with the group photographs said to capture them) do not rise, on my assessment, even arguably, as Hunt J expressed it in Whelan,as so clearly drawn in their terms to negate the inference of reasonable grounds for a belief or suspicion held by police, an exercise Hunt J recognised in Whelan as an exceptional possibility.
(h) A need, in this State at least, to plead out reasonable grounds for an asserted suspicion held by an authority such as the police is supported not only by Gumina [No 2] and Elliott, but by two decisions of Owen J in Morris v Cash (1993) 10 WAR 507 (especially at 516 - 517) and Singleton v Hudson (1998) 20 WAR 191, 198; and by the Full Court again in Corse v Robinson (Unreported, WASCA, Library No 970669, 8 December 1997) (Malcolm CJ, Owen & Steytler JJ); and recently by Le Miere J in Ives [No 8] [44].
Conclusion
69 My overall conclusion, therefore, absent the defendants seeking to justify a Chase 3 alternate justification plea, is that the pleas currently seen under pars 45 and 46 by the proposed minute are consequently misconceived - applying a line of intermediate level authority that is firmly established for this State by Gumina [No 2] and Elliott as regards Polly Peck/Lucas-Box justification defences. And that line of authority is also broadly consistent, as I would assess it, with the pleading practice in England and Wales, by the available deployment of the tripartite Chase taxonomy if the words of a publication will sustain lesser imputations as reasonably open. The Chase imputation taxonomy is less formally applied in Australia and, indeed, is not applied as any form of rigid statutory formula in England and Wales: see Chase[53], Musa King v Telegraph Group Ltd [2004] EWCA Civ 613; [2005] 1 WLR 2282, and Charman v Orion Publishing Group Ltd [2005] EWHC 2187 (QB) [17] (Gray J).
70 There must, of course, always eventually be, in every case, a bespoken assessment as to the amenability of an imputation to the words of the publication complained of.
71 Here, I would, in the end, refuse leave to the defendants to amend the defences under par 45 and par 46 of the proposed minute of amendments. The balance of the defendants' unopposed minute of amendments may, however, stand as the defendants' pleading. Leave is granted to amend to that extent, it being in those residual respects unopposed.
72 I would also grant leave to replead, as regards the defectively framed par 45 and par 46, if that is required under any further future iteration of an amended defence.
73 The defendants' minute of proposed amended defence invokes other defences on the defendants' behalf, including by reference to s 29(4)(l), s 28(4)(d), s 31(3) and s 31(5)(c) of the Defamation Act 2005 (WA) - beyond putting in issue whether any of the imputations actually do arise from the articles complained of. Those are, of course, all defence issues for trial.
74 The plaintiffs have ultimately been vindicated in opposing leave to amend under par 45 and par 46 and should, therefore, prima facie, receive their taxed costs of opposing the defendants' application for leave to amend, which has been determined wholly on the papers.
75 In the absence of agreement between the parties after conferral, the plaintiff should provide a minute of orders giving effect to these reasons for my approval within 21 days of these reasons being published.
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