Solomon v Sumner
[2005] WASC 128
SOLOMON -v- SUMNER [2005] WASC 128
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 128 | |
| Case No: | CIV:1929/2000 | 29 & 30 MARCH, 1 APRIL 2005 | |
| Coram: | LE MIERE J | 20/06/05 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | The plaintiff's claim in defamation is dismissed | ||
| B | |||
| PDF Version |
| Parties: | JULIA SOLOMON JAN SUMNER |
Catchwords: | Defamation Slander Determining the meaning of the words complained of Republication Qualified privilege Malice |
Legislation: | Nil |
Case References: | Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 204 ALR 193 Erglis v Buckley [2004] QCA 223; [2004] 2 QDR 599 Kearns v General Council of the Bar [2003] 1 WLR 1357 McManus v Beckham [2002] 1 WLR 2982 Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 Watt v Longsdon [1930] 1 QB 130 Adam v Ward [1917] AC 309 Askew v Morris [2004] WASC 43 Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354 Clover Bond Pty Ltd v Carroll [2004] WASC 216 Cock v Hughes [2001] WASC 24 Cohen v McEvoy [2001] WASC 349; (2001) 122 LGERA 15 Dale v Ingersole, unreported; SCt of WA; Library No 8931; 28 June 1991 Edgar v Freeman [1915] VLR 16 Harding v Essey [2005] WASCA 30 Heytesbury Holdings Pty Ltd v City of Subiaco (1988) 19 WAR 440 Horrocks v Lowe [1975] AC 135 Howe & McColough v Lees (1910) 11 CLR 351 Jones v Skelton [1963] SR (NSW) 644 Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union (1995) 14 WAR 360 Merkoff v Pawluk [1931] 1 WWR 669 Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632 Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 Parkins v Scott (1862) 1 H&C 153 Roberts v Bass (2002) 212 CLR 1 Rookes v Barnard [1964] AC 1129 Sims v Wran [1984] 1 NSWLR 317 Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 Slipper v British Broadcasting Corporation [1991] 1 QB 283 Stuart v Bell (1891) 2 QB 341 Sullivan v Moody (2001) 207 CLR 562 Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118 Ward v Weeks (183) 7 Bing 211 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
JAN SUMNER
Defendant
Catchwords:
Defamation - Slander - Determining the meaning of the words complained of - Republication - Qualified privilege - Malice
Legislation:
Nil
Result:
The plaintiff's claim in defamation is dismissed
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : In person
Defendant : Mr P G McGowan
Solicitors:
Plaintiff : In person
Defendant : Phillips Fox
Case(s) referred to in judgment(s):
Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 204 ALR 193
Erglis v Buckley [2004] QCA 223; [2004] 2 QDR 599
Kearns v General Council of the Bar [2003] 1 WLR 1357
McManus v Beckham [2002] 1 WLR 2982
Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293
Watt v Longsdon [1930] 1 QB 130
Case(s) also cited:
Adam v Ward [1917] AC 309
Askew v Morris [2004] WASC 43
Austin v Mirror Newspapers Ltd (1985) 3 NSWLR 354
Clover Bond Pty Ltd v Carroll [2004] WASC 216
Cock v Hughes [2001] WASC 24
Cohen v McEvoy [2001] WASC 349; (2001) 122 LGERA 15
Dale v Ingersole, unreported; SCt of WA; Library No 8931; 28 June 1991
Edgar v Freeman [1915] VLR 16
Harding v Essey [2005] WASCA 30
Heytesbury Holdings Pty Ltd v City of Subiaco (1988) 19 WAR 440
Horrocks v Lowe [1975] AC 135
Howe & McColough v Lees (1910) 11 CLR 351
Jones v Skelton [1963] SR (NSW) 644
(Page 3)
Marks v Construction, Mining, Energy, Timberyards, Sawmills and Woodworkers Union (1995) 14 WAR 360
Merkoff v Pawluk [1931] 1 WWR 669
Mirror Newspapers Ltd v World Hosts Pty Ltd (1979) 141 CLR 632
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Parkins v Scott (1862) 1 H&C 153
Roberts v Bass (2002) 212 CLR 1
Rookes v Barnard [1964] AC 1129
Sims v Wran [1984] 1 NSWLR 317
Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1
Slipper v British Broadcasting Corporation [1991] 1 QB 283
Stuart v Bell (1891) 2 QB 341
Sullivan v Moody (2001) 207 CLR 562
Uren v John Fairfax & Sons Ltd (1966) 117 CLR 118
Ward v Weeks (183) 7 Bing 211
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1 LE MIERE J: The plaintiff claims damages for defamation.
The Plaintiff
2 The plaintiff is a clinical psychologist. In the early 1990s the plaintiff decided to specialise in the area of children's learning disorders. She devised a programme called the Reading for Sure ("RFS") programme. The programme became well known. In the mid 1990s, 30 schools used it and the plaintiff was invited overseas and to the eastern states to deliver the programme. By the year 2000 the plaintiff was concentrating mainly on the development of the programme, and on the training and guidance of teachers using it.
The Defendant
3 The defendant is a social worker employed by the Department of Family and Children's Services. I will refer to that department and its predecessors and successors as the Department. In 2000 the defendant was a senior social worker on the Care for Children team at the Department's Mirrabooka office. The social workers on the Care for Children team had care of children who were in out of home care, that is children who were not living at home with their family. The defendant was the case manager for approximately 30 children. One of them was a ward of the State who I will refer to as Robert. In March 2000 Robert was 13-years-old. He was living with a foster carer, Joy Strowger. The defendant was Robert's case manager until she left the Department's Mirrabooka office at the beginning of May 2000.
Robert referred to RFS Programme
4 Joan Bender is a teacher from the Western Australian Education Department. In 2000 she was an Education Officer with the Department. She became responsible for Robert's educational needs. She monitored Robert's academic performance by contact with his school. She liaised with Robert's case worker, the defendant. In February 2000 Ms Bender was aware of the RFS programme. At some time before 11 February 2000, Ms Bender met with the defendant. Ms Bender said to the defendant that she had spoken to Robert's teachers at his school and his foster carer and they had said that Robert was having difficulties with his reading. Ms Bender suggested that Robert be assessed by the RFS programme. Ms Bender telephoned the RFS clinic and enquired about the availability and cost of the programme. On 11 February 2000 Ms Bender sent an e-mail to the defendant in which she said that an appointment had been made for Robert on 14 February, that the cost was
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- $60 for assessment and $30 per session and it was recommended that 10 sessions be the minimum.
5 On 14 February the plaintiff assessed Robert. On 21 February Ms Bender sent an e-mail to the defendant. Ms Bender said that Ms Strowger had taken Robert for assessment at the RFS clinic and had phoned Ms Bender to say how impressed she was with the plaintiff who did the assessing. Ms Bender said she was a bit concerned that the plaintiff discussed other concerns about Robert but stated that Ms Strowger "appears ecstatic that she considers Robert as dyslexia as well as attachment disorder". Ms Bender went on to say that:
"This offer of clinical diagnosis on limited information is a bit 'iffy' whether accurate or not, but it got [Ms Strowger] on side."
6 Ms Bender suggested that the defendant get a request through her supervisor for the cost of the assessment and the first 10 sessions.
7 On 2 March 2000, that is after the initial assessment, the defendant applied for funding for Robert to attend the programme. The application for funding was approved.
8 Ms Gomis describes herself as an accredited provider. She teaches children with reading difficulties. She tutored Robert using the RFS programme. She commenced the programme on 1 March 2000. She taught Robert thereafter at lessons approximately one week apart until 5 April. Robert was then absent for about five weeks before Ms Gomis gave him a further three lessons on 15 May, 26 May and 16 June 2000.
Defendant Decides not to Approve Further Funding for Lessons for Robert
9 Some time after the application for funding had been approved the defendant received an invoice for Robert's participation in the programme. Attached to the invoice was a pamphlet entitled "The Solomon Method, Reading for Sure". The pamphlet describes reading difficulties experienced by some children and briefly describes the Solomon method for teaching reading. The pamphlet includes a photograph of the plaintiff and a brief biographical reference to her.
10 When the defendant received the pamphlet it triggered a recollection about the plaintiff. In evidence the defendant said that it triggered a recollection that there may have been a problem in the past related to the plaintiff's dealings with the Department. The defendant consulted with her casework supervisor, Rosina Pruiti. Ms Pruiti suggested that they
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- speak to Thomas Minto. Mr Minto is and was a clinical psychologist employed by the Department. He is the team leader of the Northern Psychology Assessment and Treatment Services team. The defendant spoke to Mr Minto at the Mirrabooka office. She explained that Robert was attending the RFS programme and asked Mr Minto if there was anything that she should be aware of in respect to the plaintiff. In her evidence the defendant said that Mr Minto indicated that there had been a problem in the past and that he did not believe that the plaintiff was on the Department's list of approved practitioners. Mr Minto suggested that the defendant should contact Grey Searle who was then the acting principal psychologist for the Department.
11 In his evidence Mr Minto said that the defendant asked him whether there had been any difficulties with the plaintiff and in response he said that the child should not be sent to the plaintiff and that the plaintiff was not on the approved list of psychologists for the Department. Mr Minto said that he said to the defendant that the Department would not engage the services of the plaintiff.
12 The defendant then attempted to contact Mr Searle. On 4 April the defendant sent an e-mail to Mr Searle in which she said that one of her wards had been referred to the RFS programme on the recommendation of the education officer. The defendant said that she was not aware the programme was written by the plaintiff and that the plaintiff had no involvement in the service delivery once the assessment was made. The defendant said that the reason she was checking with Mr Searle is that: "I am advised there was some past difficulty with Dr Solomon and she may have been deregistered as a recommended private practitioner". The defendant asked whether there were any implications concerning the RFS programme that she should be mindful of.
13 On 17 April Mr Searle replied. He said that the plaintiff was not on the Department's register and would stay so. Mr Searle said that he would have concerns if the service being provided in any way involved psychological intervention whether directly by the plaintiff or under her supervision. Mr Searle said that the core issue was the value of the programme for the child. The only remaining query was whether the defendant had any idea what type of assessment the plaintiff did. If the assessment was with regard to an educational programme then Mr Searle assumed the assessment was not psychological or for psychological intervention. That being the case Mr Searle said that the core issue was whether the programme had a promise of help for the child's educational performance and if it did it was worth a try.
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Defendant Speaks to Ms Strowger
14 Some time after 17 April the defendant visited Robert and Ms Strowger at her home. The defendant said in evidence that Robert seemed to be very disinterested in the programme and Ms Strowger commented that he had lost motivation. Ms Strowger said to the defendant that the programme was not working, that Robert had lost interest and that he was not retaining anything and something to the effect that she did not think it was worth continuing. The defendant said that she was not going to apply for approval for any more lessons. The defendant said to Ms Strowger that the plaintiff: "is not on our list of approved practitioners". Ms Strowger asked why that was. The defendant said that she did not know. Ms Strowger persisted and the defendant was becoming uncomfortable. The defendant said: "I believe there may have been some problem in the past".
15 In her evidence Ms Strowger gave a different account of what was said at that meeting. Ms Strowger said that the defendant had said that she did not think she would be able to get more funding as she had had trouble in the past. She asked the defendant what sort of trouble and the defendant had said that it was trouble getting funding for the programme as the plaintiff was not registered with the Department as one of their practitioners.
16 I prefer the evidence of the defendant as to her conversation with Ms Strowger. The defendant's evidence is consistent with the evidence of Ms Gomis that Ms Strowger subsequently said to her that Robert was not going to continue with the lessons because there was a problem with the plaintiff and that: "They've had a lot of problems with [the plaintiff] in the Department".
17 The defendant's evidence is also consistent with a handover note of 26 April 2000 she wrote to the case worker who took over the responsibility for Robert when the defendant left the Department's Mirrabooka office. The handover note says that the RFS lessons would not be further extended as the plaintiff is not an "approved private practitioner" and that Ms Strowger had been advised of this.
18 The defendant's evidence is also consistent with the evidence of Ms Gomis and the case record notes for Robert kept by Ms Gomis. Those notes record that on 15 May 2000 Ms Strowger commented that only two more lessons were to be approved by the welfare agency because the welfare service had had trouble with the plaintiff before.
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19 Furthermore, the defendant's evidence is consistent with her pleading in par 10.14 of her defence.
Defendant's Statement Repeated
20 On 15 May 2000 Ms Strowger took Robert to Ms Gomis for a lesson. In her evidence-in-chief Ms Gomis said that Ms Strowger had said that she did not think she was coming back. Ms Gomis asked her why, what is the problem. Ms Strowger said that the problem was with the plaintiff. Ms Gomis said: "What do you mean?" Ms Strowger said: "They've had a lot of problems with [the plaintiff] in the Department". Ms Gomis said that Ms Strowger said that the plaintiff was not on their approved list.
21 Ms Gomis said that after the discussion with Ms Strowger on 15 May 2000 she telephoned the plaintiff's office. She spoke to Pauline Sharpe. Ms Sharpe is an office administrator employed by the plaintiff. Ms Gomis' evidence is that she said to Ms Sharpe that the carer had just left and she had been having some problems. "She said she's not going to continue because there's problems with [the plaintiff] in the Department". Ms Gomis said that she intended Ms Sharpe to pass that message onto the plaintiff. Ms Gomis needed to speak to the plaintiff so that she could ask the plaintiff's advice on how to handle the problem but the plaintiff was busy. Ms Sharpe said in evidence that Ms Gomis had telephoned her to say that a student had withdrawn that day in adverse circumstances. Ms Gomis had said that the boy's carer had said that the boy was no longer coming and that she had been told that the Department had had problems with the plaintiff in the past.
22 Ms Sharpe then spoke to Valerie Dean. Ms Dean was at the time employed by the plaintiff to do secretarial and accounting work. In her evidence Ms Sharpe said that she passed on to Ms Dean the information that she had received from Ms Gomis. Ms Sharpe said that she did so because Ms Dean was the lady doing the accounts so she would need to know for accounts purposes. In her evidence Ms Dean said that Ms Sharpe told her about what had happened in the Noranda centre with a particular client, Robert, and the foster carer. Ms Dean could not remember the exact words Ms Sharpe spoke to her. Ms Dean's recollection is that the substance of what Ms Sharpe said to her was that the boy would not continue and it was because of something that had happened in the past.
23 On 26 May Robert attended a further lesson with Ms Gomis. Robert was accompanied by Ms Strowger. The plaintiff visited for the purpose of speaking to Ms Strowger. There was a confrontation between the plaintiff
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- and Ms Strowger. It is not necessary to go into the detail of that confrontation.
Plaintiff Speaks to Defendant
24 On 2 June 2000 the plaintiff telephoned the defendant. In her evidence-in-chief the plaintiff did not at first set out clearly what was said in that telephone conversation. She said: "I told her what I had heard and how I had felt about it and asked her from what source she would speak such words and she told me it was the pamphlet". The plaintiff said she asked the defendant to identify what it was on the pamphlet that caused her to say the words complained of and remove the child from the programme. According to the plaintiff the defendant replied: "It made me believe that you were not on the list of practitioners used by the Department". The plaintiff said she asked the defendant whether she had said that there were problems in the past and the defendant said "yes". The plaintiff asked: "What problems?" and the defendant replied "I don't know".
25 In cross-examination the plaintiff said that the defendant had said that the plaintiff was "not an approved practitioner for use by the Department and therefore we won't be continuing with the reading lessons". The plaintiff further said that the defendant said there were problems in the past and she said that she did speak those words. In cross-examination counsel then pressed the plaintiff for her best recollection of what was said in the telephone conversation. The plaintiff said that she phoned the defendant in order to find out what and why she had said what she did to Ms Strowger. The plaintiff said that the defendant had said that she was not an approved practitioner "and therefore we won't be continuing with the reading lessons". Counsel then moved on to another issue.
26 In her witness statement the defendant referred to her conversation with the plaintiff on 2 June 2000. In that statement the defendant said that she had said to the plaintiff: "You are not an approved practitioner for use by the Department and therefore we won't be continuing with the reading lessons". The defendant makes no reference to having admitted, or referred, to what she had earlier said to Ms Strowger. In her oral evidence the defendant said that in the telephone conversation the plaintiff "wanted to establish precisely what I had said".
27 On 26 May 2000 Ms Bender wrote a case note that the plaintiff was concerned that the Department was still spreading stories about her work that were impacting on her credibility. The note said that Ms Strowger
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- had told Ms Gomis that the Department did not consider the plaintiff to be appropriately qualified and the plaintiff was concerned about that. The case note went on to say that Ms Bender had discussed this problem with the case manager and senior social worker as the possibility of action by the plaintiff against the Department seemed highly likely. The note further recorded that the senior social worker suggested a letter be sent to the plaintiff outlining the current situation which was that the plaintiff was engaged to provide a reading service to some of the children in care which was unrelated to past issues between the plaintiff and the Department and furthermore to state that although the plaintiff was no longer registered with the Department as a preferred provider for psychological services this was not the case with the educational services. Ms Bender believed that the case manager referred to was the case manager who took over from the defendant when the defendant left the Mirrabooka office. Ms Bender thought that the senior social worker referred to in the note would have probably been Ms Pruiti. Ms Bender said she did not think the letter was ever sent. In cross-examination the defendant said she was not aware of her superiors suggesting that she write a letter to the plaintiff of the sort referred to in Ms Bender's case note.
28 Robert had his last lesson with Ms Gomis on 16 June 2000. That completed the set of 10 lessons.
The Plaintiff's Pleaded Case
29 The plaintiff pleads that the defendant published to Ms Strowger the following words: "The Department has had trouble with [the plaintiff] before and consequently would discontinue the contract for the treatment of [Robert] in [the plaintiff's] clinic".
30 In actions of slander, though precise words must be alleged in the statement of claim, the plaintiff does not have to prove that these precise words were in fact published. It is sufficient if she proves a material and defamatory part of them or words which are substantially to the same effect: "Gatley on Libel and Slander", 10th ed, [32.14].
31 I find that the defendant spoke to and published to Ms Strowger words to the following effect: "I am not going to apply for approval for any more lessons. [The plaintiff] is not on our list of approved practitioners". In answer to Ms Strowger saying "Why is that?" the defendant then said words to the effect: "There may have been some problem in the past". I find that the words spoken by the defendant to Mr Strowger are words substantially to the effect pleaded in the statement of claim.
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32 The plaintiff pleads that the words complained of carried the following defamatory imputations:
1. Doubt existed in respect to the plaintiff's character.
2. The plaintiff was not a suitable person to carry out her profession.
3. The treatment programme directed by the plaintiff was defective.
33 The plaintiff submitted that the words "problems (or trouble) with Dr Solomon in the past" may extend across a vast spectrum of imagination as wide as whatever can be conjured up in the word "problem" or "trouble". The plaintiff submitted that in the professional context of not being on a list of approved practitioners, the words must mean unfit to practice. Further, the plaintiff submitted, the words followed by the action of discontinuing the reading sessions are capable of conveying the meaning that something is wrong with the plaintiff's character and the words "in the past", without more, would, in today's social and criminal climate likely evoke notions of criminality such as paedophilia.
34 I do not accept that latter submission. In determining the meaning of the words complained of, the Judge as tribunal of fact, applies the standard of the ordinary, reasonable person: What would he or she understand to be the meaning conveyed by the words complained of? The ordinary reasonable person is the hypothetical referee who determines meaning. He or she is presumed to be neither avid for scandal nor to be an innocent abroad, neither unduly suspicious nor unduly naive. A distinction needs to be drawn between the person's understanding of what the speaker is saying and the judgments or conclusions which the person may reach as a result of their own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable listener would understand it in that sense, drawing on her own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it might excite in some people a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition: Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 per Mason J at 301.
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35 The words spoken by the defendant relate to the plaintiff's practice as a psychologist. There is nothing in the content or context of the words to reasonably give rise to an inference that the defendant was speaking about the plaintiff in any other capacity. The context in which the words were spoken would lead an ordinary reasonable listener to understand that the defendant was referring to problems between the Department and the plaintiff concerning the plaintiff's professional work or practice. An ordinary reasonable listener would understand the defendant to have meant that the plaintiff had in the past conducted herself in a way that has caused the Department to remove her from its list of approved practitioners. The words spoken by the defendant were disparaging of the plaintiff in her profession.
36 Insofar as the first imputation pleaded refers to the plaintiff's character in a capacity other than in her practice as a psychologist, the words published by the defendant do not carry that meaning. The words spoken by the defendant do not give rise to the first pleaded imputation.
37 I turn to consider the third pleaded imputation. An ordinary, reasonable listener would not understand the words spoken by the defendant to mean that the treatment programme directed by the plaintiff was defective. There was nothing in the words spoken to point to the problem that had existed in the past being that the plaintiff's treatment programme was defective. Furthermore, such an imputation is not defamatory. The pleaded imputation relates to the plaintiff's product or technique and not to the plaintiff. Where a criticism relates solely to the plaintiff's product and not to the plaintiff it will not be defamatory. In the case of professionals it is harder to divorce the product or technique from the producer. The question is often whether the criticism of a professional's technique amounts to an imputation of a lack of competence. To say that a particular programme directed by the plaintiff is defective is a criticism of the product not the plaintiff.
38 I find that the words complained of give rise to the meaning that the plaintiff had conducted herself in her professional practice in a way that reasonably caused the Department to remove her from its list of approved practitioners. That is a permissible variation of the second imputation pleaded by the plaintiff. The words published by the defendant disparaged the plaintiff in her profession as a psychologist. The imputation is likely to damage the plaintiff's reputation in relation to her profession and is actionable without proof of special damage.
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The Alleged Republications
39 The plaintiff pleads that Ms Strowger repeated to Ms Gomis the words complained of that were spoken to her by the defendant. The plaintiff further pleads that Ms Gomis repeated the words complained of to Ms Sharpe and Ms Sharpe repeated them to Ms Dean.
40 At the commencement of the trial the statement of claim did not expressly plead that the defendant was responsible for each of the repetitions of the words complained of that I have referred to. I considered that the pleadings disclosed that it was the intention of the plaintiff to claim that the defendant was responsible for the alleged republications and that it was the plaintiff's lack of legal expertise in pleading her case that resulted in the pleadings not expressly saying so. I permitted the plaintiff to amend her statement of claim to add new paragraphs as follows:
"9A. The defendant intended and authorised Ms Strowger to repeat the words complained of to Ms Gomis, Ms Sharpe and Ms Dean.
9B. The repetition of the words complained of, or the substance of them, as pleaded in paragraphs 5, 6, 7 and 8 was the natural consequence of the publication of the words complained of by the defendant to Ms Strowger."
41 For a defendant to be liable for republication by another person, there is no longer a requirement that the defendant has authorised the publication. It is sufficient that the circumstances of the defendant's publication was such as to make republication reasonably foreseeable. In Erglis v Buckley [2004] QCA 223; [2004] 2 QDR 599, Fryberg J said at [75] that to recover damages for the republication of a defamation the plaintiff must prove that the republication was caused by the original publication. That is, the plaintiff must demonstrate a chain of causation between the original wrongful act and the damage suffered. The plaintiff may prove that republication was caused by the original publication by demonstrating either that the original publisher foresaw that further publication would probably take place or that a reasonable person in his or her position ought to have so foreseen.
42 In McManus v Beckham [2002] 1 WLR 2982, Waller LJ held that a defendant will be legally responsible for republication where a reasonable person in the position of the defendant should have anticipated that there was a significant risk that what the defendant said would be repeated.
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43 The defendant informed Ms Strowger that she would not be approving any more lessons for Robert. The defendant submitted that the Department had only engaged the RFS clinic for 10 lessons and the decision not to approve further lessons did not mean that the lessons were being terminated. However, the 10 lessons were only an initial course. It was anticipated by all concerned that if the lessons were a success then Robert would or might undergo further lessons. A reasonable person in the position of the defendant should have anticipated that there was a significant risk that Ms Strowger would repeat to the teacher giving the lessons to Robert what had been said to her by the defendant. A reasonable person would expect Ms Strowger to offer some explanation to the teacher why Robert was not to have further lessons and a reasonable person would expect that Ms Strowger would repeat to the teacher the reasons stated to her by the defendant. Furthermore, a reasonable person in the defendant's position ought to have foreseen the republication by Ms Strowger to the teacher of what the defendant had said to her. For those reasons, the defendant is responsible at law for the republication by Ms Strowger to Ms Gomis.
44 I find that the defendant is not responsible for the republications complained of by Ms Gomis to Ms Sharpe and Ms Sharpe to Ms Dean. There was no need for Ms Gomis to inform the accountant or office administrator in the plaintiff's office that Robert would not be having any further lessons after the initial set of 10. Furthermore, if there was a need for the teacher to inform the office administrator or accountant that Robert would have no further lessons and it was reasonably foreseeable that would happen, there was no reason for the teacher to inform those persons of the reason why there was to be no further lessons, let alone that no further funding was to be approved because the plaintiff was not on the Department's list of approved practitioners because of problems with the plaintiff in the past. A reasonable person in the position of the defendant ought not to have foreseen that Ms Gomis would repeat to Ms Sharpe or Ms Dean the words she had spoken to Ms Strowger. Furthermore, a reasonable person in the position of the defendant should not have anticipated that there was a significant risk that what she had said to Ms Strowger would be repeated to an accountant or office administrator in the plaintiff's office.
Qualified Privilege
45 The defendant has pleaded that the publication by the defendant to Ms Strowger and the republication to Ms Gomis were each a publication on an occasion of qualified privilege.
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46 A statement is made on an occasion of qualified privilege where the maker of the statement has a legitimate duty or interest in making the statement and the recipient or recipients of the statement have a legitimate duty or interest in receiving it.
47 The duty may be legal, social or moral. A social or moral duty has been defined as a duty recognised by English (Australian) people of ordinary intelligence and moral principle: Watt v Longsdon [1930] 1 QB 130. The test is what people of ordinary intelligence and moral principle would have done in the circumstances? If such people would feel themselves under a duty to make the statement, the publication will be privileged. The circumstances that constitute a privileged occasion can themselves never be catalogued and rendered exact. In order to apply the principles, a court must make a close scrutiny of the circumstances of the case, of the situation of the parties, of the relations of all concerned and of the events leading up to and surrounding the publication: Bashford v Information Australia (Newsletters) Pty Ltd [2004] HCA 5; 204 ALR 193 at [10].
48 The circumstances leading to the publication include the following. The defendant saw a brochure referring to the plaintiff. It triggered a recollection that there may have been a problem in the past relating to the plaintiff's dealings with the Department. The defendant made enquiries within the Department. She was informed by the district psychologist that there had been a problem in the past with the plaintiff and that he did not believe the plaintiff was on the Department's list of approved practitioners. The defendant decided not to apply for approval for any more lessons for Robert. The defendant visited Ms Strowger in the course of her duties as Robert's case worker. There was a discussion about Robert and the RFS lessons. The defendant told Ms Strowger that she was not going to apply for approval for any more lessons. The defendant told Ms Strowger that the reason she was not going to apply for approval for any more lessons was that the plaintiff was not on the Department's list of approved practitioners. Ms Strowger asked the defendant why that was. The defendant had first replied "I don't know". Ms Strowger persisted and the defendant became uncomfortable. The defendant said: "I believe there may have been some problem in the past".
49 In cross-examination the defendant said she decided not to apply for any further funding for RFS lessons for a number of reasons. I find that the principal reason why the defendant made that decision was because of her concern that the plaintiff had at least initially made some psychological assessment of Robert and the plaintiff was not on the
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- Department's list of approved psychology practitioners because of the problem in the past arising from the criticism by a Children's Court Magistrate of a report by the plaintiff.
50 The defendant was bound to inform Ms Strowger that she had decided not to approve funding for further RFS lessons for Robert. The defendant had a duty to inform and an interest in informing Ms Strowger of the reason why she had decided not to approve further funding for lessons for Robert. Ms Strowger was the foster carer with immediate responsibility for Robert. She had an interest in receiving the communication.
51 There is another way of looking at this issue. There was an established relationship between the defendant and Ms Strowger. The established relationship between them, by its very nature, involved reciprocal interest and/or duties: see Kearns v General Council of the Bar [2003] 1 WLR 1357 at [30] and [32] per Simon Brown LJ.
52 For those reasons, I find that the publication by the defendant to Ms Strowger was made on an occasion of qualified privilege.
53 I turn now to consider whether the republication by Ms Strowger to Ms Gomis attracts a defence of qualified privilege.
54 Ms Strowger was the person dealing with Ms Gomis who was responsible for Robert. Robert was not going to continue with the lessons. Ms Gomis had been teaching Robert and assisting him to improve his reading. There are many potential reasons why the lessons were not to be continued. Some of those might reflect on Ms Gomis. She had an interest in knowing why Robert was not going to continue with the lessons. The decision not to continue with the lessons was not because of any deficiencies or failings on the part of Ms Gomis. Ms Strowger had a social or moral duty to inform Ms Gomis of the reasons why the lessons were not to continue. Furthermore, there was an established relationship between Ms Strowger and Ms Gomis. The established relationship between them by its very nature involved reciprocal interests and/or duties. The communication by Ms Strowger to Ms Gomis was made on occasion of qualified privilege.
Malice
55 The plaintiff has pleaded malice. Malice if proved defeats a defence of qualified privilege. The burden of proving it lies with the plaintiff. In essence, malice, for the purposes of defamation law, is a dominant
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- improper motive for publishing the statement. Malice often equates to the defendant knowing that what she is publishing is false, or being indifferent as to whether it is true or false. Malice is a subjective matter and is dependent on what is going through the defendant's mind at the time of publication. The fact that the defendant ought to have known that what she published is false is insufficient if she was in fact unaware.
56 The plaintiff submitted that prior to making the statement complained of to Ms Strowger the defendant did not make proper enquiry about why the plaintiff was not on the Department's list of approved practitioners. The plaintiff submitted that the defendant failed to speak to the plaintiff and see what the plaintiff had to say about that. The plaintiff submitted that the defendant did nothing to find out if the plaintiff was practising psychology in her private clinic or what sort of psychological assessment of Robert she was undertaking. The plaintiff submitted that the failure to enquire properly is evidence of malice. Further, the plaintiff submitted that the defendant failed to act upon advice from a senior social worker to send a letter to the plaintiff about the matter. The plaintiff submitted that was evidence of malice because it showed that the defendant did not "want to solve this problem". The plaintiff submitted that the defendant wanted to find a way that she could remove the plaintiff because of the stories that she had heard circulating. The plaintiff submitted that the defendant felt she was the one who was going to do something about it and remove the plaintiff from the Department's services.
57 I have considered all of the submissions made by the plaintiff and the pleading of malice set out in her reply. The plaintiff has not established malice. The plaintiff has not established that the defendant had no honest belief in the truth of the statement she made to Ms Strowger. The defendant went to some trouble to make enquiries within the Department about those matters. There was no obligation on the defendant to go behind what she was told by Mr Minto and enquire whether the Children's Court Magistrate really did criticise a report by the plaintiff and if so whether that criticism was well founded. There was no obligation on the defendant to make enquiry of the plaintiff about those matters.
58 The plaintiff has not established that the defendant acted out of any improper motive. The plaintiff has not proved that the defendant was actuated by malice.
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Conclusion
59 In the course of the trial it appeared that the plaintiff was concerned about being removed from the Department's list of approved practitioners. She was concerned why that had happened. She was concerned that that had been done by people from within the Department for no good reason. When the plaintiff learned of Mr Minto's evidence that the problem in the past with the plaintiff arose from the criticism by a Children's Court Magistrate of a report written by the plaintiff she was concerned about the truth and accuracy of that position. None of those matters are in issue in this case. It is not to the point whether there were other members of the Department who harboured ill will towards the plaintiff which had caused her to be removed from the list of approved practitioners. The relevant issue is whether the plaintiff has established malice on the part of the defendant. She has not and hence the defence of qualified privilege succeeds.
60 For the reasons stated the plaintiff's claim must be dismissed.
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