The Australian Medical Association (WA) Incorporated v McEvoy [No 2]

[2012] WASC 416

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED -v- MCEVOY [No 2] [2012] WASC 416

CORAM:   LE MIERE J

HEARD:   18 SEPTEMBER 2012

DELIVERED          :   9 NOVEMBER 2012

FILE NO/S:   CIV 2243 of 2011

BETWEEN:   THE AUSTRALIAN MEDICAL ASSOCIATION (WA) INCORPORATED

First Plaintiff

PAUL CONSTANTINE BOYATZIS
Second Plaintiff

ROSANNA CAPOLINGUA
Third Plaintiff

BERNARD SYDNEY PEARN-ROWE
Fourth Plaintiff

AND

ROBERT JOHN MCEVOY
First Defendant

JENETTE PHLETA HEYDEN
Second Defendant

RAKABEE PTY LTD
Third Defendant

Catchwords:

Defamation - Practice and procedure - Application to strike out parts of statement of claim - Strike out principles - Subsequent publication - Aggravated damages - Turns on own facts

Legislation:

Defamation Act 2005 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 1 r 4B

Result:

Defendants' application dismissed
Plaintiffs have leave to amend statement of claim

Category:    B

Representation:

Counsel:

First Plaintiff                :     Mr M L Bennett

Second Plaintiff            :     Mr M L Bennett

Third Plaintiff               :     Mr M L Bennett

Fourth Plaintiff             :     Mr M L Bennett

First Defendant             :     Mr J D MacLaurin

Second Defendant         :     Mr J D MacLaurin

Third Defendant           :     Mr J D MacLaurin

Solicitors:

First Plaintiff                :     Bennett & Co

Second Plaintiff            :     Bennett & Co

Third Plaintiff               :     Bennett & Co

Fourth Plaintiff             :     Bennett & Co

First Defendant             :     Jarman McKenna

Second Defendant         :     Jarman McKenna

Third Defendant           :     Jarman McKenna

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

Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225

Barrett v Long (1851) 3 HLC 395; 10 ER 154

Bridgmont v Associated Newspapers Ltd (No 2) [1951] 2 KB 578

Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44

Cassell & Co Ltd v Broome [1972] AC 1027

Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB)

Clark v Ainsworth (1996) 40 NSWLR 463

Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB)

Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Gleaner Co Ltd v Abrahams [2004] 1 AC 628

Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254

McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86

Pearson v Lemaitre (1893) 5 Madd & G 700; 134 ER 742

Triggell v Pheeney (1951) 82 CLR 497

Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118

1. LE MIERE J:  The plaintiffs complain that a number of publications by the defendants defame them.  The defendants have applied to disallow or strike out [25.8] of the re‑amended statement of claim, which I will refer to as the statement of claim, on the grounds that it fails to disclose a reasonable cause of action or alternatively is embarrassing and prejudicial to a fair trial of the action.

Strike out principles

1. The plaintiffs amended their statement of claim pursuant to a consent order made on 16 April 2012, which in effect gave the defendants leave to apply to disallow or strike out the amendments.  An application to disallow amendments made without leave, or made with leave where leave to apply to strike out the amendments was given, may be made upon any of the grounds upon which a party could apply to strike out a pleading.  A statement of claim will only be struck out on the ground that it discloses no reasonable cause of action if the case of the plaintiff is so clearly untenable that it cannot possibly succeed:  General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125. A statement of claim may be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action. Material will not be struck out of a pleading merely because it is unnecessary or inelegantly pleaded. Unnecessary material will only be struck out of a statement of claim if it will cause embarrassment to the defendant or cause confusion or delay at trial. Whether a statement of claim will be struck out for lack of particularity will depend upon the circumstances of the case. The answer will be found in practical matters relating to the proper management of the case.

The statement of claim

1. The plaintiff complains of three publications.  The first (the April article), appeared in the April 2011 edition of the medical magazine entitled 'Medical WA Forum' (Magazine).  The April article was an editorial article entitled:  'The Boyatzis - Capolingua Partnership'.  The article examined claims of conflict of interest around Mr Boyatzis and Ms Capolingua, the second and third plaintiffs.  The article referred to a survey or e‑poll and said:

   First, amongst the 126 female GPs surveyed who had formed an opinion, around half agreed there was an ongoing conflict of interest (see survey results below).  Second, and of greater interest, only 37% of AMA members said they felt confident that AMA WA would deal with any conflict properly, which usually means they have past events in mind.  Doctors heading the AMA could hardly be happy with this lack of indorsement from colleagues.

   The second publication complained of (the internet article), is the publication of the April article on a website maintained by the third defendant.

2. The plaintiffs say that in their natural and ordinary meaning the April article and the internet article meant and were understood to mean that the first plaintiff, the Australian Medical Association (WA) Incorporated (AMA):

   1.is an association that conducts its affairs dishonestly;

   2.is an association that conducts its affairs unethically;

   3.is an association whose board members engage in bullying behaviour;

   4.is an association that conducts its affairs in such a manner as to allow or permit cronyism; and

   5.is an association that conducts itself in an unprofessional manner.

3. The third publication complained of is a letter which the defendants caused to be published to board members of the AMA with the subject heading:  'Re:  Defamation Proceedings' (the board member letter).  The letter refers to a letter written on behalf of the AMA to WA doctors to inform them of these proceedings.  The board member letter referred to an invitation from the AMA to the defendants to make an offer of amends and an offer by the defendants together with an invitation to meet informally to attempt to resolve the issues.  The letter said that the offer was rejected and continued:

   We have always been amenable to meet to attempt an informal resolution to these issues without the need for legal proceedings and remain willing to do so.

   The plaintiffs say that the board member letter meant and was understood to mean that the AMA is a litigious association.

4. The statement of claim also pleads that in the August 2011 edition of the Magazine the defendants published under the heading 'Beneath the Drapes' an article which was of and concerning the AMA.  The statement of claim does not plead that the August article is defamatory of the plaintiffs, or any of them, and does not plead that the plaintiffs, or any of them, have been injured or damaged by the publication of the August article.  Notwithstanding that, [25] pleads that the defendants' publication of the August article was improper, unjustifiable and lacking in bona fides, in a manner which has aggravated the hurt, damage and distress suffered by the plaintiffs.  The defendants have not objected to the pleading.  I take it to be a pleading that the defendants' publication of the August article is a matter which has aggravated the hurt, damage and distress suffered by the plaintiffs by reason of the publication of the April article, the internet article and the board member letter.

Paragraph 25

1. The defendants' objection to the amendments is, as I have said, the pleading of [25.8].  Paragraph 25 of the statement of claim pleads conduct by the defendants in reliance upon which the plaintiffs claim aggravated damages.  The relevant parts of [25] are as follows:

   25.The defendants' publication of the April article, the internet article, the August article and the broad member letter was and their conduct has been improper, unjustifiable and lacking in bona fides, in a manner which has aggravated the hurt, damage and distress suffered by the plaintiffs in that:

   …

   25.8As to the First Plaintiff only, following commencement of this action, the Defendants have published further defamatory publications of and concerning the First Plaintiff (set out below), being conduct that demonstrates the Defendants' lack of remorse for publication of the articles the subject of this action and their indifference towards this action:

   25.7.1.at page 1 of the April 2012 edition of the Magazine, the Defendants and each of them published the article entitled 'Defamation Update' (also available for download on the Website), of and concerning the First Plaintiff, which reads as follows:

   As we go to press, AMA members, through the Australian Medical Association WA Incorporated (AMA WA), are continuing defamation action against Robert McEvoy, Jenny Heyden, and Medical Forum magazine.  The Supreme Court's recent decision to strike out part of the statement of claim applies to a relatively small part of a larger claim instituted by AMA WA, Paul Boyatzis, Bernard Pearn‑Rowe and Rosanna Capolingua.  We will continue to defend the matter and while the lawyers work this out at great expense to us all, we continue to examine issues important to the profession.

   25.7.2.at page 3 of the April 2012 edition of the Magazine, the Defendants and each of them published an article entitled 'How Doctors Feel Represented' (also available for download on the Website), of and concerning the First Plaintiff.  A copy of the article is attached hereto and marked 'A'; and

   25.7.3.at page 6 of the April 2012 edition of the Magazine, the First Defendant wrote and the Defendants and each of them published an entitled 'Doctors Having Their Say' (also available for download on the Website), of and concerning the First Plaintiff.  A copy of the article is attached hereto and marked 'B'.

Compensatory damages

1. Ordinary compensatory damages are awarded to console a defamed plaintiff and to vindicate the plaintiff's reputation:  Uren v John Fairfax & Sons Pty Ltd (1966) 117 CLR 118, 150 (Windeyer J). Consolation itself can be divided into two elements: consolation for personal distress and reparation for harm to reputation: Carson v John Fairfax & Sons Ltd (1993) 178 CLR 44, 60 (Mason CJ, Deane, Dawson & Gaudron JJ). The element of consolation for personal distress or for hurt and injury to feelings is only available to individuals.

Aggravated compensatory damages

1. Ordinary compensatory damages can be increased by aggravated damages.  Aggravated damages are still compensatory; the award is increased to match the greater harm caused.  A precondition to the award of aggravated damages is that the conduct of the defendant complained of is lacking in bona fides, or is improper or unjustifiable:  Triggell v Pheeney (1951) 82 CLR 497. Conduct of the defendant which aggravates the plaintiff's damages need not be malicious. In Triggell v Pheeney the High Court said that the conduct of the defence may be taken into consideration not only as evidence of malice at the time of publication or afterwards but also as improperly aggravating the injury done to the plaintiff:  Triggell v Pheeney (514) (Dixon, Williams, Webb & Kitto JJ).

2. Section 36 of the Defamation Act 2005 (WA) directs the court in awarding damages to disregard the malice or other state of mind of the defendant except to the extent that it affects the harm sustained by the plaintiff.

Defendants' contentions

1. The defendants accept that a corporate body may be awarded aggravated damages.  The defendants say that the AMA's claim for aggravated damages in [25.8] of the statement of claim cannot be maintained for a number of reasons.  First, the introductory text of [25] says that the matters complained of have aggravated the hurt, damage and distress suffered by the plaintiffs.  The AMA, being a corporate body, cannot recover damages for hurt and distress.  Secondly, a corporation may not recover aggravated damages by reason of further publication of defamatory material after the defamation sued upon, because such repetition of the defamation is relevant on the issue of damages only as showing express malice.  Express malice is a ground for aggravation of the plaintiff's damages but only by way of being an additional hurt to the plaintiffs injured feelings and a corporation cannot recover damages for injured feelings.  Thirdly, the defendants say that the statement of claim does not plead any material facts that link the subsequent publications to the damage to the AMA's reputation caused by the publications sued upon.

Pleading of hurt and distress

1. The plaintiffs accept that an award of aggravated damages cannot be made on the basis of conduct of the defendants that aggravated the hurt and distress suffered by the plaintiffs. The AMA does not claim to be entitled to aggravated damages for additional hurt and distress suffered and counsel offered to make that clear by inserting the words, 'second to fourth plaintiffs and aggravated the damage suffered by the first plaintiff' in substitution for the words 'the plaintiffs' in [25] or words to a similar effect. I will give the plaintiffs leave to amend the statement of claim in that way. That removes the first of the defendant's objections to [25].

Damages aggravated by subsequent publication

1. The authors of Tobin and Sexton Australian Defamation Law and Practice at [22,065] say that the plaintiff may rely in aggravation of damages on the publication by the defendant on other occasions of statements that are allegedly false and have some connection with the allegations in the matter complained of.

2. The defendants say that the repetition of the defamatory material, or of similarly defamatory material, by the defendant after the publication sued on may aggravate damages only by way of causing additional hurt to the plaintiffs' feelings.  However, Tobin and Sexton at [22,035] do not support that contention.  The authors refer to the statement of principle by Knox CJ and Gavan and Stark JJ  in the Herald and Weekly Times Ltd v McGregor (1928) 41 CLR 254, 263 approved in Triggell v Pheeney by Dixon, Williams, Webb and Kitto JJ at 513 - 514:

   In point of law, the learned trial judge would have been right if he had instructed the jury that in assessing damages they were entitled to take into consideration the mode and extent of the publication, that the defamatory statement was never attracted, but no apology was ever offered to the respondent, and that the statement had been persisted in to the end; because all the circumstances might, in the opinion of the jury, increase the area of publication and the effect of the libel on those who have read it or who would thereafter read it, might extend its vitality and capability of causing injury to the plaintiff.

   Tobin and Sexton say that that statement is contrary to the contention referred to earlier and the better view is that aggravated damages are not limited to increased hurt to feelings.  The learned authors say that there is no reason in principle to justify such a limitation:

   Aggravated compensatory damages are usually awarded only in relation to the plaintiff's feelings.  They are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well.  Waterhouse v Station 2GB Pty Ltd (1985) 1 NSWLR 58, 75.

3. The defendants rely upon the judgment of Blackburn CJ in Comalco Ltd v Australian Broadcasting Corporation (1985) 64 ACTR 1. The ABC broadcast a film on Four Corners that was defamatory of Comalco. In aggravation of damages Comalco relied on four instances of further publication by the ABC of material having the same defamatory characteristics as the telecast. Blackburn CJ held that those further publications were not a ground for increasing the damages which should be awarded to Comalco for the following reasons:

   6.62There is ample authority that the repetition of publication of the defamatory material, or of similarly defamatory material, by the defendant after the publication complained of in the action, and right up to the time of trial, may be admissible in evidence as being relevant to general damages, by way of showing that the defendant was at the time of the publication complained of, actuated by express malice.  I need refer only to Barrett v Long (1851) 3 HLC 395 (where the additional publications were before that which was the basis of the action, and not after it); Pearson v Lemaitre (1893) 5 M & G 700; see a very learned note by Spencer Bower:  The Law of Actionable Defamation, 2nd ed, pp 160, 161; and Bridgmont v Associated Newspapers Ltd [1951] 2 KB 578. What is, in my opinion, clear is that the evidence of such repetition of the defamation is relevant, on the issue of damages, only as showing express malice. Express malice is, in general, a ground for aggravation of a plaintiff's damages, but only by way of being an additional hurt to the plaintiff's injured feelings. That cannot apply to a plaintiff which is a corporation. Repetition of the defamatory material may, of course, increase the harm to the reputation of a corporation, but its remedy must, on the authorities, be to sue in respect of the repetition. This may not be entirely logical, but is clear on the authorities.

   6.63For this reason, I consider that the defendant's repetition of the defamatory material is not relevant to the assessment of damages in this case.

4. In Barrett v Long (1851) 3 HLC 395; 10 ER 154, the House of Lords had held that evidence of a libel published before the defamation complained of had rightly been admitted to aggravate the damages. In Pearson v Lemaitre (1893) 5 Madd & G 700; 134 ER 742, the plaintiff tendered in evidence two defamatory letters published by the defendant after the defamation complained of and after the action had been commenced, both of which were actionable. The plaintiff recovered substantial damages. The defendant moved for a new trial on the ground that the evidence had been wrongly received. In dismissing the defendant's motion Tindal CJ laid down what Spencer Bower in 'A Code of the Law of Actionable Defamation' (2nd ed), described as the following clear and comprehensible principle:

   We think that the spirit and intention of the party publishing a libel are fit to be considered by a jury, in estimating the injury caused to the plaintiff, and that evidence tending to prove it cannot be excluded simply because it may disclose another and a different cause of action.

5. In Bridgmont v Associated Newspapers Ltd (No 2) [1951] 2 KB 578, the Court of Appeal of England and Wales held that evidence of slanders subsequent to a libel was relevant to and admissible in the libel action at least on the question of damages. Somervell LJ said that there was no issue of malice raised by the pleadings but that was not necessary in order to make the evidence of the slanders relevant to damages. In McCarey v Associated Newspapers Ltd (No 2) [1965] 2 QB 86, 107, Diplock LJ said that injury to feelings, but not injury to reputation, may be aggravated by the defendants' conduct.

6. The issue I am considering was addressed by Gray J in Collins Stewart Ltd v The Financial Times Ltd [2005] EWHC 262 (QB) . Gray J described the issue in that case:

   The question to be decided is whether, and if so in what circumstances, a corporate claimant in a libel action is entitled to increase the damages recoverable in respect of the single publication complained of by relying on subsequent publications which are not themselves sued on as separate causes of action [1].

   Gray J said that in certain circumstances the libel claimant may be entitled to aggravated damages in addition to basic compensatory damages but neither side had been able to cite an authoritative statement defining or delimiting the circumstances in which an award of aggravated damages may be recoverable [28]. After an historical examination of the circumstances in which such awards have previously been made, Gray J reached the following conclusions. The defining characteristic of an award of aggravated damages is that its function is to provide a claimant with compensation (solatium) for injury to his or her feelings caused by some conduct on the part of the defendant for which the defendant is responsible [30]. The essence of an award of aggravated damages in libel is not making good damage to the claimant's reputation as such but rather compensating the claimant for the extra injury to his or her feelings. If that be the correct analysis of the proper function of aggravated damages it follows that aggravated damages are in principle not available to a corporate claimant because a company has no feelings to injure and cannot suffer distress.

Australian authorities

1. In Herald and Weekly Times Ltd v McGregor the High Court held that in assessing damages the jury were entitled to take into consideration that the defamatory statement had been persisted in to the end because that might in the opinion of the jury increase the effect of the libel on those who had read it or who would thereafter read it and might extend its vitality and capability of causing injury to the plaintiff (263).

2. In Triggell v Pheeney the High Court approved the statement of principle in McGregor and said that the conduct of the defence may be taken into consideration not only as evidencing malice but also as improperly aggravating the injury done to the plaintiff, if there is a lack of bona fides in the defendant's conduct or it is improper or unjustifiable (514).

1. In Waterhouse v Broadcasting Station 2GB at 75 Hunt J said:

   Aggravated compensatory damages are usually awarded only in relation to injury to the plaintiff's feelings:  McCarey v Associated Newspapers Ltd; Cassell v Broome; and they are not, however, necessarily so limited, and there may be conduct which has the effect of increasing the injury to the plaintiff's reputation as well.

2. In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, the New South Wales Court of Appeal confirmed that the pleading of defences could be very damaging to the plaintiff in the understanding of those who became aware of them. That is, the conduct of the defendant increased the injury to the plaintiff's reputation caused by the publication sued upon.

3. In Clark v Ainsworth (1996) 40 NSWLR 463, Sheller JA adopted the statement by Lord Diplock in Cassell & Co Ltd v Broome [1972] AC 1027, 1124 that persistence by the defendant in a plea of justification or a repetition of the original libel by him at the trial can increase the damages, because by doing so the defendant prolongs the period in which the damage from the original publication continues to spread and by giving to it further publicity at the trial the defendant extends the quarters that the poison reaches. Thus, the defendant's conduct between the date of publication and the conclusion of the trial may thus increase the damages.

4. The Australian authorities establish that aggravated damages are not limited to increased hurt to feelings.  The pleading of defences may prolong or add to the potency of the defamation and its effect on the plaintiff's reputation.  The repetition of the libel at trial may similarly increase the damage to the plaintiff's reputation.  I am not aware of any case in which it has been found that a publication subsequent to the publication sued upon has aggravated the damage to the plaintiff's reputation as distinct from increasing the hurt to the plaintiff's feelings.

5. It may be necessary to consider the nature and content of the further publications.  The further publication may refer the reader to the publication sued on or otherwise give further life to the publication sued on.  There may be circumstances which cause the further publication to increase the damage caused by the original publication rather than to cause a new injury to the plaintiff.  On the other hand, a subsequent publication may cause a new injury to the plaintiff's reputation.  In the former case the subsequent publication will aggravate the damage caused by the publication sued upon.  In the latter case the subsequent publication causes a new injury to the plaintiff's reputation and gives rise to a new cause of action.  That is the distinction referred to by Gray J in Collins Stewart and approved by Tugendhat J in Clark (t/a Elumina Ibenica UK) v Bain [2008] EWHC 2636 (QB).

Damage to reputation made worse and the need for vindication

1. Counsel for the plaintiffs, Mr Bennett, submits that the function of aggravated damages is not confined to providing a plaintiff with compensation for injury to his or her feelings caused by some conduct on the part of the defendant.  Mr Bennett says that aggravated damages may be awarded where the injury to the plaintiff's reputation caused by the publication sued on has been made worse by some conduct of the defendant or for which the defendant is responsible.  That is correct.  For example, a plea of justification lacking in bona fides or that is improper or unjustifiable and which is persisted in at trial might cause further injury to the plaintiff's reputation by giving further publicity to the defamation.

2. Mr Bennett further says that a greater sum of damages may be necessary to vindicate the plaintiff's reputation because of conduct on the part of the defendant or for which the defendant is responsible.  In Gleaner Co Ltd v Abrahams [2004] 1 AC 628, Lord Hoffman said:

   The damages must be sufficient to demonstrate to the public that the plaintiff's reputation has been vindicated. Particularly if the defendant has not apologised and withdrawn the defamatory allegations, the award must show that they have been publicly proclaimed to have inflicted a serious injury [55].

   It is arguable that a further publication, which belittles the plaintiff or trivialises the defamation sued on, calls for an award of damages to show that the defamation sued upon has been publicly proclaimed not to be trivial and to have inflicted a serious injury to the plaintiff.

Case management considerations

1. In Collins Stewart Ltd v The Financial Times Ltd Gray J said:

   Such is the relatively generous ambit of recovery of compensatory damages in a libel action.  What is the position where a claimant is the subject of a series of articles?  There are various possibilities.  Assume that the defendant publishes three defamatory articles referring to the claimant, articles, A, B and C.  If articles B and C add to the damage caused by the publication of the original article A and are not defensible, then I think that articles B and C should in principle generally be made the subject of separate complaint as separate causes of action.  To do so would make matters simpler and clearer for the jury (or judge) if and when it comes to assessing damages.  If on the other hand articles B and C, whilst defamatory of and damaging to the claimant, do not repeat the libel which was contained in article A, it appears to me to be objectionable in principle to allow the claimant to rely on articles B and C in connection with damages recoverable for the publication of article A.  Articles B and C would be separate torts giving rise to separate claims for damages.  If on the other hand articles B an C consist in part of the repetition of the libel contained in article A and in part of other distinct libels on the claimant, formidable problems will in my opinion arise in disentangling the recoverable and the irrecoverable damage in respect of article A.

   My starting point is therefore that there are sound reasons both of principle and of practice why a claimant, whether an individual or a corporation, should not be permitted to seek to recover increased damages in respect of the publication by the defendant of article A by reason of the publication by that defendant of subsequent articles B and C which are not themselves the subject of complaint [26] ‑ [27].

   In Clarke (t/a Elumina Ibenica UK) v Bain, Prolink Holdings Corp Justice Tugendhat cited with apparent approval the statements of Gray J.

2. If it is found at trial that the further publications consist in part of the repetition of the defamations contained in the publication sued upon and in part other distinct matters derogatory of the AMA there may be difficulties in disentangling the recoverable and the irrecoverable damage in respect of the publications sued upon. On the other hand, if the AMA commences separate proceedings in relation to the further publications then there are likely to be greater costs incurred by the parties, and greater resources of the court utilised, than if the AMA relies upon the further publications in aggravation of the damages caused by the publications sued upon. The pleading of the further publications should only be struck out if the court is satisfied that, for reasons of case management, to do so would clearly advance the objects of case flow management set out in O 1 r 4B of the Rules of the Supreme Court 1971 (WA). I am not satisfied to the requisite degree that striking out the pleading of the further publication would advance the objects of case flow management.

The further publications

1. It is necessary to consider each of the further publications relied upon by the AMA in order to determine whether there is an arguable case that they may aggravate any damages awarded to the AMA in respect of the publications sued on.

First publication

1. The first of the further publications appeared in the April 2012 edition of the Magazine.  The particular passage complained of is set out in [25.7.1] of the statement of claim.  That piece refers to these proceedings brought by the plaintiffs against the defendants.  The last sentence may arguably be understood by a reader to mean that the defendants will continue to examine issues important to the medical profession while the AMA proceeds with this litigation which causes great expense to the defendants and members of the AMA which is not justified.

2. It is arguable that where a plaintiff brings proceedings for defamation and the defendant makes a subsequent publication, which trivialises the action, the damages should be increased beyond what they otherwise would have been to demonstrate to the public that the defamation was not trivial and inflicted a serious injury on the plaintiff and hence to demonstrate to the public that the plaintiff's reputation has been vindicated.

3. It is not unarguable that further publications which belittle the plaintiff in relation to its claim for defamation injure the plaintiff's reputation or have the effect that a greater sum of damages is required to vindicate the plaintiff's reputation.

Second publication

1. The second further publication complained of is an article appearing at page 3 of the April 2012 edition of the Magazine under the heading 'How Doctors Feel Represented'.  The article is again concerned with the AMA's representation of doctors.  Arguably the article would be understood to mean that the AMA does not represent, or adequately represent, the profession which it purports to represent.  It is not unarguable that there is a sufficient link between the subject matter of the 'How Doctors Feel Represented' and the publications sued on for the 'How Doctors Feel Represented' article to be relevant to the damage suffered by the AMA as a result of the publications sued on. 

Third publication

1. The third further publication referred to is The 'Doctors Having Their Say' article is subtitled to be a reflection 'on polling results that give some indication of what WA doctors ask of those who represent them'.  The article commences by saying that in April 2011 the magazine surveyed female GPs on a range of important issues for their women's health edition, at a total of 25% of female GP respondents said they did not have confidence the AMA would deal appropriately with any conflict of interest involving senior office holders.

Claim for aggravated damages not untenable

1. It is arguable that if the further publications increase the injury to the plaintiff's reputation they do so by causing a new injury rather than increasing the injury resulting from the publications sued upon.  If that is so then the plaintiff should not recover aggravated damages for the further publications because those publications have not aggravated the injury from the publications sued upon.  However, that matter should not be resolved summarily.  I am not satisfied that the plaintiff's claim for aggravated damages is so manifestly untenable that it cannot possibly succeed.

The link argument

1. The defendants submit that the plaintiff must plead facts that link the further publications to the publications sued upon in a way that demonstrates that the subsequent publications caused the original publications to cause additional damage to the AMA.  In order to deal with that submission it is necessary to say a little more about the subsequent articles relied upon.

2. The AMA alleges its reputation was affected by the April 2012 magazine publication not that its feelings were hurt.  The first of the further publications refers to these proceedings and, as I have said, may arguably be understood to mean that in proceeding with this litigation the AMA is causing great expense to its members and to the defendants which is not justified.  That may be judged objectively.  No further facts need be pleaded.

3. The second of the further publications arguably would be understood to mean that the AMA does not represent, or adequately represent, the profession which it purports to represent.  That arguably relates to the publications sued upon so as to prolong or add to the potency of those alleged defamations.  The link between the second publication, and the effect of the subsequent publication, may be determined on an objective comparison of the publications.  It is not necessary for the plaintiff to plead any further facts linking the publications or the damage caused.

4. The link between 'The Doctors Having their Say' article and the April 2011 article appears on an objective comparison of the two publications.  It is not necessary for the plaintiffs to plead any further matters linking the two publications.

Conclusion

1. The plaintiff will have leave to amend [25] of the statement of claim by inserting the words 'second to fourth plaintiffs and aggravated the damages suffered by the first plaintiff' in substitution for the words 'the plaintiffs' in the fourth line of [25] or words to a similar effect.  The defendants' application to disallow or strike out the amendments to the statement of claim is dismissed.