The Buddhist Society of Western Australia Inc v Bristile Ltd
[2000] WASCA 210
•9 AUGUST 2000
THE BUDDHIST SOCIETY OF WESTERN AUSTRALIA INC -v- BRISTILE LTD & ANOR [2000] WASCA 210
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASCA 210 | |
| THE FULL COURT (WA) | |||
| Case No: | FUL:10/2000 | 9 JUNE 2000 | |
| Coram: | ANDERSON J OWEN J WHEELER J | 9/08/00 | |
| 28 | Judgment Part: | 1 of 1 | |
| Result: | Appeal dismissed | ||
| PDF Version |
| Parties: | THE BUDDHIST SOCIETY OF WESTERN AUSTRALIA INC BRISTILE LTD (ACN 056 541 096) iiNET LTD (ACN 068 628 937) |
Catchwords: | Defamation Pleadings Publication Posting on Internet Publication on one site but in separate "files" Whether each file a separate publication Defamation Pleading Defence Qualified privilege Plea of the Lange qualified privilege No plea of reasonableness of conduct in relation to publication Whether defence defective |
Legislation: | Nil |
Case References: | Brown v Croome (1817) 2 Stark 297 Cox v Feeney (1863) 4 F & F 13 Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Perera v Peiris & Anor [1949] AC 1 Smythe v MacKinnon (1897) 24 R 1806 Thornton v Stephen (1837) 2 M & Rob 45 Williamson v Freer (1874) LR 9 CP 393 Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294 Charleston v News Group Newspapers Ltd & Anor [1995] 2 AC 65 Crombie v Uniting Church in Australia Property Trust (WA) (1996) 17 WAR 291 Cubby Inc v Compuserve Inc 776 F Supp 135 Godfrey v Demon Internet Ltd [1999] 4 All ER 342 Lange v Atkinson [2000] 1 NZLR 257 Lunney v Prodigy Services Co (unreported, New York Court of Appeal 2 Dec 99) Nationwide News Pty Ltd v International Financing & Investment Pty Ltd & Anor [1999] WASCA 95 Reynolds v Times Newspapers Ltd & Ors [1998] 3 WLR 862 Reynolds v Times Newspapers Ltd & Ors [1999] 3 WLR 1010 The State of Western Australia & Anor v Bond Corporation Holding Ltd & Ors (1991) 5 WAR 40 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA TITLE OF COURT : THE FULL COURT (WA) CITATION : THE BUDDHIST SOCIETY OF WESTERN AUSTRALIA INC -v- BRISTILE LTD & ANOR [2000] WASCA 210 CORAM : ANDERSON J
- OWEN J
WHEELER J
- Appellant (First Defendant)
AND
BRISTILE LTD (ACN 056 541 096)
First Respondent (Plaintiff)
iiNET LTD (ACN 068 628 937)
Second Respondent (Second Defendant)
Catchwords:
Defamation - Pleadings - Publication - Posting on Internet - Publication on one site but in separate "files" - Whether each file a separate publication
Defamation - Pleading - Defence - Qualified privilege - Plea of the Lange qualified privilege - No plea of reasonableness of conduct in relation to publication - Whether defence defective
(Page 2)
Legislation:
Nil
Result:
Appeal dismissed
Representation:
Counsel:
Appellant (First Defendant) : Mr D H Solomon
First Respondent (Plaintiff) : Mr M L Bennett
Second Respondent (Second Defendant) : No appearance
Solicitors:
Appellant (First Defendant) : Solomon Bros
First Respondent (Plaintiff) : Bennett & Co
Second Respondent (Second Defendant) : No appearance
Case(s) referred to in judgment(s):
Brown v Croome (1817) 2 Stark 297
Cox v Feeney (1863) 4 F & F 13
Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Perera v Peiris & Anor [1949] AC 1
Smythe v MacKinnon (1897) 24 R 1806
Thornton v Stephen (1837) 2 M & Rob 45
Williamson v Freer (1874) LR 9 CP 393
Case(s) also cited:
Chakravarti v Advertiser Newspapers Ltd (1998) 154 ALR 294
Charleston v News Group Newspapers Ltd & Anor [1995] 2 AC 65
Crombie v Uniting Church in Australia Property Trust (WA) (1996) 17 WAR 291
Cubby Inc v Compuserve Inc 776 F Supp 135
(Page 3)
Godfrey v Demon Internet Ltd [1999] 4 All ER 342
Lange v Atkinson [2000] 1 NZLR 257
Lunney v Prodigy Services Co (unreported, New York Court of Appeal 2 Dec 99)
Nationwide News Pty Ltd v International Financing & Investment Pty Ltd & Anor [1999] WASCA 95
Reynolds v Times Newspapers Ltd & Ors [1998] 3 WLR 862
Reynolds v Times Newspapers Ltd & Ors [1999] 3 WLR 1010
The State of Western Australia & Anor v Bond Corporation Holding Ltd & Ors (1991) 5 WAR 40
(Page 4)
1 ANDERSON & OWEN JJ: This is an application for leave to appeal from orders made by Steytler J in the defamation list, striking out portions of a defence in a defamation action. The appeal was argued at the same time.
2 The action is brought in respect of publication of material on the Internet. The facts, as they appear from the pleadings, are that the plaintiff is a brick manufacturer with a clay pit situated not far from the Bodhinyana Buddhist Monastery in Serpentine. The general area is semi-rural and the monastery site was chosen for its seclusion. The plaintiff has obtained governmental approvals to truck its clay by means of heavy haulage vehicles on a route which runs past the monastery. These approvals were obtained despite fierce opposition from the first defendant.
3 The first defendant maintains a web site on the World Wide Web. The second defendant, iiNET Ltd, is an Internet service provider. It runs a computer which holds the electronic files for the first defendant's web site. People using the Internet can obtain access to the first defendant's web files by means of the service provided by the second defendant. As it is expressed in the statement of claim, the second defendant "hosts" the first defendant's web site. Another way to put it is to say that the first defendant has its web presence on the second defendant's server or computer which is connected to the Internet.
4 In June 1999, the first defendant placed material in its web files which the plaintiff claims to be defamatory of it. The form of the material includes an open invitation to write a letter of protest to the Minister for the Environment in the State Government and a letter of protest to the plaintiff's managing director. A suggested form of letter to each proposed recipient was included in the web files. The terms of each letter are alleged to be defamatory of the plaintiff. Each letter could, of course, be read by any person who might choose to view the contents of the first defendant's web site; that is, any person connected to the Internet and using the World Wide Web. Also included in the web files was a page which purported to set out the history of the development of the clay pit and haulage activities and the adverse consequences to the monastery and to the public of the haulage activities. This page is also claimed to contain statements defamatory of the plaintiff.
5 Each of the pages or files, that is, the two letters and the statement of history and consequences, is treated in the statement of claim as a separate libel. By its defence, the first defendant pleads to the statement of claim
(Page 5)
- as if each of the two letters and the statement of history and consequences is a separate libel and raises various defences with respect to each. One of the defences that is pleaded with respect to the suggested letter to the Minister is the so-called Lange defence: the extended defence of qualified privilege laid down by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 with respect to discussion of government and political matters. Appreciating that this defence would not be available with respect to the suggested letter to the plaintiff (because no political discussion or information concerning politics or government is in that letter) and that the defence might not be held to be available with respect to the statement of history and consequences, the first defendant did not attempt to plead the Lange defence with respect to those individual items. What it did was to plead the defence with respect to all three items, treating them (to use the pleader's words) as an "entire package of information". This plea is, of course, in addition to the plea of Lange qualified privilege made specifically with respect to the suggested letter to the Minister. The pleading which ropes in the other two items is contained in par 11.3 of the first defendant's defence as follows:
"further or alternatively to paragraphs 11.1 and 11.2, all of the Pro-Forma Minister Letter, the Pro-Forma Plaintiff Letter and the Information constituted the dissemination of information, opinions and arguments on a government or political matter, which was an occasion of qualified privilege.
PARTICULARS
The entire package of information on the first defendant's website was for the purpose of enabling members and supporters of the first defendant to become acquainted with the difficulties being encountered by the Monastery and, if they considered it appropriate, to write expressing their opinion on the government or political issue of whether the use of heavy haulage vehicles by the plaintiff should be permitted."
(Page 6)
- "Taken on its own it could not, I think, be said to be a communication concerning government and political matters at any level. However the submission was put that, when taken together with the first letter and the third publication, it forms part of a package of information in respect of a government or political matter. I do not consider that it can be categorised in that way. The letter is published on the internet as a draft of a document to be sent only to Bristile for the purpose that I have described. It was not prepared for any other purpose and nor, in my opinion, does it arguably have any function as a communication on a government or political matter. It is only the other documents to which I have referred which might be categorised in that way."
7 Paragraph 11.3 of the defence was accordingly struck out.
8 The first ground of appeal goes to this part of his Honour's decision. The ground of appeal is pleaded as follows:
"His Honour erred in fact and law in holding that the Pro-Forma Minister Letter, the Pro-Forma Plaintiff Letter and the Information could not be categorised as part of a package of information which constituted the dissemination of information, opinions and arguments on a government or political matter."
9 The main argument put forward in support of this ground of appeal was that because in an Internet site each file in the site on a particular subject-matter (in this case the subject-matter under the title "Please Save Our Monastery") is linked to each other file, all files should be regarded as one item for the purposes of defamation law.
10 In our opinion, Steytler J was correct to regard the letter in question as a separate libel. The letter, or pro forma letter, is not part of the other two items. It is drawn up to be read as a single document, not as part of one larger document. It has its own substantive identity. Its peculiar purpose is not to inform the public, or any section of the public, about political or governmental matters. It is drafted as a discrete written communication unconnected in form or by reference to its content to any other document. In its electronic existence as part of the content of the web site, it is a separate "file" and is intended to be, and would be, called up and viewed as a separate article. It has an individualness of form and purpose. We are of the opinion that in the context of the law of
(Page 7)
- defamation, it must stand or fall on its own. We would not uphold this ground of appeal.
11 The second ground of appeal raises the question whether reasonableness of conduct is a matter which must be pleaded by a defendant who resorts to the Lange defence. The plea of qualified privilege which invokes the Lange doctrine in this case is set out above. On behalf of the plaintiff, it was submitted to Steytler J that the plea was deficient in that there was absent from it a plea that the making of the publication was reasonable.
12 It is perhaps sufficient for present purposes to say that the basis of this privilege is the constitutional freedom of individuals to engage in political discussion and to receive information concerning the conduct of government. Speaking generally, the High Court held in Lange that this freedom cannot be impinged upon by the common law of defamation. The result is that the categories of qualified privilege are extended to protect a communication made to the public on a government or political matter: Lange at 571. An important feature of the new rule is that it will apply to protect communications made to the public at large, the rationale being that every member of the public has an interest in receiving information of the kind in question and engaging in discussion and debate on political and government matters. At common law, publication beyond a limited audience was rarely protected. It could rarely be shown that the wider audience had a proper interest in hearing or reading or viewing the defamatory material. That defamatory material of the kind in question may be disseminated to tens of thousands of people, with very serious consequences to the reputation of the person defamed, led the High Court to formulate a new test for the protection of individual reputation. Honesty of purpose and absence of malice was thought unlikely to be appropriate when a defamatory publication is not to a few people, but to the public at large. The test laid down by the High Court is reasonableness of conduct. The court said, at 572 - 574:
"No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is
(Page 8)
- likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.
Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous. Given these considerations and given, also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege.
…
Having regard to the interest that the members of the Australian community have in receiving information on government and political matters that affect them, the reputations of those defamed by widespread publications will be adequately protected by requiring the publisher to prove reasonableness of conduct."
(Page 9)
13 Steytler J thought that this meant that it was for the publisher who raises this qualified privilege to expressly plead reasonableness of conduct. He said, at par 69:
"As to the issue of 'reasonableness of conduct' I have already said that this is an element of the defence when a publication concerning a government or political matter is made and the extended defence is relied upon. That being so it is, I think, necessary for it to be pleaded by the party relying upon the defence."
14 We consider, with respect, that this is the proper way to understand the judgment in Lange. Reasonableness of conduct is described as an "element" of this particular qualified privilege and the High Court expressly lays down at 574 that it is for "the publisher to prove reasonableness of conduct". We understand this to mean that, when this qualified privilege is relied on by a publisher, it will not be made out unless the publisher proves reasonableness of conduct as part of his case. Therefore, it seems to us that it is not for the plaintiff to prove that the conduct of the publisher was unreasonable but for the publisher to prove that his conduct was reasonable; and this means that the defence will not be sufficiently pleaded unless there is an express averment not only that the material was of the kind that may be protected by this qualified privilege, but also that the making of the publication was reasonable within the meaning of reasonableness adumbrated in Lange at 574.
15 Counsel for the first defendant attempted to persuade us that this was a wrong approach, because the plea of qualified privilege should be taken to encompass the common law defence and it was never necessary to plead reasonableness of conduct in pleading that qualified privilege. We do not accept this submission. It fails to recognise that, while the Langedoctrine is an extension of the common law defence, there are distinct differences between them, particularly in relation to the reasonableness of the conduct in question. The approach of the first defendant in this case (which is to be gleaned more from what counsel said during argument than from the pleading itself) highlights the problem.
16 Counsel for the first defendant did not rule out the possibility of an argument that the communication would "under the English common law, [have attracted] the defence of qualified privilege". If that were to be the case then, in accordance with the dicta from Langeat 524(which we have already set out) reasonableness of conduct would not be an element of the defence and so need not be pleaded. For the purposes of this appeal we
(Page 10)
- will assume (without deciding) that posting material on an "Internet web-site" is a communication to the public at large. In the circumstances of a case such as this, the argument that the common law defence applied would rely on cases such as Cox v Feeney(1863) 4 F & F 13 and Perera v Peiris & Anor[1949] AC 1. In those decisions the courts enunciated some exceptions to the general rule that communications to the public generally were not privileged because of difficulties in satisfying the element of a corresponding duty and interest. For example, in Cox v Feeney,an article in a newspaper concerning the plaintiff's management of a public charitable trust was held to be privileged because it was published "fairly, from an honest desire to afford the public information" and the defendant was not actuated by malice. But in "English common law" the exceptions are tightly circumscribed.
17 In relation to the common law defence of qualified privilege it is necessary to plead the material facts from which the duty and the corresponding interest is said to arise. When a defendant seeks to call in aid one of the exceptions to the general rule against the privilege applying to broad communications, the rule has additional importance. This is because, for example, the nature of the alleged duty and interest may be relevant to an assessment whether the circumstances of, and means adopted for, the communication, are necessary in the sense that they are the only effectual way of discharging a duty or protecting an interest: Brown v Croome(1817) 2 Stark 297; Williamson v Freer(1874) LR 9 CP 393.
18 This, it seems to us, is what is missing from par 4.4 and par 11.3 of the defence if the first defendant intends to rely on the English common law defence of qualified privilege. If the first defendant wishes to rely on the common law privilege, the pleading is defective and was rightly struck out. If no reliance is placed on the common law defence then par 4.4 and par 11. 3 come squarely within the Langedoctrine and reasonableness of conduct is an element which must be pleaded.
19 In our view, this approach is consistent with proper case management principles. The plaintiff is entitled to know the case that it is being called on to meet. If the defendant wishes to rely on the common law defence of qualified privilege, then it should say so and plead it in the conventional way. If however, (either primarily or in the alternative) it proposes to rely on the extension to the categories of qualified privilege arising in the circumstances envisaged in Lange,then the defendant should say so. It would then be required to plead out the material facts necessary to establish each element of the defence. This includes the
(Page 11)
- reasonableness of its conduct. It could lead to the raising of false issues or further strike out applications if it were left to a plaintiff to guess whether there was a reliance on Lange such as to make it appropriate to allege unreasonableness of conduct in a reply.
20 We would grant leave to appeal, but dismiss the appeal.
21 WHEELER J: This is an application for leave to appeal from orders made by Steytler J striking out portions of a defence in a defamation action to be heard together with the appeal, in the event that the application is successful In my view, the issues are of sufficient novelty and importance to justify a grant of leave to appeal.
22 Bristile claims to have been defamed by each of The Buddhist Society and iiNet. It is a public company which carries on the business of a brick and tile manufacturer in Perth, Western Australia. It obtained government approval for its trucks to haul clay along Kingsbury Drive, Serpentine, in front of the Bodhinyana Buddhist Monastery. This caused dismay to those occupying that monastery and its supporters. The Buddhist Society consequently published upon its web site to iiNet (which carries on business as an Internet service provider, inter alia, hosting web sites for reward and transmitting those web sites to the World Wide Web) the following words, intending that they be republished by means of the World Wide Web:
"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE
LETTER TO MINISTER FOR ENVIRONMENT
________________________
Below is a letter which you may like to send to the Minister for Environment. Please download this page, modify it as you wish, print and sign your name, then send it to the Minister
_________________________
- Hon. Cheryl Edwardes, MLA
Minister for the Environment
18th Floor, Allendale Square
77 St Georges Terrace
Perth. W.A. 6000
Fax: + (61-8) 9221 4665
Email: [email protected]
(Page 12)
- Dear Minister,
I would like to express my concern that heavy haulage has begun along Kingsbury Drive, Serpentine, in front of the Bodhinyana Buddhist Monastery. This results in excessive noise which is destroying the peace and tranquillity, the very reason for the monastery's existence.
The Abbott has clearly stated that if the trucking continues the monastery will have to close down. Western Australia is very fortunate to have such a spiritual facility which is well known nationally and internationally.
I am also concerned about the danger which results from very large vehicles travelling down a steep gradient, especially as it is to [sic] close to the South West Highway. They pose a risk to our community members who visit the monastery daily. The same danger exists for local residents, school children and tourists along Kingsbury Drive.
Metro Brick has violated environmental principles and road safety for immediate and shortsighted commercial gains. Importantly, it also demonstrates disrespect for spiritual values, including the Constitutional right of freedom of religious expression.
I give my full support to the Buddhist Society of Western Australia (Inc.) in their efforts to save this unique spiritual sanctuary, and to protect the rights and safety of other road users. I urge you to do all in your power to rectify this situation and to ensure that community and environmental concerns are placed first, not last.
Yours Sincerely,"
23 Bristile pleads, in its statement of claim, that iiNet, at the material times, hosted the Buddhist Society's web site upon its web server and published the Buddhist Society's web site to the World Wide Web, listing it with various search engines.
24 Bristile alleges, in par 6 of its statement of claim, that iiNet "republished" the letter which I have quoted above ('the first letter') to the
(Page 13)
- World Wide Web by loading or permitting the loading of that letter upon its web server and connecting it by fibre optic cable or otherwise to the Telstra Broadband.
25 The defamatory imputations said to arise from the first letter are set out in par 7 of the statement of claim as follows:
"7. In its natural and ordinary meaning the … [first letter] meant, and was understood to mean, that:
7.1 the Plaintiff had breached the laws and regulations concerning environmental protection in the State of Western Australia;
7.2 the Plaintiff has a callous disregard for the environment;
7.3 the Plaintiff has a callous disregard for the safety of road users;
7.4 the Plaintiff would endanger the lives of road users for financial gain;'
"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE
LETTER TO METRO BRICKS [sic]
________________________
Below is a letter which you may like to send to Metro Bricks [sic] (Bristile). Please download this page, modify it as you wish, print and sign your name, then send it to the Managing Director of Metro Bricks [sic]
_________________________
- To:
Mr David N. Gilham
Managing Director
(Page 14)
- Bristile Ltd.
Harper Street
Caversham. W.A. 6055
Fax: + (61-8) 9261 9988
Email: [email protected]
Dear Mr Gilham,
It is with dismay and shock that I heard that Metro Brick is currently allowing heavy-haulage vehicles to cart clay along Kingsbury Drive in front of the Buddhist Monastery. This shows on the part of Metro Brick not only a callous neglect of environmental concerns and road safety but also a complete lack of respect for community values.
The excessive disturbance is destroying the peace and tranquillity, which is the very reason for the monastery's existence. In fact, the Abbott has clearly stated that if the trucking continues, the monastery will have to close down thereby denying our constitutional right of freedom of religious expression and practice, and destroying a sanctuary of peace. Many non-Buddhists such as the Cancer Support Association and school groups also use the monastery.
Loaded trucks travelling down Kingsbury Drive are a high risk to the driver and to other road users. Members of the Buddhist community use this road every day to visit the Monastery. It is also used by local residents, by school children and by tourists, all of whom are entitled to safety on the road.
There are over 10,000 members of the Buddhist community in Perth and many more non-Buddhist supporters who, like me, would prefer, under the current circumstances, not to purchase their building materials from Bristile/Metro Brick.
I would like to urge you to reconsider your decision in this matter.
Yours sincerely,"
(Page 15)
27 In par 11 the plaintiff pleads that iiNet "republished" this letter ("the second letter") to the World Wide Web by loading or permitting the loading of the letter upon its web server and connecting it by fibre optic cable or otherwise to the Telstra Broadband.
28 The defamatory imputations said to arise from the second letter are pleaded in par 12 of the statement of claim as follows:
"In its natural and ordinary meaning, the … [second letter] meant and was understood to mean that:
12.1 the Plaintiff has a callous disregard for the environment;
12.2 the Plaintiff has a callous disregard for the safety of road-users"
29 A third publication ("the third publication") is said to have occurred when the Buddhist Society is said to have published upon its web site to iiNet, with the intention that this publication be "republished to the world by means of the World Wide Web", the following words:
"INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE
HISTORY
1. A proposal to develop a clay pit on Firns Road, Serpentine, was submitted to the Shire of Serpentine-Jarrahdale on 25 September 97. The clay was to be used by Metro Brick and to be hauled past our Buddhist Monastery's 500 metre frontage with Kingsbury Drive.
2. The Buddhist Society of Western Australia (Bud. Soc.) found out about this proposal by chance while attending a meeting of the Shire Council on other business in February 98.
3. The Bud. Soc. lodged an appeal to the Minister for the Environment, the Hon. C. L. Edwardes, on 9 March 98.
4. Representatives from the E.P.A. met with the abbot and other representatives of the Bud. Soc. and encouraged a compromise solution.
5. A compromise to split the traffic generated [by] the proposal, with half going down an alternative route, was proposed by the
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- Bud. Soc, and approved by the Shire Council at its meeting on 22 June 98.
6. In consequence of what we thought was the acceptance of this compromise, the Bud. Soc. did not pursue the matter further and thus the Minister dismissed the appeal on 7th July 98.
7. On 19 October 98 the compromise of splitting the traffic was reconsidered by the Shire's Planning Services and Development Committee. That committee resolved to support a doubling of the amount of clay to be initially transported and to revert to haul the material on a single route up and down Kingsbury Drive, past our monastery.
8. The Bud. Soc., on the advice of its then lawyers, questioned the legality of the Shire changing its original decision, to separate the traffic generated, in the Supreme Court of W.A.
9. On 4 March 99 the Supreme Court judged that the Shire's granting of an Extractive Industries Licence on 22 June 98 was invalid on procedural grounds and so we were arguing about a decision which legally did not exist. On this point, we lost our case.
_______________
CONSEQUENCES
Should the proposed development proceed, it would mean:
1. 5,882 total truck trips past our monastery in the initial haulage period (to carry 50,000 cubic metres with 15 trucks (42.5 GVM) each doing 5 return trips per day). Thereafter, 2941 total truck trips past our monastery (to carry 25,000 cubic metres) twice per year for 5 years.
(Sources: Shire Planning Meeting minutes of 19/10/98 Uloth and Associates Pty Ltd.)
2. This would mean:
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- - In the first year, one truck pass every 4.8 minutes from 6am-6pm, Mon-Sat, for 39 days (6.5 weeks) then same for 20 days (3.3 weeks) later in the year, i.e. for 10 weeks in the first year.
- In subsequent years, one truck pass every 4.8 minutes from 6am-6pm, Mon-Sat, for 19.5 days (3.3 weeks) twice per year, i.e. a total of 39 days (6.5 weeks) per year, for the duration of the pit (4-5 years)
(Source: Uloth and Associates Pty Ltd.)
3. Such significant increase of heavy haulage traffic on Kingsbury Drive would greatly increase the danger to other road users. Members of our Buddhist community would, through fear, be unable to practise their religious duties by attending their monastery.
A number of accidents on this section of Kingsbury Drive has already been recorded, including a death around 12 years ago when a truck lost control on the steep slope down the scarp and including 17 instances of vehicles being unable to stop at the junction of Kingsbury Drive and the Southwest Highway, careering out of control across the Highway and through the fence into the neighbouring property (according to N Kentish, property owner of nearby property).
4. This would also generate 'truck noise level up to 76 dB (A) on the Premises (our monastery) which is up to 46 dB (A) above ambient noise at the rate of approximately 15 per hour for up to 12 hours per day, will have significant impact on the residents, which normally will result in vigorous complaints and threats of legal action.' (Source: Herring Storer Acoustics)
5. Such noise generated by this proposal would be inimical to the practice of meditation at our monastery and would cause the monks to leave. (Source: The Buddhist Tipitaka - The Canon containing the Teachings of the Buddha).
6. Should the monastery be forced to relocate, the huge investment of energy and money put in over 15 years could never be adequately recovered (At present the monetary value of the monastery is estimated at 1.8 million [sic]).
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- 7. The Buddhist community in Western Australia will thereby be severely hindered from practising their religion which has been for 25 centuries, monastery centred."
30 In par 16 of the statement of claim Bristile pleads that iiNet republished the third publication to the World Wide Web by loading or permitting the loading of that publication upon its web server and connecting the same by fibre optic cable or otherwise to the Telstra Broadband.
31 The third publication is said (par 17) to have meant or been understood to mean, in its natural and ordinary meaning, that Bristile had a callous disregard for the safety of road users.
32 Bristile goes on to plead in par 19 of the statement of claim that the defendants published the defamatory publications in circumstances in which it was the natural and probable consequence of such publications "that they be republished", in which they intended that their defamatory publications be republished and in which they authorised recipients of their defamatory publications to republish them.
33 The Buddhist Society does not admit an intention to publish to the world at large. It denies that the three publications are capable of bearing the meaning contributed to them by Bristile, and pleads alternative meanings. Importantly for this appeal, it then pleads:
"11. Alternatively to paragraphs 4 - 10:-
11.1 all of the … [first letter], the … [second letter] and the … [third publication] formed part of an information package on the first defendant's website, which overall meant and was understood to mean that:-
11.1.1 excessive noise is inimical to the purposes of a monastery used for meditation;
11.1.2 the extent of the noise from the heavy haulage vehicles might cause closure of the Monastery;
11.1.3 the first defendant would be assisted by its members and supporters writing strong letters to the Minister for the Environment
(Page 19)
- and the managing director of the plaintiff in the form of the … [first letter] and the form of the … [second letter] or in any other form that those members or supporters considered appropriate;
- 11.1.4 the form of the … [first letter] and the … [second letter] included opinions which, upon consideration of all materials on the first defendant's website, the members and supporters of the first defendant might reasonably form and express to the Minister for the Environment and the managing director of the plaintiff as their own;
- 11.2 in their natural and ordinary meaning the words used in the … [first letter] and the … [second letter] and the … [third publication] were true in substance and fact.
PARTICULARS
- The first defendant repeats the particulars to paragraph 4;
11.3 further or alternatively to paragraphs 11.1 and 11.2, all of the … [first letter], the … [second letter] and the … [third publication] constituted the dissemination of information, opinions and arguments on a government or political matter, which was an occasion of qualified privilege.
PARTICULARS
The entire package of information on the first defendant's website was for the purpose of enabling members and supporters of the first defendant to become acquainted with the difficulties being encountered by the Monastery and, if they considered it appropriate, to write expressing their opinion on the government or political issue of whether the use of heavy haulage vehicles by the plaintiff should be permitted."
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34 The description of the three items as an entire package of information arose out of the defendant's appreciation that the defence of qualified privilege explained by the High Court in Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 might well not be available to it in relation to the second letter, since that letter did not attempt to influence a course of conduct in respect of government and political matters of any minister or government agency and did not directly raise any matters of political discussion or information.
35 Steytler J held that the Lange defence was arguably available with respect to the first letter to the Minister and the third publication but not with respect to the second letter addressed to the plaintiff itself. Of that letter, his Honour said at par 68 of his judgment:
"However the second letter seems to me to be more problematic. It is addressed only to Bristile and is designed to persuade it to desist from its carting activities on Kingsbury Drive. Taken on its own it could not, I think, be said to be a communication concerning government and political matters at any level. However the submission was put that, when taken together with the first letter and the third publication, it forms part of a package of information in respect of a government or political matter. I do not consider that it can be categorised in that way. The letter is published on the Internet as a draft of a document to be sent only to Bristile for the purpose that I have described. It was not prepared for any other purpose and nor, in my opinion, does it arguably have any function as a communication on a government or political matter. It is only the other documents to which I have referred which might be categorised in that way."
36 Further, Steytler J took the view that a publisher who raises the Lange defence of communication with respect to political matters was required expressly to plead reasonableness of conduct. As to this, his Honour said at par 69 and 70 of his reasons:
69 As to the issue of 'reasonableness of conduct' I have already said that this is an element of the defence when a publication concerning a government or political matter is made and the extended defence is relied upon. That being so it is, I think, necessary for it to be pleaded by the party relying upon the defence. (Cf Nationwide News Pty
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- Ltd v International Financing & Investment Pty Ltd [1999] WASCA 95 par 15).
- 70 No attempt has been made by The Buddhist Society to plead the more traditional defence of qualified privilege under the English common law. All that each of par 4.4 and par 11.3 pleads is that the publication there referred to constituted the dissemination of information, opinions and arguments on a government or political matter. That, in itself, is not a sufficient plea of qualified privilege under the English common law. It is plainly a plea which relies upon the extension of that privilege discussed in Lange. That being so the pleader was required to address the issue of reasonableness of conduct. That has not adequately been done, if it has been done at all, as regards the publication of any of the three communications to which I have referred."
37 Having formed the views which he did, Stetyler J struck out par 4.4, the preamble to par 11.1 and par 11.3 of the defence of the first defendant. The grounds of the appeal in respect of that order are:
1 His Honour erred in fact and law in holding that the Pro-Forma Minister Letter, the Pro-Forma Plaintiff Letter and the Information [being a reference to the first and second letters, and the third publication, respectively] could not be categorised as part of a package of information which constituted the dissemination of information, opinions and arguments on a government or political matter.
2 His Honour erred in law in holding that reasonableness of conduct is an element which must be pleaded in all cases by a defendant seeking to rely on the defence of qualified privilege based on the dissemination of information, opinions and arguments on a government or political matter."
38 It is desirable to recall that a pleading should be struck out as incapable of giving rise to a cause of action or defence only where it is not really arguable, and that regard must be had to any reasonable possibility of development of the law: Kimberley Downs Pty Ltd v Western Australia, unreported; SCt of WA; Library No 6414; 25 August 1986.
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- Often it is necessary to find the facts before a relevant legal principle can be applied, and that cannot be done on a strike out application.
39 There was of course no evidence before his Honour, or before us, in relation to the operation of the Internet and the manner in which access would be gained through the World Wide Web to the three items the subject of complaint. However, copies printed from The Buddhist Society of Western Australia's "Home Page" and other documents placed on the World Wide Web by The Buddhist Society were made available to his Honour and were included in the appeal book. Before turning to the ground of appeal concerned with the "package" of information, it is convenient to set out the understanding which I have gleaned from the photocopies placed in the appeal book, from a degree of knowledge of operation of the World Wide Web of which I think it is appropriate to take judicial notice, and from apparently undisputed matters referred to during the course of argument. I do so in order to draw attention to the kind of factual issues which, it appears to me, may require resolution in order to determine the legal question raised by the first ground of appeal.
40 The primary "document" to which access would be obtained by those interested in the fortunes of The Buddhist Society of Western Australia is its "home page". That home page has its own Internet address; it displays the geographical address and telephone numbers of the Society, a photographic reproduction of a statue; and it contained, on the date in question, two "boxes". The first box outlined heavily, is subdivided into eight small boxes which contain titles such as "Introduction", "Regular Activities", "Executive Committee for 1999", and so on. My understanding is that clicking on any of those small boxes would lead the reader to information about the particular topics referred to therein.
41 The other box, to which I will return in a moment, outlined somewhat less heavily, contains the heading in upper case letters "PLEASE SAVE OUR MONASTERY!" and the subheading, also in upper case "INTENSIVE HEAVY HAULAGE PAST THE BUDDHIST MONASTERY IN SERPENTINE". Underneath that are a variety of further topic headings, including "The court case", "History" and, (under a further subheading reading "You can help by writing letters to:") "Minister for Environment" and "Managing Director of Metro Bricks". Clicking on any of these eight headings, will bring up for the reader the full text of the relevant document. The documents complained of by the plaintiff are those found under the heading "History", "Minister for Environment", and Managing Director of Metro Bricks". Beneath that box is a lengthy list which runs to approximately a further two pages of
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- A4 paper when printed out. It contains other topics under the subheadings "New Information", "Newsletters, "Other news", "Buddhist essays", and "Links to selected Buddhist sites". The last two lists are the longest and, again, my understanding is that clicking on any of the listed topics will bring up the text of the relevant document.
42 Calling up the text of any of the three documents in issue, brings up the heading "Buddhist Society of Western Australia Home Page", the heading of the relevant document, the text of the relevant document, and then in square brackets at the foot of the document a variety of other topics which are listed. In each case under each of the documents in issue, the topics listed are "Main Index" and also five of the other eight topics to be found in the "Please Save our Monastery" box (the references to reproductions of newspaper articles apparently being omitted). Having read the relevant document, the reader can then, if he or she wishes, click either on "Main Index" to return to the Home Page or on one of the other headings to bring up one of the other documents related to the Monastery's dispute with the plaintiff.
43 Each document has its own separate Web address. This means that a person in possession of the address would be able to call up the relevant document without going first to the Home Page or to any of the other documents. It is not clear how a reader would obtain the relevant Web address of each document. Of course one assumes that they could be made known by members or supporters of the Society to those interested, but it is not clear whether the individual documents, or only the Home Page, would be found by any of the search engines customarily used to find publications on the World Wide Web or, if they can be separately found, under what headings they might be indexed, or with what other documents they might be indexed.
44 Questions of context and of cross-referencing have been held to be relevant to the meaning of a publication for purposes of the law of defamation. For example, where a newspaper article refers to another report in the same issue, a party to the proceedings may have that other report read as part of the context in which the meaning of the words complained of is to be determined: Thornton v Stephen (1837) 2 M & Rob 45, while in the case of an alleged libel contained in a letter, the whole of the correspondence may be the relevant context: Smythe v MacKinnon (1897) 24 R 1806.
45 It seems to me that it is arguable that information which is not itself directly concerned to discuss or to attempt to influence the actions of
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- ministers, members of government or members of parliament may nevertheless take a "political" character from an association in some form with information of that kind. It is not unusual, for example, for strictly political and economic or moral campaigns, all directed to obtaining a broadly political end, to be combined in modern political discourse. It is not unusual for a campaign of this kind to be conducted in part by circulating to supporters of the relevant principle a package or kit which contains, among other things, leaflets setting out what is considered to be relevant information, and a series of draft letters or postcards which may be adapted by the recipient to be sent by them to nominated persons or organisations, often including, but not limited to, members of Parliament.
46 It would appear to me at present arguable that in such a context, a proforma letter, even addressed to a private corporation concerning its business undertakings, might be considered to be a "political" communication, particularly if the letter contains statements which duplicate those contained in either an information leaflet or a letter intended to be addressed to a member of Parliament. In such a case, the letter might have a number of effects, one of which could be to reinforce, in the mind of the person who received the package or kit, the importance of the relevant principle and another of which might be, if letters of that kind were sent to the corporation, to alert it to the fact that some members of the community saw the relevant principle as one important to be raised in the political arena.
47 The question of how one determines the "context" of a document which appears on the World Wide Web is, I think an open one, the answer to which may depend upon evidence which is not presently before the court. In my view, the proforma letter to the Managing Director of the plaintiff (the second letter) may, depending upon the evidence adduced at trial, be able to be seen as part of a package of information or suggested activity which has predominantly a political purpose and which forms part of a series of linked communications about political matters. This is particularly so, since it is "boxed" together with other documents which have a more strongly political orientation (particularly the proforma letter to the Minister for the Environment) in the "Please Save our Monastery" box on the Home Page, and because the links (at the foot of the proforma letter) refer the reader directly to other information which sets out in more detail the history of the matter and its political context. The nature of the document is also of some relevance. It is in the form of a letter which the reader is invited to download, modify and send to the Managing Director of the plaintiff. No doubt some readers who are merely idly curious may not consider any further links, but the presentation of the document in that
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- way appears to beg the question of why it is desirable to communicate with the plaintiff in that way, and is therefore likely perhaps to stimulate the reader to turn to the history or consequences or to some other apparently related document.
48 On the other hand, the proforma letter is able to be read as a single document, and access may be gained to it without the reader necessarily going to any of the other links. It could be called up and viewed as a separate article, even without going to the Home Page, although it is not clear whether this is likely. It does not contain any direct references in the body of the letter, to its political context. There are therefore reasons to regard the document as a single distinctive publication. However, at this stage of the proceedings, it is enough that, in my view, it is arguable that the document may be sufficiently coloured by its context to be regarded as part of a "package" of information and argument respecting a government or political matter, so that it was not appropriate to strike out the paragraph on that basis at this stage.
49 So far as the plea of qualified privilege and the "Lange" defence is concerned, it is not clear to me whether the argument which was put to us was the one which was put before his Honour. The understanding which I gained during the course of argument was rather different from that which I gained from reading his Honour's reasons.
50 As I understand it, from the argument which was put to the Full Court, the defendant says that it is not correct, following Lange, to take the view that there is both a common law defence of qualified privilege which has nothing to do with political communication and, side-by-side with that, a defence of communication in respect of political matters in respect of which reasonableness must always be an element. Rather, it is said that there is one defence of qualified privilege in respect of political communication, which has two limbs. So far as the first limb is concerned, it is made out where the communication on political matters is made in circumstances that, under the English common law, would have attracted a defence of qualified privilege; that is, where the publication is a publication of a limited kind and made to an audience which has a particular interest over and above that of the general public in receiving the communication. The second limb arises where the publication is made to the world at large (such as in a newspaper publication) and in respect of communications in this kind reasonableness of conduct is imported as an element.
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51 The defendant says that this understanding arises from the discussion of qualified privilege in respect of political communication at page 572-573 of Lange where the court said:
"No doubt it is arguable that, because qualified privilege applies only when the communication is for the common convenience and welfare of society, a person publishing to tens of thousands should be able to do so under the same conditions as those that apply to any person publishing on an occasion of qualified privilege. But the damage that can be done when there are thousands of recipients of a communication is obviously so much greater than when there are only a few recipients. Because the damage from the former class of publication is likely to be so much greater than from the latter class, a requirement of reasonableness as contained in s 22 of the Defamation Act, which goes beyond mere honesty, is properly to be seen as reasonably appropriate and adapted to the protection of reputation and, thus, not inconsistent with the freedom of communication which the Constitution requires.
Reasonableness of conduct is the basic criterion in s 22 of the Defamation Act which gives a statutory defence of qualified privilege. It is a concept invoked in one of the defences of qualified protection under the Defamation Codes of Queensland and Tasmania: Criminal Code (Q), s 377; Defamation Act 1957 (Tas), s 16. And it was the test of reasonableness that was invoked in the joint judgment in Theophanous (1994) 182 CLR 104 at 136-137. Given these considerations and given also, that the requirement of honesty of purpose was developed in relation to more limited publications, reasonableness of conduct seems the appropriate criterion to apply when the occasion of the publication of defamatory matter is said to be an occasion of qualified privilege solely by reason of the relevance of the matter published to the discussion of government or political matters. But reasonableness of conduct is imported as an element only when the extended category of qualified privilege is invoked to protect a publication that would otherwise be held to have been made to too wide an audience. For example, reasonableness of conduct is not an element of that qualified privilege which protects a member of the public who makes a complaint to a Minister concerning the administration of his or her department. Reasonableness of conduct is an element for the judge to consider only when a publication concerning a
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- government or political matter is made in circumstances that, under the English common law, would have failed to attract a defence of qualified privilege."
52 It appears to me that the view of Langedeveloped by the defendant is arguable. However, the defendant then says that certain consequences for its pleading flow from the view which it takes. It is asserted that on this understanding of Lange, it is sufficient for the defendant, which relies upon the first "limb" of the privilege, to plead that its communication was dissemination of information, opinions and arguments on a government or political matter. It is asserted that it is not required to plead reasonableness, because it does not rely on what I might call the "second limb" of Lange and that is not required to plead the circumstances which bring it within the "ordinary" common law defence of qualified privilege. Rather, the defendant asserts that it is for the plaintiff, if necessary, to plead in reply that the defendant does not fall within the Lange defence either because it acted with malice or because it did not fall within the English common law qualified privilege defence.
53 In my view, that conclusion does not follow from the view of Lange taken by the defendant. At common law, it was necessary to plead the relevant interest and/or duty in both publisher and recipient or recipients which gave rise to the qualified privilege. My understanding of the defendant's pleading in its par 11.3 is that it says that the privilege arises because its communication is directed to "members and supporters". Presumably, it will wish to assert that the publication was made only to that group and that that group had a particular interest in receiving information about the "difficulties" (as it was put in argument on behalf of the defendant) which the Society was experiencing. However, regarded as a plea of common law qualified privilege, the mere reference to "members and supporters" is in my view wholly inadequate.
54 On the view of Langewhich the defendant takes, assuming for the moment that it be correct, it is my view that it must either plead the dissemination of information on a government or political matter, and plead reasonableness of conduct, or, alternatively, it must set out those material facts which make the particular political communication one of qualified privilege as a matter of "English common law". However, in the absence of either a plea of reasonableness or a plea setting out what it is that would bring The Buddhist Society within the English common law qualified privilege defence, the attempted defence of qualified privilege relying on Lange was simply inadequate and was therefore properly struck out.
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55 It is therefore my view that, notwithstanding that the appellant's first ground of appeal is made out, the appeal should be dismissed.
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