The Hon Douglas James Shave v City of Kalgoorlie-Boulder
[2015] WASC 499
•19 NOVEMBER 2015
THE HON DOUGLAS JAMES SHAVE -v- CITY OF KALGOORLIE-BOULDER [2015] WASC 499
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 499 | |
| Case No: | CIV:1143/2015 | 19 NOVEMBER 2015 | |
| Coram: | KENNETH MARTIN J | 19/11/15 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Statement of claim struck out with leave to re-plead | ||
| B | |||
| PDF Version |
| Parties: | THE HON DOUGLAS JAMES SHAVE CITY OF KALGOORLIE-BOULDER DON BURNETT |
Catchwords: | Defamation Strike out application Arguability of innuendos Publication Internet Turns on own facts |
Legislation: | Nil |
Case References: | Birmingham v West Australian Newspapers Ltd [1999] WASC 19 Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Feros v West Sydney Radio Pty Ltd (Unreported, NSWCA, 22 June 1982) Gumina v Williams [No 1] (1990) 3 WAR 342 Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255 John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706 Leighton v Garnham [2012] WASC 314 Maher v Nationwide News Pty Ltd [2013] WASC 254 Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663 Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174 Russell v Win Corp Pty Ltd [2013] ACTSC 159 Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497 Smith v Marshall [2014] WASC 185 Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1 Taylor v Jecks (1993) 10 WAR 309 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CITY OF KALGOORLIE-BOULDER
First Defendant
DON BURNETT
Second Defendant
Catchwords:
Defamation - Strike out application - Arguability of innuendos - Publication - Internet - Turns on own facts
Legislation:
Nil
Result:
Statement of claim struck out with leave to re-plead
Category: B
Representation:
Counsel:
Plaintiff : Mr S T Halls
First Defendant : Ms A M Derham
Second Defendant : Mr S K Shepherd
Solicitors:
Plaintiff : Hotchkin Hanly Lawyers
First Defendant : DLA Piper
Second Defendant : Jarman McKenna
Case(s) referred to in judgment(s):
Birmingham v West Australian Newspapers Ltd [1999] WASC 19
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Feros v West Sydney Radio Pty Ltd (Unreported, NSWCA, 22 June 1982)
Gumina v Williams [No 1] (1990) 3 WAR 342
Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255
John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706
Leighton v Garnham [2012] WASC 314
Maher v Nationwide News Pty Ltd [2013] WASC 254
Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663
Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174
Russell v Win Corp Pty Ltd [2013] ACTSC 159
Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497
Smith v Marshall [2014] WASC 185
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
- KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 19 November 2015 and has since been edited from the transcript.)
1 This is the application by the second defendant to strike out various paragraphs in the current statement of claim of the plaintiff, Mr Shave.
2 The pleading under attack is the plaintiff's further re-amended statement of claim (the FREASOC) of 28 August 2015. In that pleading, the plaintiff complains about being defamed by three separate publications.
3 The as defined first defamatory publication is a Media Release publication uploaded to the website of the first defendant, that is, the City of Kalgoorlie-Boulder, referred to in par 5.
4 There are some minor issues about the FREASOC's particulars of publication seen in the particulars to par 5, to which I shall return.
5 The Media Release which is alleged to have been published on that website on 13 November 2014 is then set out in FREASOC par 6. I attach the content of that Media Release as Schedule A to these reasons and return to that in due course.
6 The second defamatory publication is contended for at FREASOC par 10, alleging that on 13 November 2014, the second defendant, that is, Mr Burnett, (referred to in the statement of claim as being at all material times the Chief Executive Officer, or CEO, of the first defendant, that is, the City of Kalgoorlie-Boulder) sent the same Media Release, by a facsimile to a local media outlet, the Kalgoorlie Miner.
7 Particulars given of the second publication say that it was read by 'at least Jasmine Banford', on or about 13 November 2014.
8 The same Ms Banford is referred to in particulars of publication under FREASOC par 5, as having been the person who in mid-November 2014 downloaded the web page from the first defendant's website to read the Media Release.
9 So the substantive content of FREASOC pars 5 and 10, read together concerning allegedly distinct publications, as contended, is that the material was downloaded and read by Ms Banford.
10 That all gives rise to some interesting longer term issues concerning the publication of the Media Releases. But, for all intents and purposes, what was the subject of the facsimile, complained of as the second defamatory publication, is, in fact, the same written content as the Media Release, the content of which is seen under FREASOC par 6.
11 The last publication complained of is defined as the third defamatory publication. It is identified at FREASOC par 12. This alleged publication is different in its structural content. The FREASOC par 12 contention is that it was the first defendant, that is, the City or, further and alternatively, Mr Burnett, who caused to be published in the Kalgoorlie Miner newspaper an article which is referred to as the 'gist' of the Media Release.
12 The so-called 'gist' of the Media Release is set out verbatim at FREASOC par 13. Unlike the first and second defamatory publications as alleged, the third publication has some distinct aspects to it, particularly its first and second paragraphs. I also attach the content of that publication to these reasons, as Schedule B.
13 Furthermore there is a paragraph towards the end of the third publication which read:
Because of legal implications, the Miner was unable to reproduce many of Mr Burnett's comments included in the statement.
14 There are also issues concerning the particulars given in regard to the publication in the Kalgoorlie Miner of the so-called 'gist' of the Media Release on or about 15 November 2014, as the article said to have appeared on page 5 of that edition.
15 There are also minor grievances about this publication plea arising in respect of FREASOC pars 14, 15, 16 and, indeed, 19.
Challenges against imputations
16 The major structural attacks raised upon this application are against two common natural and ordinary meanings (popular or false innuendos, as they are called) found in FREASOC par 8(a) and par 8(b), vis-à-vis what is contended to arise as the natural and ordinary meaning of the first defamatory publication (Media Release).
17 Those same two imputations are complained of as arising from the second defamatory publication, namely, the facsimile, found in par 11(a) and par 11(b). They are attacked by the second defendant on the same basis as the challenges against par 8.
18 In terms of the Kalgoorlie Miner's allegedly third defamatory publication, said to contain the 'gist' of the Media Release, there is one imputation contended for as arising from those words. It is identified at FREASOC par 16 again as a popular or false innuendo. This imputation is essentially the same meaning as is contended for under FREASOC pars 8(b) and 11(b) concerning the earlier two publications complained about.
19 The one natural and ordinary meaning as regards the third publication needs to be viewed discretely. The words from which it is contended to emerge are somewhat different, albeit contended as being the gist of the Media Release.
20 So the required evaluation then upon this strikeout application is as to the reasonable arguability of the two as formulated, popular or false innuendos found under FREASOC pars 8(a) and 8(b) and their following respective counterparts in the FREASOC concerning the second and third publications.
21 The FREASOC par 8(a), par 8(b), par 11(a) and par 11(b) false innuendo pleas are that the first (and second) publications were, as regards this plaintiff, on their natural and ordinary meaning, understood to mean that he:
(a) was misusing the processes of the Western Australian 'Court system'; and
(b) was wasting the money of ratepayers of the City of Kalgoorlie-Boulder by forcing the first defendant (that is, the City) to pay legal fees in defending the 'proceedings' (the word 'proceedings' being defined at FREASOC par 2, as the civil action CIV 2507 of 2014 filed in this court).
Legal principles
22 Essentially, the question as to evaluating the reasonable arguability of imputations as a cause of action in defamation is whether the meanings as contended for can arise from the words complained about as arguable meanings. If so, then a second question is: are they arguably defamatory of the plaintiff?
23 There is a second aspect to assessing a permissible defamatory imputation, by reference to pleading rules which require defamatory imputations to be formulated with precision. The meaning must capture the essence or 'sting' of the reputational wound(s) delivered by the defamatory publication, in circumstances where there is considerable case law to say that it is usually not permissible for a plaintiff to extract and repeat the unclear words or phrases of a publication, to throw them back in the face of a defendant and say, 'You defamed me by that word.'
24 I dealt with that issue of pleading embarrassment under the Rules of the Supreme Court 1971 (WA) O 20 r 19(1)(c) in Maher v Nationwide News Pty Ltd [2013] WASC 254, by reference to prior case authority, including Monte v Mirror Newspapers Ltd (1979) 2 NSWLR 663; Gumina v Williams [No 1] (1990) 3 WAR 342 and Taylor v Jecks (1993) 10 WAR 309. Of course, there is the foundational authority of the High Court of Australia in SungravurePty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1, particularly the reasons of Stephen J to which I also refer in Maher at [27]. I refer to, without repeating again, what I said in Maher, particularly under the heading 'proper formulation of imputations' at [27] through to [32] of those reason published on 24 April 2013.
25 A decision that I did not mention in Maher, as there are legion upon this topic, is a decision of Steytler J (as he then was) in Birmingham v West Australian Newspapers Ltd [1999] WASC 19. In that case, his Honour comprehensively addressed the case authorities in relation to the need for the formulation of a precise imputation - I refer to [7] and [8] of those reasons, which I would respectfully adopt. Steytler J had said:
The principles which apply to complaints of that nature are not in issue. It is, firstly, well accepted that imputations will be struck out, at this stage of the proceedings, if they are untenable or manifestly groundless (Gumina v Williams (No 1) (1990) 3 WAR 342 at 346; Taylor v Jecks (1993) 10 WAR 309 at 319 and Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675). Next, an imputation must express the precise act or condition asserted of or attributed to the plaintiff or with which the plaintiff was charged (Monte v Mirror Newspapers Ltd, supra, at 678) and should not be ambiguous or contain irrelevant matter (Taylor v Jecks, supra, at 316-319). Thirdly, whether the words complained of are capable of conveying an allegedly defamatory meaning contended for is a question of law. The test is whether, under the circumstances in which the writing was published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense. (See Jones v Skelton [1963] 1 WLR 1362 at 1370-71 and Smith v Littlemore (1996) 15 WAR 289 at 294-295.) In deciding whether or not words are capable of conveying an allegedly defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation and will assume that the ordinary reader is a person of fair average intelligence who does not live in an ivory tower, who is not unusually suspicious or naive or avid for scandal and who is not inhibited by strict rules of construction. (See Lewis v Daily Telegraph Ltd [1964] AC 234 at 258-259 and Slatyer v Daily Telegraph Newspaper Co Ltd (1908) 6 CLR 1 at 7.) Finally, an imputation should represent the final distillation of the alleged defamatory meaning. (See Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 15.)
As to the first of the complaints made in respect of imputation 4.1 it seems to me that to plead only that someone acted "in a manner unbecoming" a particular office falls short of setting out the final distillation of the alleged defamatory meaning. Rather, in my opinion, the pleader is required to say in what respect the plaintiff has been said to have acted in an unbecoming manner, at least in circumstances other than those in which the words complained of do no more than suggest that someone has acted in an unbecoming manner without saying in what respect or respects that was done. If that is not done the defendant will be left in doubt as to what is said to be the defamatory act or condition asserted of, or attributed to the plaintiff or with which he is charged by the article, as the word "unbecoming" conveys a wide range of possible attributes. (CfWhelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 154, Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138 and Gascoine v McGinty (1995) 14 WAR 542 at 546-7.)
26 Likewise on this point, there is a decision of the Court of Appeal of New South Wales in Harvey v John Fairfax Publications Pty Ltd [2005] NSWCA 255, where the lead reasons were given by Hunt AJA. I refer, generally, to what Hunt AJA said in those reasons at [118] and following and, in particular, [121], where, by reference to the earlier case of Petritsis v Hellenic Herald Pty Ltd (1978) 2 NSWLR 174, referring to Samuels JA, he had observed:
[I]mputations will invariably be a distillation rather than a restatement of the words which were published. That this must be so is a necessary consequence of the facts that (a) words are but instruments by which people express and convey their meaning …
- Referring to another famous case, Slim v Daily Telegraph Ltd [1968] 2 QB 157; [1968] 1 All ER 497 at [121] Hunt AJA continued:
Very rarely is the act or condition attributed to the plaintiff expressly stated in the matter complained of, rather, it is more usually implied or inferred.
His Honour continued:
But what is clear, beyond the possibility of any contradiction, is that in very few cases will the words of the matter complained of plainly identify the act or condition attributed to the plaintiff of which he complains.
It is not always sufficient that an imputation should repeat the language of the matter published. Sometimes that will be enough, but more often an imputation must distil rather than recapitulate.
28 Defamation cases require bespoken evaluations to be undertaken by reference to the words of every distinct publication. On rare occasions the pejorative terminology of an article will be clear, like using the words 'murderer', 'liar', 'thief', 'cheat', 'paedophile'. For those cases, no more elaboration is needed.
29 Another atypical case, where the word 'corrupt' used in an article was enough to be allowed without any further clarification, was the decision on the plaintiff's list of authorities John Fairfax & Sons Ltd v Foord (1988) 12 NSWLR 706. But each case is different. Scenarios of the precise pejorative imputation being identical in meaning to the words used in a publication complained of is, in day-to-day defamation practice, very much the exception rather than the rule.
Imputation evaluations in this case
30 That leads me to the evaluation of the words of the Media Release publication, which are found quoted in par 6 of the FREASOC claim.
31 Mr Shave is identified expressly in par 1 of the Media Release publication, by reference to him being a 'publican'. Likewise, he is explicitly identified, or there is an explicit reference to a 'publican' in the penultimate paragraph of the Media Release, by the words complained of.
The first imputation: 'misuse'
32 The first of these common imputations is seen under FREASOC pars 8(a) and 11(a), namely that the plaintiff, Mr Shave, was 'misusing' the processes of the West Australian court system.
33 I note that the Media Release does contain these words, namely:
Don Burnett said the actions appear to be a misuse of the Court system.
'This appears to be a blatant misuse of the Court system, where a publican appears to be trying to block competition by trying to overturn a legitimate Council planning decision' he said.
34 The conceptual difficulty I have with allowing the imputations at pars 8(a) and 11(a) is from a perspective of instructing a jury about the alleged harm or sting said to arise. There is no precise distillation of the Media Release words complained of, in terms of how they might possibly hurt Mr Shave's reputation. The very word used in the article is ambiguous and unclear.
35 The words 'misuse' or 'misusing' could be characterised as weasel words in the sense they are malleable and adaptable to different environments and so could carry any number of meanings. It is true, as Gleeson CJ observed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 138, a court should not unnecessarily descend, in effect, towards legal semantics, because most phrases are capable of further elaboration or distillation. The solution upon these sorts of strikeout applications usually ought to be a practical one rather than descending into an unrealistic or artificial process of over-analysis.
36 But each case must carry, as I have now said more than once, a bespoken evaluation of the words complained about.
37 The difficulty here is that it is not at all clear how the plaintiff contends he has been harmed reputationally as regards some variety of his 'misuse' of the processes of the West Australian court system.
38 The assumed hypothecation of the casual reader is one not avid for scandal, using their day-to-day experience and common sense, without deploying a lawyer's precision over words. The casual reader can read between the lines.
39 In the circumstances, I am troubled over the par 8(a) and par 11(a) imputations, in terms of what they might possibly mean. Could it mean that the plaintiff is running a completely meritless court case, to achieve an indirect objective? Could it mean that he is running an arguable case, but without having the intention of pursuing it to a trial, in order to achieve a collateral objective of applying pressure or some other unspecified objective outside the four corners of a result in the litigation?
40 It is by no means clear to me what the intended pejorative meaning might be, in terms of safely directing a jury about what the meaning might be.
41 The plaintiff needs to be a lot more specific, in terms of clarifying the precise act or condition or his wound, if I can use that terminology, for which he contends.
42 It is not acceptable to simply throw back the language of the Media Release, and say, in effect to the defendants, 'You used that language, you work it out'.
43 The plaintiff is the protagonist in this defamation case and so he carries an onus to formulate his precise wound(s) that he complains of arising out of the Media Release.
44 On that basis, the imputation at par 8(a), and its correlative formulation under FREASOC par 11(a), is unclear and confusing. Consequently, they must be struck out as embarrassing pleas.
Second imputation
45 Next, I turn then to assess the imputations at pars 8(b) and 11(b). Those imputations are that the plaintiff argues the Media Release (and the corresponding facsimile) meant, in its natural or ordinary meaning, that the plaintiff:
…was wasting the money of the ratepayers of the City of Kalgoorlie-Boulder by forcing the first defendant to pay legal fees in defending the proceedings.
46 On my assessment, this imputation suffers the same unclear vagueness vice as the first imputation in terms of an overall, unacceptable lack of clarity, especially when it is evaluated from the perspective of potentially running a future defamation trial.
47 In the first place, I would assess the words 'by forcing the first defendant to pay legal fees in defending the proceedings' as pure narrative. They do not aid an understanding of whatever the meaning being driven at really is.
48 It is correct, as has been pointed out, that, in a different publication scenario, to contend that somebody is 'wasting money' may be enough to carry a defamatory meaning that is allowed to go forward and be assessed by a jury. Russell v Win Corp Pty Ltd [2013] ACTSC 159 was such a scenario, although that was a situation in which the waste was contended against Mr Russell - who was the Chief Executive Officer of Airservices Australia. It was his spending of various amounts of so-called 'taxpayers' money' that was, from that article, seized upon and contended to be the imputation that defamed him. In that particular case, the imputation was allowed. I accept that, in that different scenario, a contention that somebody was 'wasting taxpayers' money' may well be a precise enough arguable defamatory imputation, if it arose. But not here.
49 The difficulty presently, for a casual reader, is that this article is talking about the money of local government ratepayers, under a scenario where it is not, even to a casual reader, said that Mr Shave was a member of the first defendant's council. Nor is he someone who held some position of authority connected to the council and which enabled him to spend or authorise spending of ratepayers' money. In fact, here it is quite the contrary.
50 The repeated phrase 'wasting the money of ratepayers of the city' seems to be struggling to re-pitch, in effect, the scenario of money being expended by the City on legal fees incurred defending litigation which Mr Shave has been running against the first defendant (albeit through corporations), thereby, (somehow) causing, or worse than that 'forcing', the City to defend and, thereby, pay out legal fees to its lawyers in the process.
51 Again, the intended meaning is unacceptably unclear. It involves guesswork on my part. It does not suggest to me what the particular vice is. Is it that Mr Shave has commenced proceedings against the City, so the mere fact of his doing so has resulted in the City defending the proceedings, which has caused it to expend ratepayers' money on its lawyers' costs? Is that what is complained of? If it is, then it would seem a difficult imputation to sustain, in a sense of saying nothing about the merits or demerits of the underlying litigation.
52 Or is it some sort of contention that the underlying litigation is totally meritless and is being run for an ulterior purpose or some other formulation?
53 Or perhaps the litigation might have some degree of merit, but is run for a collateral purpose without an intention to run it to trial in order to inhibit or deliver some sort of collateral advantage?
54 The problem is that there has been no sufficient attempt to grapple in a precise way with the nature of the wound to the plaintiff's reputation, from what he complains about from these words.
55 I will evaluate the imputations at pars 8(b) and 11(b) as having their surplus narrative excised, so it only reads 'was wasting the money of ratepayers of the City of Kalgoorlie-Boulder'. Even so, this meaning, first, would not emerge with clarity and, second, would not capture the essence of a distinct imputation injurious to Mr Shave's character, at least at an arguable level, and, third, would cause me longer term concern, from a trial confusion perspective, in terms of leaving such a meaning to a jury, as a decision-maker of fact.
56 Sometimes the test towards what is a reasonable imputation can be approached laterally - asking what the position of a defendant might be, if it sought to plead a defence of justification to that imputation. Here, if I apply that lateral analysis, the answer is again, not clear. The defendants really would not know the case that they were to meet, in terms of what is actually being said against them in terms of a 'wound' or injury said to be suffered to the reputation of Mr Shave by the words.
57 So, in the end, I would strike out both those subparagraphs, on the basis that they are unacceptably unclear - and hence, are legally embarrassing in their formulations.
Third imputation
58 The imputation contended for under FREASOC par 16, is the same as the imputations at pars 8(b) and 11(b), albeit it is said to derive from different words, namely the publication in the Kalgoorlie Miner itself.
59 When I assess what appeared in the Kalgoorlie Miner, from a perspective of evaluating the same imputation, exactly the same problems emerge. These are clarity problems.
60 There may be something else in those words published extractable as a potential pejorative imputation against Mr Shave. But what he has contended for presently is not sufficiently clear.
61 The same meaning as to causing a waste of money of ratepayers of the City of Kalgoorlie, by forcing the City to pay legal fees in defending the proceedings, is argued.
62 It suffers exactly the same imprecision vice as that like formulation does under FREASOC pars 8(b) and 11(b).
Conclusions
63 On that basis, the whole of the FREASOC, which is fundamentally grounded upon its imputations, should be struck out.
64 Other arguments have been directed against the pleas of publication. They are not as serious in terms of the ramifications they carry for a trial.
65 I do think there is some merit in the criticism of par 5, in terms of a plea in particulars of publication on a website, as alleged, being downloaded by one person, needing to be pleaded as a material fact, rather than as particulars.
66 Since this FREASOC will need to be corrected and reissued under leave to amend, leave that I will grant on terms, then that plea at par 5 ought also be corrected.
67 In terms of the second publication, there are difficulties as well, with the plea seen in the particulars of publication under par 10, not the least of which is a reference to Ms Banford as being the recipient of that publication, albeit she is the same recipient of the downloaded first publication from the website of the City.
68 In this area I refer to observations of Le Miere J in passages to which I was taken in Leighton v Garnham [2012] WASC 314 at [59], extending to observations distinguishing between publications in newspapers and publications on websites. With a website publication, it is particularly important there be proper particulars of the material facts, which extend to publication.
69 I do not, however, accept a criticism of the particulars to par 10, about foreshadowing the extent of publication being provided following discovery, interrogatories and subpoenas per se. That is a commonly seen plea. But the other aspects of criticism seem to me to be legitimate and need to be tidied up.
70 Another problem I observe upon now seems to be a reference to the sending of a facsimile to the 'offices' of the Kalgoorlie Miner. Clearly, sending something to an inanimate 'office', per se, is not enough. People who are the alleged recipients and readers of that publication at the 'offices' need to be identified. That deficiency must also be corrected.
71 The third defamatory publication can be treated more generously in terms of publication criticisms made about the earlier two publications.
72 I think it is open as regards a newspaper publication such as the Kalgoorlie Miner, that a publication to persons can be inferred. I do not accept that criticism.
73 Likewise, foreshadowed further particulars about the extent of publication after various interlocutory processes, I think, can be tolerated here. The particulars of alleged identification are sufficient.
74 As crafted, the third defamatory publication, in effect, is being attributed not to the Kalgoorlie newspaper as a defendant, which it is not in this case, but only to the City of Kalgoorlie-Boulder and Mr Burnett as defendants, as having caused it. That approach is open on the authorities. It is allowable on a basis that it seems to be said, chiefly arising out of FREASOC pars 14 and 15, that it was the second defendant's intention to procure a widespread publication which led to the article.
75 That way of complaining about a separate publication against the defendants is open, albeit that action could have been brought directly against the newspaper (see my reasons in Smith v Marshall [2014] WASC 185). It is, of course, a matter for the plaintiff in terms of how he chooses his defendants.
76 The defendants' criticism of par 19's particulars I do not accept, at this point. It is possible for damages to be aggravated by what is pleaded in a defence and also how the litigation is conducted. So particulars which make that plea, I would not strike down.
77 A numbering problem also arises by reason of the current absence of any numbered pars 7, 9 and 17 in the FREASOC. That is a minor deficiency - pointed out to me by counsel for the second defendant. Given that there needs to be a wholesale re-pleading here in any event, the opportunity should be taken to fix that numbering, although had that been the only complaint, it would not of course have justified a strike out application.
Conclusion
78 Overall, bearing in mind that the attacks on the formulated imputations, which are at the heart of this action, have succeeded, the FREASOC, as a whole, must now be struck out. But there will be leave to re-plead.
79 On that basis, I strike out the current statement of claim as a whole, and it must be re-pleaded to correct the deficiencies I have now identified.
SCHEDULE A
- SCHEDULE B
0
13
1