Walsh v Bennetts
[2014] WASC 453
•3 DECEMBER 2014
WALSH -v- BENNETTS [2014] WASC 453
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 453 | |
| Case No: | CIV:2321/2013 | 3 SEPTEMBER 2014 | |
| Coram: | KENNETH MARTIN J | 3/12/14 | |
| 34 | Judgment Part: | 1 of 1 | |
| Result: | Leave to amend defence refused | ||
| B | |||
| PDF Version |
| Parties: | SHARON GWEN WALSH DARREN BENNETTS |
Catchwords: | Defamation Pleadings Leave to file substituted defence Justification Adequacy of plea Evaluation of justification particulars Plea of contextual truth Function of councillor Local Government Act 1995 (WA) s 9.56(2) |
Legislation: | Defamation Act 2005 (WA), s 25, s 26, s 30 Local Government Act 1995 (WA), s 9.56 |
Case References: | Barnes v Addy (1865) LR 9 Ch App 244 Con Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157 Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 Foley v Lord Ashcroft [2012] EWCA Civ 423; [2012] EMLR 25 Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386 Hickinbotham v Leach (1842) 10 M&W 361; 152 ER 510 Ives v The State of Western Australia [No 8] [2013] WASC 277 Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171 Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365 Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194 Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378 Waterhouse v Hickie [1981] Aust Torts Reports ¶81-437 (62,486) Wookey v Quigley [2009] WASC 284 Wootton v Sievier [1913] 3 KB 499 Zierenberg v Labouchere [1893] 2 QB 183 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
DARREN BENNETTS
Defendant
Catchwords:
Defamation - Pleadings - Leave to file substituted defence - Justification - Adequacy of plea - Evaluation of justification particulars - Plea of contextual truth - Function of councillor - Local Government Act 1995 (WA) s 9.56(2)
Legislation:
Defamation Act 2005 (WA), s 25, s 26, s 30
Local Government Act 1995 (WA), s 9.56
Result:
Leave to amend defence refused
Category: B
Representation:
Counsel:
Plaintiff : Mr C Chenu
Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff : Bennett + Co
Defendant : Kitto & Kitto
Case(s) referred to in judgment(s):
Barnes v Addy (1865) LR 9 Ch App 244
Con Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204
Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157
Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Foley v Lord Ashcroft [2012] EWCA Civ 423; [2012] EMLR 25
Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101
Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386
Hickinbotham v Leach (1842) 10 M&W 361; 152 ER 510
Ives v The State of Western Australia [No 8] [2013] WASC 277
Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484
Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365
Maher v Nationwide News Pty Ltd [No 3] [2014] WASC 194
Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493
Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378
Waterhouse v Hickie [1981] Aust Torts Reports ¶81-437 (62,486)
Wookey v Quigley [2009] WASC 284
Wootton v Sievier [1913] 3 KB 499
Zierenberg v Labouchere [1893] 2 QB 183
1 KENNETH MARTIN J: This is another pleadings dispute in a defamation action.
2 The plaintiff opposes leave being granted for the defendant to proceed upon a minute of proposed substituted defence (MOPSD) to the first three publications complained of, under the plaintiff's statement of claim filed 12 March 2014.
3 By way of background the plaintiff's statement of claim runs for 214 pages. It complains of numerous asserted defamatory publications against her by the defendant (29 allegedly defamatory emails) spanning the period 1 February 2013 to 18 August 2013, sent to various persons. The plaintiff additionally complains of a series of six defamatory text messages sent by the defendant in the period between 31 January 2013 and 26 September 2013. She also complains of being defamed in a recorded interview between the defendant and a Ms Nella on about 3 April 2013.
4 The first attempt at a pleaded defence on behalf of the defendant of 5 June 2014, was woefully inadequate. That pleading was struck out, effectively by consent. As a correlative case management measure, I then agreed to a proposal pursuant to which the defendant, effectively on a probationary basis, would file the MOPSD for review, responding only to the first three causes of action as pleaded under pars 1 to 17 of the statement of claim. In other words, the MOPSD would only respond in respect of the first three publications complained of by the plaintiff being:
(a) a communication referred to as the first defamatory email, of 1 February 2013, sent by the defendant at 3.03 am to Mr Allen Cooper, who was the Chief Executive Officer of the Shire of East Pilbara (pars 3 - 7 of the statement of claim);
(b) an email of 12 February 2013 sent by the defendant to the same Mr Cooper after he had responded to the defendant's first email, at 7:03 pm (dealt with under pars 8 to 12 of the statement of claim); and
(c) a further email of 13 February 2013 sent at 1.21 am by the defendant to Mr Cooper under subject heading 'Bias in funding' (dealt with by pars 13 to 17 of the statement of claim).
5 After receipt of the MOPSD the parties conferred over what are still many abiding pleading grievances pressed by the plaintiff. So, in effect then there now arises for resolution what is a de facto strike out application by the plaintiff, in respect of the MOPSD, albeit in a context of opposing leave for the defendant to proceed with his foreshadowed part pleading, by reason of structural deficiencies, which the plaintiff argues still manifest.
6 These are said to be a failure to disclose any reasonably arguable defence, and a lack of adequate particularity, with consequential underlying pleading embarrassment to the plaintiff, in terms of the foreshadowed MOPSD defence pleas.
Four main areas of controversy
7 The nature of the plaintiff's structural grievances against the MOPSD can be grouped into four main areas.
8 First, the plaintiff takes issue with foreshadowed defences of justification, raised in respect of each of the first three publications. Essentially, she contends that on a proper analysis the material assembled by the defendant does not provide a legitimate arguable platform of fact for the defendant at a trial, to sustain the substantial truth of the plaintiff's imputations - either at common law, or under s 25 of the Defamation Act 2005 (WA) as amended. This first grievance arises in respect of all three of the email communications currently under scrutiny.
9 Second, the defendant has additionally raised defences of contextual truth to the first and third emails. As to these, the plaintiff contends that they are conceptually misconceived as a matter of law and so, do not disclose any arguable defence. In other words, the plaintiff contends that the defendant's attempts to invoke the statutory defence of contextual truth by s 26 of the Defamation Act, on analysis, do not legitimately meet the requirements of that provision.
10 Third, the defendant has also sought to invoke in respect of each of the three allegedly defamatory emails, a distinct statutory defence, under s 9.56(2) of the Local Government Act 1995 (WA). This is on the basis that the defendant is for the purposes of that section, a 'protected person' (see s 9.56(1)(a)). This is said to be because he was, at relevant times, an elected councillor of the Shire of East Pilbara and therefore a 'member of the council'. Hence he argues that his emails concerning the plaintiff, challenged as defamatory of her, are protected under s 9.56(2). This law provides:
An action in tort does not lie against a protected person for anything that that person has, in good faith, done in the performance or purported performance of a function under this Act or under any other written law.
- Questions therefore arise about whether the defendant's emails were arguably sent whilst in performance or purported performance of a function by him under the Local Government Act, or under another written law. That proposition is thoroughly disputed by the plaintiff, who at material times was employed by the Shire of East Pilbara as a 'Manager Community Wellbeing'.
11 The plaintiff says that the very nature and contents of the three emails about her which the defendant sent to the CEO of the Shire of East Pilbara, from his personal email address, amply demonstrate that they were sent by the defendant in a wholly private capacity. Accordingly, they are not possibly capable of meeting the required s 9.56(2) criterion of constituting conduct by the defendant in the performance, or purported performance, of a relevant 'function'. Nor could these communications be viewed as arguably constituting conduct undertaken in good faith by this defendant, so it is said.
12 Fourth, the plaintiff complains of a conceptual deficiency in the defendant's foreshadowed invocation and reliance upon the statutory defence of qualified privilege, pursuant to s 30 of the Defamation Act. Such a plea is raised by par 6.5.4 of the MOPSD and subsequent pleas. The proposed defence to the second and third emails incorporates that earlier plea by reference: see as regards the second email, par 11.4 of the MOPSD, and as regards the third email, par 16.5.
13 Essentially, this fourth grievance is a derivative one. It is predicated upon the asserted deficiencies in the material assembled under earlier pleas of substantial truth - contended to be inadequate. Those conceptual inadequacies then travel across to conceptually infect the pleas of statutory qualified privilege. In addition a further plea under particulars to par 6.5.4, expressing an explanation as to why the defendant did not seek a response from the plaintiff to the subject matter of the emails before dispatching them to the CEO of the Shire of East Pilbara, is conceptually challenged as being misconceived.
14 Before turning to evaluate each of these grievances, I will render some very brief observations concerning the state of the law in the familiar territory of interlocutory pleading challenges of this character, in a defamation context.
Pleading challenges: defamation
15 For the application I had the benefit of the plaintiff's written submissions of 17 July 2014. These were responded to by the defendant's written submissions of 31 July 2014.
16 For its part the plaintiff accepts a relatively undemanding strike out threshold for a pleading to survive, or conversely, a stringent threshold she must surmount, in order to strike out a pleading as failing to disclose an arguable cause of action, or as here, to show an arguable defence.
17 Essentially however, the plaintiff contends that a defendant's plea of justification or substantial truth is a serious matter, especially where the imputation justified is as grave as raising dishonesty or corruption. Such a defence must reveal proper details by adequate particulars: see Gatley on Libel and Slander (12th ed, 2013) by Mullis A and Parkes R at [27.11]. There the learned authors observe:
Where a serious allegation of dishonesty is made against the claimant, there is a particular obligation on the defendant to plead full details of that allegation, setting out what was alleged to have been known by whom. However, it remains an open question whether the pleading of such allegations by way of justification is subject to less stringent requirements than those applied in other contexts, such as pleading malice to defeat a defence of qualified privilege or honest comment. (footnotes omitted)
18 At footnote 72, the authors refer to the English Court of Appeal decision Foley v Lord Ashcroft [2012] EWCA Civ 423; [2012] EMLR 25.
19 On the other hand, the defendant invokes modern principles of case flow management. He contends particularly as regards his justification defences, that the plaintiff really knows, or is being coy as to what the defendant is saying and that he should not be subjected to trivial or pedantic criticisms. He also rejects the criticism that a number of his particulars are conclusionary in character, rather than evidentiary, invoking the reasons of French J (as his Honour then was) in Kernel Holdings Pty Ltd v Rothmans of Pall Mall (Australia) Pty Ltd (1991) 217 ALR 171, noting his Honour's observation:
The real issue in a case where such an objection is raised is whether the facts are pleaded at too great a level of generality.
20 In essence, the defendant deprecates as outdated the plaintiff's invocation (as regards the standard of the particulars which he has offered to date in respect of his pleas of justification and substantial truth) of the strictness of a line of defamation case authority covering pleas of truth, stretching back to include J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 (referred to by me in Maher v Nationwide News Pty Ltd [No 3][2014] WASC 194 [31]); Hickinbotham v Leach (1842) 10 M&W 361, 363; 152 ER 510 (with its well remembered observation that 'the plea ought to state the charge with the same precision as in an indictment'); Zierenberg v Labouchere [1893] 2 QB 183, 187, 190; Wootton v Sievier [1913] 3 KB 499, 503; and the further observations upon this line in Foley v Lord Ashcroft to which I have referred (particularly [58] per Pill and Sharp JJ).
21 From a policy perspective the submissions of both parties carry some weight from their rival perspectives. There is a middle-ground. At the end of the day, what is required is a balancing consideration measured against the particular presenting circumstances of each uniquely asserted defamatory publication.
22 Clearly, however, where there is a potential involvement of a jury at a trial, with defamatory imputations in play of the utmost seriousness, such as fraud, corruption or dishonesty, then courts will naturally exhibit a particularly scrupulous level of caution towards ensuring that the materials assembled by the defendant are at least respectably arguable, in terms of the foreshadowed content of evidence to be adduced at a trial. That is particularly so in a defamation trial, bearing in mind the capacity of an unsuccessful defence of justification to provide a basis for a plaintiff's claim of prolonging the defamation and thereby generating an entitlement to aggravated damages: see my observations in Maher v Nationwide News Pty Ltd [No 2] [2013] WASC 365 [10(f)].
23 It is also important to remember that a plea of justification responds to the imputation raised by the plaintiff out of a defamatory publication, not the whole content of the publication itself.
24 It becomes necessary then to examine each of the three allegedly defamatory emails separately. I can now proceed to evaluate the respective four areas of pleading challenge as advanced by the plaintiff and strongly resisted by the defendant.
First email
25 I will not set out the full content of the defendant's email of 1 February 2013 sent at 3:03 am to Mr Cooper. The full content of that communication, which was sent under the subject heading 'Tender Process - Query On Process Applied' is found in par 3 of the statement of claim.
26 The plaintiff extracts and complains of only one defamatory false innuendo arising from that publication - under par 6 of the statement of claim.
27 The imputation, which has not been challenged by the defendant under any interlocutory attack, is in these terms:
6. The First Defamatory Email was defamatory in its natural and ordinary meaning and was meant and was understood to mean that the Plaintiff, in her role as Shire Manager, dishonestly manipulated the tender process because of her personal bias against the Defendant.
28 The defendant's proposed defence of substantial truth to this imputation appears under par 6.2 of the MOPSD. Particulars of justification follow between subpars (a) through (v), all of which it is, regrettably, necessary to set out:
Particulars
(a) At all material times, the plaintiff was employed as Manager Community Wellbeing by the Shire of East Pilbara (the Shire).
(b) At all material times, to the knowledge of the plaintiff, the defendant was an elected councillor of the Shire and the sole shareholder of the Company, which traded under the name 'Tools of the Trade'.
(c) The plaintiff and the defendant conducted an intimate personal relationship between January 2011 and April 2012.
(d) Although the parties were both married at the time of the relationship, they lived together and discussed the establishment of their relationship on a more permanent footing.
(e) In April 2012, the defendant terminated his relationship with the plaintiff as a result of discovering that, during their relationship, the plaintiff had been unfaithful to him and conducted a relationship with another man, Mr Darren Horton.
(f) The plaintiff's relationship with Mr Horton continued after her intimate relationship with the defendant ended in April 2012.
(g) The relationship between the plaintiff and the defendant has been acrimonious since their intimate relationship ended in April 2012.
(h) The plaintiff has, since her relationship with the defendant ended in April 2012, evinced a high degree of animosity towards the defendant, which manifested itself as follows:
(i) on or about 22 August 2012, the plaintiff and the defendant coincidentally attended the same 'step' class at the Newman Recreation Centre;
(ii) on seeing the defendant, the plaintiff immediately left the Newman Recreation Centre; and
(iii) shortly after the defendant [sic: plaintiff] left the Newman Recreation Centre, Mr Horton arrived at the Centre and physically assaulted the defendant, pushing him and threatening further to strike him.
(i) The defendant was so fearful for his safety, as a result of the conduct of the plaintiff and Mr Horton, that, on 22 August 2012, the defendant applied for and was granted an interim restraining order against Mr Horton in the Newman Magistrates Court.
(j) On or about 19 October 2012, the defendant was contacted by Debbie Cooke (an employee of the Shire, who worked with the plaintiff) in relation to a tender for the supply of sound equipment to the Marble Bar Theatre.
(i) The defendant was requested to design, specify and price three options for the community theatre sound system at Marble Bar.
(l) Another supplier was also requested by the Shire to tender for the job.
(m) Neither the defendant nor the other supplier was given any specifications for the proposed work by the Shire.
(n) On or about 7 December 2012, the defendant, through the Company, provided a tender to the Shire covering the designs, specifications and prices of three different options for the supply of sound equipment for the community theatre at Marble Bar.
(o) The tender provided by the defendant, on behalf of the Company, to the Shire was for a customised, serviced sound system specifically designed, specified and priced by the defendant to meet the requirements of the Shire.
(p) The defendant, on behalf of the Company, responded to a number of technical queries directed to him by the Shire in relation to his tender.
(q) In or about December 2012, the other supplier also provided a tender to the Shire for the supply of sound equipment for the community theatre at Marble Bar.
(r) The tender of the other supplier was for the supply only of a low budget sound system.
(s) On or about 21 January 2013, the plaintiff directed Ms Cooke to give the design and specification tender information of the Company, prepared on its behalf by the defendant, to a competing supplier.
(t) By the plaintiff directing Ms Cooke to give the competing supplier the Company's tender information, the competing supplier, to the knowledge of the plaintiff, was given an unfair advantage in the tender process over the Company.
(u) The plaintiff knew that the Shire's procurement policy required that, at least, 3 quotations be obtained for Shire work on the basis that each potential supplier be given an equal opportunity to tender for such work on the basis of the same information.
(v) The plaintiff knew that, in giving the Company's tender information to a competing supplier, she was acting contrary to the procurement policy of the Shire and adversely to the legitimate interests and expectations of the Company and, therefore, the defendant, in relation to the tender process.
Justification
29 This assembled material particularised is capable of providing some evidentiary foundation for a personal bias in the plaintiff against the defendant, based on their asserted one time personal love affair, across January 2011 to April 2012. At that time they lived together, but then broke up in April 2012. The plaintiff is then contended to have formed a new relationship with another man, also called Darren, surname Horton.
30 But the particulars of justification on my assessment, then present as being wholly inadequate as regards potentially responding towards the elements of the innuendo raising dishonesty and manipulation of the Shire's tender process - in the context of what was the defendant's business' unsuccessful tender to supply sound equipment for the Marble Bar theatre through his company, Solid Rock Services Pty Ltd trading under the name 'Tools of the Trade'.
31 The heart of that dishonesty and manipulation contention only emerges out of particulars (s) to (v) - which relate to another tenderer, and in terms of alleged preferential treatment of that ultimately successful competing supplier. That successful tenderer was apparently approached late, allegedly at the plaintiff's direction, and then, advantageously it is said, as the last tenderer, received a copy of the Tools of the Trade design and tender specification information.
32 The defendant would have it that provision of this insightful competing tenderer's material comprising the defendant's own competing tender bid, reaching the hands of the last rival tenderer (making three tenderers in total, as required by the Shire's procurement policy), was a violation of the Shire's procurement policy. The third and ultimately successful rival supplier of sound equipment had received, so it is put, an unfair tendering advantage. He could undercut the earlier bids using that knowledge and, using it, was ultimately successful in obtaining the Shire's supply contact for the Marble Bar sound equipment.
33 But on my analysis of the particulars, they spectacularly fail to provide any legitimate foundation for an argument at trial capable of being left to a jury, concerning any manipulation by the plaintiff of the Shire's tender processes, let alone a dishonest manipulation of that tender process.
34 There may well be some knock-on consequences for a Shire employee arising from any proven failure to follow guidelines, legislation or regulations on tenders.
35 However, I note that there is absolutely nothing detectable in the particulars, in my view, to suggest that the plaintiff was to derive any personal advantage, or profit out of the success of another rival supplier in winning a contract to provide sound equipment for the Marble Bar theatre to the Shire of East Pilbara: cf Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, with Toohey and Gaudron JJ noting at [30] that '[o]rdinarily … fraud involves the intentional creation of a situation in which one person deprives another of money or property' (albeit in the context of the offence of conspiracy). Their Honours also noted that it could include putting the money or property of others at risk, or prejudicing their interests - if that was intentional.
36 But whatever might be said about potential (unpleaded) theories concerning a vindictiveness of the plaintiff, or a desire by her to get back somehow at the defendant as an ex-lover, none of that, even if pleaded, rises to show any arguable basis to show a dishonest manipulation of the Shire's tender processes by her.
37 As regards 'dishonesty', the meaning of that term will undoubtedly be shaped by reference to the particular context in which it is used on a case by case basis. Nevertheless, the well remembered observations by Lord Nicholls of Birkenhead in Royal Brunei Airlines Sdn Bhd v Tan [1995] 2 AC 378, referred to by the High Court in Giumelli v Giumelli [1999] HCA 10; (1999) 196 CLR 101 [4] present as insightful, albeit rendered in the different context of arguments concerning constructive trusts and the limbs of Barnes v Addy (1865) LR 9 Ch App 244.
38 The observations concerning dishonesty of Lord Nicholls delivering the judgment of the Privy Council are at 389. His Lordship said
in the context of the accessory liability principle acting dishonestly, or with a lack of probity, which is synonymous, means simply not acting as an honest person would in the circumstances. This is an objective standard. At first sight this may seem surprising. Honesty has a connotation of subjectivity, as distinct from the objectivity of negligence. Honesty, indeed, does have a strong subjective element in that it is a description of a type of conduct assessed in the light of what a person actually knew at the time, as distinct from what a reasonable person would have known or appreciated. Further, honesty and its counterpart dishonesty are mostly concerned with advertent conduct, not inadvertent conduct. Carelessness is not dishonesty. Thus for the most part dishonesty is to be equated with conscious impropriety. However, these subjective characteristics of honesty do not mean that individuals are free to set their own standards of honesty in particular circumstances. The standard of what constitutes honest conduct is not subjective. Honesty is not an optional scale, with higher or lower values according to the moral standards of each individual. If a person knowingly appropriates another's property, he will not escape a finding of dishonesty simply because he sees nothing wrong in such behaviour.
In most situations there is little difficulty in identifying how an honest person would behave. Honest people do not intentionally deceive others to their detriment. Honest people do not knowingly take others' property. Unless there is a very good and compelling reason, an honest person does not participate in a transaction if he knows it involves a misapplication of trust assets to the detriment of the beneficiaries. Nor does an honest person in such a case deliberately close his eyes and ears, or deliberately not ask questions, lest he learn something he would rather not know, and then proceed regardless.
39 Those observations, albeit in a different context and albeit the law concerning constructive trusts has now developed somewhat differently in Australia, are nevertheless a helpful starting point to understand and explain the concept of dishonesty, particularly by highlighting a usual need to show some advertent conduct on the part of someone.
40 The plaintiff is focussing attention on where in the defendant's particulars there may be found arguably something that is capable of meeting a touchstone of being a dishonest manipulation of the Shire's tender process: see also Peters, and Farrah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [173] (Gleeson CJ, Gummow, Callinan, Heydon & Crennan JJ).
41 On my assessment, all that has been pointed to by the defendant's particulars is just that the defendant's business was one of two losing tenderers. Whilst the successful tenderer may have received some advantage, arising out of a possible imperfect application of the Shire's tender process, by gaining insight towards the competing tender by the defendant's business, that feature alone is no basis to support the very serious plea of dishonesty put against the plaintiff. Nor is it a basis to even suggest manipulation, which implies intent.
42 I can ascertain no potentially arguable dishonest manipulation of the Shire's tender process by the plaintiff, from the current particulars.
43 Accordingly, the plaintiff's challenge against par 6.2 must succeed and that paragraph and its particulars cannot be the subject of any grant of leave to amend in such terms.
Contextual truth
44 Whilst dealing with the defendant's proposed response to the first email, it is convenient to move to evaluate the other challenge of the plaintiff, as regards the defendant's plea of contextual truth, under par 6.3.
45 Here the defendant would seek to invoke s 26 of the Defamation Act, contending for this contextual truth imputation (par 6.3.1):
The first email carried, in addition to the defamatory imputation of which the plaintiff complains, the imputation that the plaintiff, in her role as Shire Manager, dishonestly manipulated the tender process of the shire because of her personal bias in favour of the defendant.
46 A difference between the plaintiff's false innuendo imputation under par 6 and the defendant's mooted contextual imputation, arises out of the words 'in favour of' as regards an asserted personal bias of the plaintiff. To advance this defence, the defendant relies upon distinct particulars, found under par 6.3.2 of the MOPSD at (e) through (s) (par 6.3.2(a) through (d) merely replicate (a) to (d) of the earlier particulars under 6.2 as already seen).
47 Because they bear upon what is raised in respect of ensuing publications, it is again necessary to set out these proposed particulars of contextual truth at (e) through (s), as found between pages 5 - 7 of the MOPSD. They are directed to another aspect of the first email - at that point the defendant was contrasting his company's success obtaining the award of an earlier tender contract from the Shire for an installation of some tennis court and netball court lights, and a gate's automation system, in Newman. That tender success for the defendant came during a period when the intimate personal relationship the defendant contends existed between himself, and the plaintiff, from January 2011 to April 2012, was in full bloom. This was, to paraphrase a Presley classic song title, a case of 'Love Me = Tender'.
48 Part of the defendant's email communication to the CEO had asserted:
I think the reasonable cause for the two tenders to have been handled so differently, was the status of my personal relationship with SW at the time of each tender submission.
When I was in favour with SW, fair competition and fair procedure was absent, even when SW was spending a higher amount of money on the tennis court light and gate system. When i [sic] was out of favour with SW, my specification was taken without my permission and given directly to a specially called in competitor, and the award of the tender has been delayed and scrutinised unusually closely.
This disparity in process, indicates to me a repeated application of personal bias by SW, in the selection of my company's bids for supply of goods and services, for the Shire of the East Pilbara.
49 The plaintiff's conceptual objection raised against the attempted plea of contextual truth, is that it does not meet the requirements, even arguably, of s 26(b) of the Defamation Act.
50 To understand that challenge, I need to set out the entirety of the twin limbs of s 26:
26. Defence of contextual truth
It is a defence to the publication of defamatory matter if the defendant proves that -
(a) the matter carried, in addition to the defamatory imputations of which the plaintiff complains, one or more other imputations (contextual imputations) that are substantially true; and
(b) the defamatory imputations do not further harm the reputation of the plaintiff because of the substantial truth of the contextual imputations.
51 In short, the plaintiff says that the proposed contextual imputation is not of a character to allow s 26(b) to be fulfilled, because it is at best, only an imputation of, at most, equivalent harm. The consequence is that the false innuendo complained of by the plaintiff still retains its defamatory force and inflicts reputational harm. Because of that 'further harm' is still done by that innuendo and hence, s 26(b) cannot be met, so it is said.
52 During oral argument the central controversy over this issue distilled to whether a contextual imputation that is accepted to be of only 'equal magnitude' to the imputation complained of by the plaintiff, is arguably enough to meet the threshold of s 26(b). In particular, reference was made by the plaintiff to cases which speak of the contextual imputation being so serious that, if proven as substantially true, it would 'swamp' the harm of the plaintiff's proven imputation. Argument proceeded upon a basis of the defendant accepting that his contextual imputation under par 6.3.1, was no more serious or harmful than the plaintiff's innuendo.
53 That clash of perspectives raises something of a novel point requiring a consideration of case authority. To that end, I was referred to a number of decisions, including the observations of McColl JA in the New South Wales Court of Appeal in Fairfax Media Publications Pty Ltd v Kermode [2011] NSWCA 174; (2011) 81 NSWLR 157, particularly at [78] - [81] (which in turn I had referred to and applied in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [58]). Her Honour in that decision made some observations concerning a predecessor contextual truth provision applicable in New South Wales, before s 26 of the uniform Defamation Acts. The predecessor was s 16 of the Defamation Act 1974 (NSW). McColl JA observed that s 16, to some extent, informed the understanding of the more recent s 26, but nevertheless, was not 'decisive as to its operation in the context of the [uniform] Act'.
54 In the Kermode appeal McColl JA at [85], had approved some observations by Hasluck J in this court, in Wookey v Quigley [2009] WASC 284 [62]. His Honour had said:
My understanding is that this provision [s 26] covers the situation where the plaintiff draws a particular allegation out of the material complained of but ignores some other more serious allegation, possibly because the defendant might be able to justify it. In that situation it is open to the defendant to raise and justify the more serious imputation in order to establish that the plaintiff's reputation has not actually been damaged as alleged by the plaintiff in seeking to confine his complaint to the less serious imputation selected by him. (my emphasis in bold)
55 McColl JA concluded in the Kermode appeal at [85], as regards Hasluck J's observations from Wookey:
A defendant will be able to defeat a plaintiff's cause of action if its substantially true contextual imputation(s) outweigh the plaintiff's defamatory imputations. A plaintiff will not be able to avoid serious stings in defamatory matter by selective pleading. (my emphasis in bold)
56 Those observations also accord with my understanding of the workings of a contextual imputation under s 26: see Kingsfield Holdings [58] - [59], where I referred to Le Miere J's more recent observations collecting much of the law in this area, in Ives v The State of Western Australia [No 8] [2013] WASC 277 [81] - [89].
57 As regards defective pleas of contextual truth in the Kingsfield Holdings decision, I had observed:
Hence, they cannot carry a differentiating quality towards showing a more serious imputation, something of a distinct character which might conceptually swamp the reputational harm from the imputations pleaded by the plaintiff, if established [59].
58 From his perspective, the present defendant has assembled a respectable body of case authority to advance a proposition that for the purposes of meeting s 26(a), a defendant must show that 'such imputations differ in substance from the plaintiff's imputations', referring to Nicholas J in Con Ange v Fairfax Media Publications Pty Ltd [2011] NSWSC 204 [27], applied subsequently in Kelly v Fairfax Media Publications Pty Ltd [No 2] [2014] NSWSC 166 [13] by McCallum J.
59 There is no difficulty at all, as I would see it, in accepting a requirement that a contextual imputation must differ in substance from the plaintiff's imputation. For the purposes of the argument, I accept that the inverse character of the response under what is proposed by the defendant here, could meet that standard of differentiation (that is, a personal bias in favour of the defendant, rather than the plaintiff's imputation concerning a personal bias against the defendant). But the conceptual deficiency complained of is different. It is simply that the relative equivalency, in terms of reputational harm done from the rival imputations, is an insufficient basis to meet the requirements of s 26(b).
60 In my view, that different grievance is the abiding conceptual problem in the present case. I would also respectfully note the observations of Hunt J in Jackson v John Fairfax & Sons Ltd [1981] 1 NSWLR 36 [40], approved by Priestley JA (Powell JA agreeing) in Waterhouse v Hickie[1981] Aust Torts Reports ¶81-437 (62,486), 62,493 - 62,494: see also further reference to this line of cases in John Fairfax Publications Pty Ltd v Hitchcock [2007] NSWCA 364; (2007) 70 NSWLR 484 [187], [199], [210] (McColl JA); and Kermode [65], [68], [71] (McColl JA).
61 In Jackson v John Fairfax & Sons Ltd, apart from the substantive difference requirement (as regards s 16 of the New South Wales Defamation Act 1974), Hunt J also identified the need for an affirmative answer to this question of law:
3. Is the nature of the contextual imputation such that its substantial truth is capable of being rationally considered by the jury as so affecting the plaintiff's reputation that the imputation of which the plaintiff complains did not further injure that reputation?
62 Later, in Hepburn v TCN Channel Nine Pty Ltd [1984] 1 NSWLR 386, Hunt J further observed as regards s 16(2)(c) of the Defamation Act 1974 (NSW), at 405C:
The defence [of contextual truth] does not raise an issue simply of whether the combined effect of the defendant's contextual imputations is greater than the effect of the plaintiff's imputation to which they are pleaded. The defendant would not succeed even if the jury were satisfied that that was the situation, for obviously the plaintiff's imputation would still have some effect upon the plaintiff's reputation notwithstanding the effect of the truth of the defendant's contextual imputations. I am told that, in a previous unreported judgment of mine, I referred to the defendant's contextual imputations as 'in effect swamping' the plaintiff's imputation. Certainly, if that were the situation, the defence of contextual truth would succeed. But it is not necessary that the defendant's contextual imputation should 'swamp' the plaintiff's imputation. That is to put it too high altogether, if indeed that is what I said … But the defendant must satisfy the jury that, such is the nature of his contextual imputations, their truth so affected the plaintiff's reputation that the publication of the plaintiff's imputation to which they are pleaded did not cause additional injury to that reputation. (emphasis in original)
63 From those later observations by Hunt J it is apparent that my use of the term 'more serious imputation' was accurate, but the further deployment of the word 'swamp' at [59] in Kingsfield, was as Hunt J explained in Hepburn, too highly put, for reasons explained in that passage.
64 I also note the observations concerning partial truth by the authors of Gatley on Libel and Slander at [11.16], as regards what is a somewhat distinct defence under s 5 of the Defamation Act 1952 (UK) c 66 and its successor s 2(3) of the Defamation Act 2013 (UK) c 26.
65 I note as well that in Ives [No 8], the second basis upon which the State's contended contextual imputation failed was:
[92] [t]he imputations pleaded by the State are less serious than the imputation which I have found to arise from the words spoken.
66 It is apparent as regards the plea of contextual truth under par 6.3.1 and then later as regards the third defamatory email, at par 16.3.1, that the proposed contextual imputations are not more serious than the plaintiff's own imputations.
67 On that basis, they are conceptually misconceived, and so cannot be allowed under any grant of leave to amend.
Statutory defence by s 9.56(2) of the Local Government Act 1995 (WA)
68 A defamation action clearly is an action in tort. The defendant, as an elected member of the council of the Shire of East Pilbara, in that capacity, would meet the definition of a 'protected person' for the purposes of satisfying s 9.56(1).
69 The key issue then is whether the circumstances of the defendant's publication of the three allegedly defamatory emails concerning the plaintiff, can arguably be said to have been conduct of the defendant that was 'done in the performance or purported performance of a function under [the Local Government Act] or under any other written law' (my emphasis) for the purposes of s 9.56(2).
70 Upon my assessment of the first and second allegedly defamatory emails it is clear that this key threshold simply cannot be arguably met by the defendant. The content of the first email speaks for itself, sent as it was to the CEO of the Shire at 3:03 am by the defendant under its subject heading 'Tender Process - Query On Process Applied'.
71 My assessment of that communication indicates it expresses an entirely private grievance of this defendant, made essentially as proprietor of an unsuccessful corporate tenderer to supply to the Shire the audio equipment for a theatre system at Marble Bar. I can detect no hint here of the arguable discharge of a 'function' in this email communication, for the purposes of any relevant legislation.
72 It is clear from a reading of s 9.56(2) in context that it is not enough that the defendant happens to be, at the time, a member of the Shire council. The words 'in the performance or purported performance of a function', impose a requirement, additional to mere membership in one of the s 9.56(1) classes of protected person. They focus attention on the capacity in which a defendant is acting, or purporting to act at the time they publish a defamatory statement (ie the time of the tort). This becomes even clearer when one takes into account s 9.56(5), which states
a reference to the doing of anything by a protected person in the performance or purported performance of a function under any written law other than this Act is limited to a reference to the doing of anything by that person in a capacity described in subsection (1)(a), (b) or (c), as the case may be. (my emphasis)
73 The first email was sent from '[email protected]', which I interpolate is most likely an email address used to send and receive correspondence on behalf of the defendant's company, Solid Rock Services Pty Ltd trading as 'Tools of the Trade'. In terms of the body of the email, the following words stand out as relevant in the present evaluation:
• par 2: 'personal bias against myself & my company';
• par 3: 'Initially my company';
• par 5: 'My company then designed … . In selecting that equipment I relied on knowledge gained when I flew to Melbourne and Sydney … . I personally ensure high standards of quality & reliability are delivered in my specifications. I do not believe any other supplier was asked to provide … ';
• par 6: 'My company included personal delivery to Marble Bar';
• par 7: 'We included 24/7 phone support';
• par 8: 'I am of the belief that it was recognised that my company's specification was found to be what it was';
• par 12: 'That third tenderer was offered my company's design';
• par 13: 'I believe this approach is unfair and unusual, and would have been prejudiced our chances of winning the tender';
• par 21: 'My company conceived, researched and engineered'; and
• par 23: 'My company was just given the project'.
74 Those extracts, of course, omit much of the body of the first email. But, viewed as part of that overall context, it is obvious that although the defendant was co-incidentally a Shire council member at the time this publication was made to the Shire's CEO, in sending the email, the defendant was acting and purporting to act as a company director expressing what was a private tender process grievance as a losing tenderer on behalf of his (unsuccessful) enterprise. In trying to cast the first email as s 9.56 protected conduct, the MOPSD impermissibly elides a bare membership of a Shire council and the actual performance of a statutory function.
75 The first email ended (see quotation above) on the basis of expressing a grievance about a disparity of outcomes, as the defendant framed it, 'in the selection of my company's bids for supply of goods and services, to the Shire of East Pilbara'.
76 Accordingly, a s 9.56 defence is wholly untenable for the first email. Likewise that is so as regards the second email, which I examine shortly. The statutory defence presents a more arguable exercise as regards the third email, as I will explain later, in that context.
Qualified privilege
77 The last conceptual grievance raised by the plaintiff attacks the defendant's plea (see par 6.5.4), on a basis of a conceptual challenge against the phrase:
the conduct of the defendant in publishing the First Email was reasonable in the circumstances.
78 Under that plea follow particulars of reasonableness, in terms:
(a) The defendant repeats the matters set out in the particulars at 6.2, 6.3.2 and 6.4 above, of which he had personal knowledge.
(b) The First Email was published on only one occasion to only one person, the Chief Executive Officer of the shire, in his capacity as such.
(c) In the circumstances, the defendant did not seek a response from the plaintiff to the subject matter of the First Email, but left an investigation in relation to the conduct of the plaintiff to the Shire to undertake.
79 At the hearing of arguments, the plaintiff abandoned the initial attack upon par 6.4(e), concerning the defendant's common law invocation of qualified privilege. As regards the defendant's alternate qualified privilege plea invoking s 30 of the Defamation Act, a foreshadowed attack from the written submissions (par 66) was clarified, as being directed at par 6.5.3 and its phrase 'engaging in the dishonest manipulation of the Shire's tender process, involving the use of Shire funds, because of her personal bias, at different times, in favour of and against the defendant'. But this challenge was not ultimately pressed.
80 A truncation in the plaintiff's attack left the remaining essential qualified privilege defence grievance as only directed at the plea of reasonableness, seen above under par 6.5.4 (and counterpart statutory qualified privilege pleas, as regards the subsequent alleged defamatory publications).
81 In the first place, the plaintiff reiterated conceptual attacks against the pleas of justification and contextual truth, contending then that those deficient pleas 'are not factors the Court may take into account when determining reasonableness pursuant to s 30(3) of the Act': plaintiff's submissions par 68. That derivative infection submission is misconceived. The now established deficiencies in the defendant's pleas, as regards justification and contextual truth - do not necessarily mean that those deficiencies carry over automatically, as deficiencies in a distinct context of an assertion of reasonableness - for the purpose of s 30(1)(c) (essentially a factual plea) and then, the identification under s 30(3) of a non-exclusive array of factors the Court 'may take into account'.
82 The heart of the residual attack was therefore directed in the end against a particular seen under par 6.5.4(c), as regards the conceptual legitimacy of that plea, concerning the defendant's failure to seek a response from a plaintiff (with a carryover effect, as regards the pleas in par 11.4 and par 16.5 of the MOPSD). The plaintiff's submission at par 71 is:
The Plaintiff is unable to respond in circumstances where the Defendant has not properly articulated the circumstances upon which he relies to substantiate that the publication of the First Defamatory Email, Second Defamatory Email and Third Defamatory [sic: Email] was reasonable.
83 The plea under 6.5.4(c) looks to have been fashioned with an eye to the content of s 30(3)(h) and (i) Defamation Act.
84 Some circumstances (see the discussion of this issue in the context of a newspaper's criticism of a judicial officer) may draw such considerations into sharp focus from a perspective of assessing whether the publisher's conduct has been reasonable or not: see The Herald & Weekly Times Ltd v Popovic [2003] VSCA 161; (2003) 9 VR 1, particularly [88], and a quotation by Gillard AJA from Rogers v Nationwide News Pty Ltd [2003] HCA 52; (2003) 216 CLR 327 [30] (Gleeson CJ and Gummow J). But their Honours there recognised that there may be cases in which giving the plaintiff an opportunity to respond to a proposed publication may not be 'practicable', or may be 'unnecessary'.
85 In my view, there is no conceptual infringement as regards the defendant's attempt to meet the criteria of reasonableness, for the purpose of s 30 that is manifested under this particular.
86 That observation carries through to the protection of the defendant's later pleas, under par 11.4 and par 16.5.
Conclusion: First email
87 In summary, as regards the first email, the plaintiff's challenges raising the inadequacy of the defendant's particulars of justification, his plea of contextual truth and what is a misconceived invocation of the statutory defence under s 9.56(2) of the Local Government Act - must all be accepted.
88 The end consequence is that leave to amend under the MOPSD in those respects, must be refused.
Second email
89 This publication, also by email of 12 February 2012 at 7:03 pm, was again sent by the defendant to the Shire of East Pilbara CEO, Mr Cooper. Its content is found under par 8 of the statement of claim.
90 The imputations which the plaintiff seeks to draw from this publication are at par 11 of the statement of claim. They have not been challenged by the defendant at the interlocutory level. The plaintiff's three false innuendos as formulated are:
11. The Second Defamatory Email was defamatory in its natural and ordinary meaning and meant and was understood to mean that the Plaintiff:
11.1 in her role as Shire Manager, accepted bribes from the Defendant for awarding his company supply contracts;
11.2 engaged in corrupt conduct in her position as a Shire Manager; and
11.3 whilst engaged as Manager Community Wellbeing for the Shire of East Pilbara dishonestly manipulated the Shire tender process for her own indirect benefit.
92 As regards the first imputation, (namely 'accepted bribes'), the defendant repeats particulars earlier provided in respect of his plea under par 6.3.2, and which I might colloquially refer to as his tennis court lighting tender success material. I set out that material earlier in these reasons.
93 I pause at this point to note the reciprocal workings of s 82 of the Criminal Code (WA), as regards the giving of a bribe to a public officer. The present imputation therefore raises issues of some serious criminality concerning the defendant as well:
Any public officer who obtains, or who seeks or agrees to receive, a bribe, and any person who gives, or who offers or promises to give, a bribe to a public officer, is guilty of a crime and is liable to imprisonment for 7 years.
94 Concerning the second imputation (namely, 'corrupt conduct') the defendant repeats the particulars given under par 6.3.2. But now, in addition, he incorporates the particulars given under par 6.2, which I might colloquially refer to as the Marble Bar audio system tender failure materials.
95 As regards the third imputation, namely the 'dishonest manipulation' of the shire tender process for the plaintiff's 'indirect benefit', the defendant again invokes the same par 6.3.2 particulars concerning his tennis/netball court lighting tender success, but he also adds the following material, by par 11.2(c)(ii):
[A]s a result of the relationship between the plaintiff and the defendant in or about 2011 and the fact that they were living together, the plaintiff would benefit indirectly by the defendant having more money at his disposal as a result of the increased revenue earned by the Company [Solid Rock Services Pty Ltd, wholly owned by the defendant] on tenders awarded to it by the shire.
Justification
96 As regards the defendant's reliance upon his earlier particulars under par 6.2 and par 6.3.2, which are sought to be imported and incorporated by way of a response to the three contended imputations arising out of the second email complained of, my view is that the already identified conceptual deficiencies in those particulars under par 6.2 concerning the failed tender to install the Marble Bar audio system, remain a problem in this new setting. Alone, they also do not assist the defendant in raising an arguable response to the second imputation of 'corrupt conduct'.
97 But it is necessary to focus in the context of the second email upon the particulars the defendant incorporates and relies upon from par 6.3.2. It will be remembered these same particulars have been used earlier, in support of the plaintiff's par 6.3 (flawed) plea of contextual truth, concerning the first email, invoking s 26 of the Defamation Act. Deployed to the end of contextual truth as regards the first email, they failed, for reasons explained above.
98 Now, however, those particulars must be re-evaluated, in the fresh context of arguably establishing pleas of substantial truth under par 11.2, in relation to each of the plaintiff's three imputations concerning that second email.
99 Viewed now from that altered perspective, my assessment is that they also fail, even when evaluated at the relatively undemanding threshold of potential justification arguability at a trial. Some naked conceptual deficiencies manifest. First, as regards subpar (e) and its assertion that the plaintiff had 'hatched a plan', I put aside problems over the choice of the emotive word 'hatched'. More substantively than that, there is simply no adequate underlying factual basis given to support the 'plan' assertion as against the plaintiff - and essentially directed towards showing an uncommunicated state of the plaintiff's mind at the time (February 2011). There is no suggestion of this 'plan' ever being admitted to by the plaintiff. Nor is such a plan said to have been communicated by the plaintiff to any person, or overheard by any person.
100 In the end, there is presented no independent objective facts at all that might support an otherwise bare assertion as to her asserted state of mind concerning such a plan - and towards what is a very serious justification plea, raising essentially the existence of a conspiracy to defraud the Shire. The assertion by way of justification of such seriousness must carry some reasonable underlying factual particularity. This plea does not.
101 Those same conceptual deficiencies carry over to infect subpar (f) and its problematic phrase 'initiated a plan'. Again, this bare assertion as to a planning state of mind of the plaintiff is not evidence of a material fact to support such a serious plea. Again, this cannot be accepted.
102 Further conceptual deficiencies emerge out of subpars (q) and (r), in relation to the asserted knowledge in the plaintiff, as to the state of mind and motivation of the defendant - at the time he is said to have purchased for her a bicycle (as alleged), as well as by subpar (r) a laptop, computer software and cash.
103 But the problem again is a total absence of any evidentiary basis detectable to support the pleaded contention that the plaintiff knew of the defendant's asserted tainted motives behind his purchasing conduct in those respects. Again, this cannot be allowed.
104 Finally, there is another conceptual gap, by way of the lack of any evidentiary support for the assertion about the plaintiff directly or indirectly benefiting from the award of the lighting system tender to the defendant's company in respect of the Newman tennis and netball courts, under (o). That same conceptual deficiency is manifested under par 11.2(c)(ii), as regards the asserted indirect benefit to the plaintiff by reason of the defendant 'having more money at his disposal as a result of the increased revenue earned by his Company on tenders awarded to it by the Shire'. This 'trickle-down' economic prosperity by proximity theory might have carried an appeal to devotees of 'Reagonomics' in the 1980s. But as regards justifying these serious allegations put against the plaintiff - in terms of her alleged dishonest manipulation of the Shire tender process (the plaintiff's third imputation) this plea is, in my view, conceptually lacking. The 'I win! therefore 'you win' economic assumption of this plea is wholly inadequate.
105 Accordingly, the par 6.3.2 particulars do not provide a basis to sustain the defendant's contentions of arguable justification - as regards the plaintiff's three imputations from the second email.
106 Leave to amend on that basis should also be refused.
107 No plea of contextual truth is put as regards the second email.
Local Government Act
108 For reasons indicated earlier, the second email communication of the defendant, on its face, equally will not sustain any arguable basis for a defence under s 9.56 of the Local Government Act. This email communication by its face also manifests as being an entirely private communication of the defendant. I refer particularly to the sentence in the sixth paragraph of the email:
My business was discriminated against by this action, to the third tenderer's advantage.
Qualified privilege
109 The position I reached concerning the imported plea of qualified privilege under s 30 of the Defamation Act and the attack upon what the defendant has said concerning his attempted satisfaction of the criterion of reasonableness for s 30, carry over to excuse the incorporated plea to the second email as seen under par 11.4.
110 I move to address the third email.
Third email
111 Another email was sent by the defendant to Mr Cooper, on 13 February 2013, at 1:21 am, under a subject heading 'Bias In Funding'.
112 The full text of the email complained of is set out in par 13 of the statement of claim. It commences:
Hi Allen,
I wish to point out a further example of what I believe is personal bias and a potential conflict of interest involving SW's management of Shire moneys.
113 This communication goes on to relate a fresh grievance about $5,000 advanced by the Shire to the Newman Jetboat Club. The email proceeds:
My objection is that the funding was effectively given to the President of the Jet Boat Club, and that the co-driver of the president's boat, is Darren Horton - SW's de facto partner.
114 The email concludes:
The conflict of interest inherent with funding the Jet Boat Club with $5,000 of Shire of East Pilbara money is particularly concerning as promoting the Jet Boat Club is in effect promoting SW's partner and social group using Shire money.
There is not a problem as long as SW's potential conflict of interest was put before council in an open, honest & transparent manner. I think these three are all serious issues and so I am bringing them to your attention, as CEO of the Shire of East Pilbara.
Local Government Act
115 Before I move to an evaluation of the defendant's proposed defences of justification and substantial truth, I observe as indicated earlier, that at least here I can detect, at the level of arguability, some basis for an invocation of the statutory defence under s 9.56 of the Local Government Act. The content of this email communication, by my present assessment is not, unlike the two earlier emails, redolent with private commercial interest grievances of the defendant - as disgruntled tenderer in respect of his corporation not winning the Marble Bar audio system tender.
116 I refer in particular to the following words of this email:
• par 12: 'I would not be discharging my role with loyalty to the council'; and
• par 17: 'I remain very concerned both as a councillor and as a ratepayer and as a supplier of goods and services to the Shire of East Pilbara' (my emphasis)
117 As the second quotation above makes clear, the defendant considered that the matter touched and concerned his interests on multiple fronts, one of which was as a protected person. It is necessary to read that compendious reference to councillor, ratepayer and businessperson, in light of the earlier words, which indicate that the defendant was raising the matter with the CEO as a councillor.
118 That takes me to pt 2 div 2 of the Local Government Act, under a heading 'Local governments and councils of local governments'. Here, the following provisions present as relevant:
2.6 Local governments to be run by elected councils
(1) Each local government is to have an elected council as its governing body.
…
(3) The offices on the council of the local government of a shire are those of the president, the deputy president and the councillors.
…
2.7 Role of council
(1) The council -
(a) governs the local government's affairs; and
(b) is responsible for the performance of the local government's functions.
(2) Without limiting subsection (1), the council is to -
(a) oversee the allocation of the local government's finances and resources.
A councillor -
(a) represents the interests of electors, ratepayers and residents of the district; and
…
(c) participates in the local government's decision-making processes at council and committee meetings.
120 Regarding s 2.10(c), the defendant was obviously not publishing his email during a council meeting. However, the third email raised as an issue:
This conflict of interest was not declared to council before council was asked to decide on giving the funds to the jet boat club.
Further we were not told how the money was to be spent.
121 This appears to be an allusion to a fact seen set out in par 16.2(a)(vi), namely that 'the Shire Council voted on the funding'.
122 Here, I note s 50(1) of the Interpretation Act 1984 (WA), providing that a power to do any act or thing includes anything 'reasonably necessary to enable him to do … the act or thing'.
123 As a matter of common sense, participating in decision-making at meetings may well involve a level of correspondence, both before or after regarding the matters discussed and voted on.
124 Assessed at the level of arguability for what is a de facto strike-out application, I consider that the express linkage to a non-disclosure concern regarding a vote taken at a council meeting is capable of generating a connection with the core of s 2.10(c), sufficient to bring the sending of this email within the performance or purported performance of a function of the defendant as a councillor under the Local Government Act.
125 This third email communication at least takes on a character of arguably expressing some public interest concerns about the conduct of a Shire employee.
126 Whether this communication is ultimately to be evaluated as being made by the defendant in 'good faith' or not, must be a matter for the trial.
Third email imputations
127 At this point, it is then convenient to turn to two false innuendos which the plaintiff contends arise out of this third email, namely:
16. The Third Defamatory Email was defamatory in its natural and ordinary meaning and meant and was understood to mean that the Plaintiff:
16.1 lacks personal integrity and professionalism in her role at the Shire of East Pilbara; and
16.2 misused council funds to benefit people with whom she was in a personal relationship.
128 A contextual imputation defence attempted to be raised against these innuendos by the defendant under par 16.3.1 of the MOPSD, reads:
that the plaintiff, whilst engaged as Manager Community Wellbeing for the Shire, dishonestly manipulated Shire processes to benefit people with whom she was in a personal relationship.
129 Argument proceeded once again on the accepted basis that the contextual imputation sought to be raised, was of 'equal force' to the plaintiff's innuendos. On that basis, for reasons I have now given in the context of the failure of the contextual imputation that was attempted to be raised in respect of the first email, this plea must also fail.
130 That attempted plea of contextual truth also does not meet the standard of being separate and distinct from the innuendos raised by the plaintiff (at least sufficiently distinct).
131 It also carries, as mentioned, a further conceptual vice of not presenting as more serious than the plaintiff's innuendos. To that extent, the criterion under s 26(b) Defamation Act as regards the plaintiff's imputations not doing 'further harm' to the reputation of the plaintiff (by reason of the reputational harm arising out of the substantial truth of the contextual imputation), cannot, even arguably, be satisfied here.
132 Consequently, the contextual truth plea under par 16.3 is doubly misconceived. It cannot be allowed.
Justification
133 That leaves the defendant's pleas of substantial truth, seen under MOPSD par 16.2(a) and par 16.2(b).
134 First, it is necessary to set out the content of the particulars given to par 16.2(a):
(a) The defendant provides the following particulars in relation to the imputation pleaded at paragraph 16.1 of the statement of claim:
(i) the defendant repeats the particulars of 6.2 and 6.3.2 above;
(ii) the plaintiff and Mr Horton conducted an intimate personal relationship during or about 2011 and 2012;
(iii) in or about 2012, Mr Horton, was one of the few members of the Newman Jet Boat Club: he drove a racing boat there, and stood to benefit indirectly from any funding which the Shire provided to that club;
(iv) in or about 2012, the Shire provided funding in the sum of $5,000.00 to the Newman Jet Boat Club;
(v) the Shire provided the funding to the Newman Jet Boat Club on the assessment by the plaintiff of the club's application for funding and her recommendation that the funding be provided;
(vi) the plaintiff did not disclose to the Chief Executive Officer of the Shire or its council, on undertaking the assessment and making her recommendation that the Shire should provide funding to the Newman Jet Boat Club or before the Shire Council voted on the funding or before the funding was provided to the Newman Jet Boat Club by the Shire, or at all, the matters set out in (ii) and (iii) above; and
(vii) The Shire's code of conduct, of which the plaintiff was aware, required her to disclose to the Shire her relationship with Mr Horton before undertaking her assessment and making her recommendation and before the Shire discussed the application and the plaintiff's recommendation, for funding to be provided by the Shire to the Newman Jet Boat Club, or, at least, before the funding was provided by the Shire to the Newman Jet Boat Club.
(b) The defendant repeats the particulars of 6.3.2 and particulars (a)(ii) to (vii) above in relation to the imputation pleaded at 16.2 of the statement of claim.
135 As regards the innuendos 16.1 concerning the absence of personal integrity and professionalism in the plaintiff's role at the Shire, I have already drawn attention to conceptual gaps in the imported particulars from par 6.2 and par 6.2.3, concerning the (unsuccessful) Marble Bar audio system tender and the (earlier, and successful) Newman tennis/netball court lights tenders. Those underlying deficiencies carry over to infect this context as well.
136 But a fresh question is whether the further material given here, as regards $5,000 in Shire funding to the Newman Jetboat Club - where the plaintiff's allegedly now favoured new lover (Mr Horton) drove a racing boat - impacts upon the evaluation.
137 Essentially, this grievance distils down to a criticism of a relationship non-disclosure by the plaintiff - concerning her new relationship, alleged with Mr Darren Horton, before the Shire evaluated his club's jet boat funding proposal.
138 It is worth observing that it was, in fact, the Shire, not the plaintiff, that would have made the end decision to allocate those funds. Presumably that funding decision was reached on its perceived merits by the Shire.
139 Whilst there may have arisen on these alleged facts, some arguable conduct breach by the plaintiff (a possible breach of the Shire's code of conduct, by reason of the non-disclosure of the plaintiff's personal relationship with Mr Horton), in my view, showing such a code of conduct transgression would not provide a sensibly arguable basis to support a justification argument - that the plaintiff lacks personal integrity and professionalism in her role at the Shire. A plea of deliberate concealment about that relationship, as opposed to a mere non-disclosure of the relationship, might be sufficient, as regards arguably advancing the absence of personal integrity, responding to imputation 16.1. But that is not what is pleaded. The bare non-disclosure of a personal relationship, if that was the case, may be an innocent oversight. It would not rise to a level of showing, without more, a lack of integrity or professionalism in the plaintiff, even arguably.
140 That non-disclosure contention as regards the alleged Horton relationship then significantly founders even more conceptually, in my view, as regards it possibly supporting an attempted plea of substantial truth concerning the imputation that the plaintiff 'misused council funds'.
141 The jetboat funding particulars and the personal relationship non-disclosure allegation particulars, spectacularly fail to show any arguable 'misuse of funds' by the plaintiff. Any funds were initially the funds of the Shire. Upon allocation they became funds of the Jetboat Club. It is apparent from the defendant's particulars that a decision to allocate funds to the Newman Jetboat Club, was that of the Shire, not a decision of the plaintiff.
142 A code of conduct infringement by the plaintiff by non-disclosure of a personal relationship with a member of the jetboat club would, nevertheless, by my assessment, fall a very long way short of supporting a justification argument that there had been a misuse of council funds by the plaintiff. Hence, the jetboat funding materials take the earlier (deficient) particulars no further.
143 The plaintiff's objections raised against the particulars of justification proposed to be put towards the third email, must succeed as regards that publication. This plea will also not be permitted.
Conclusion
144 In all the circumstances related above, the plaintiff's grievances against the defendant's proposed MOPSD have succeeded, in major respects. To the limited extent they have not, as regards the reasonableness statutory qualified privilege plea and in respect of the Local Government Act defence concerning the third email, this has constituted only a relatively insignificant aspect of the overall application, from a hearing time and resourcing perspective.
145 In the circumstances then, the plaintiff predominantly succeeds. The leave that is sought by the defendant to amend, in terms of the proposed MOPSD, will be refused.
146 The plaintiff should receive its taxed costs of this application in light of its success. Bearing in mind need for extensive oral argument, that traversed a full morning and spanned well into the afternoon of a special appointment originally scheduled for two hours, the scale limit under item 10(a) of the Legal Practitioners (Supreme Court) (Contentious Business) Determination 2012 (WA) should be removed.
147 The parties should now confer as to orders giving effect to these reasons. In the absence of any agreement upon a minute within 21 days of the publication of these reasons, the plaintiff's solicitors should submit their minute of proposed orders to my Associate.
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