Westerman v Edwards

[2020] WASC 60

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   WESTERMAN -v- EDWARDS [2020] WASC 60

CORAM:   LE MIERE J

HEARD:   20 JANUARY 2020

DELIVERED          :   4 MARCH 2020

FILE NO/S:   CIV 2183 of 2019

BETWEEN:   SHARON WESTERMAN

Plaintiff

AND

JOHN EDWARDS

First Defendant

KRED LEGAL PTY LTD

Second Defendant

WAYNE BERGMAN

Third Defendant

TONY TAYLOR

Fourth Defendant

WILLIE JUMBO

Fifth Defendant

DORIS EATON

Sixth Defendant

ALICE MITCHELL

Seventh Defendant

KEVIN ALLEN

Eighth Defendant

ELSIE JEAN WALKER

Ninth Defendant

Catchwords:

Application for action against one defendant be dismissed - Not incapable of proof - Action continuing against other defendants - Evidence may give rise to inferences inconsistent with dismissal - No substantial narrowing of issues or saving of resources

Strike out application - Generality - Capable of greater refinement - Fails to represent final distillation - Weasel words - Improper - Likely to prejudice, embarrass or delay a fair trial

Legislation:

Charitable Trusts Act 1962 (WA)

Result:

Paragraphs 12.1, 12.2, 12.3, 12.5, 12.7, 12.8 and 12.12 of the amended statement of claim be struck out
The application otherwise be dismissed

Category:    B

Representation:

Counsel:

Plaintiff	:	Mr S K Shepherd
First Defendant	:	Mr S R Ringrose
Second Defendant	:	Mr S R Ringrose
Third Defendant	:	Mr M G Lundberg
Fourth Defendant	:	Mr M G Lundberg
Fifth Defendant	:	Mr M G Lundberg
Sixth Defendant	:	Mr M G Lundberg
Seventh Defendant	:	No appearance
Eighth Defendant	:	Mr M G Lundberg
Ninth Defendant	:	Mr M G Lundberg

Solicitors:

Plaintiff	:	Chris Stokes & Associates
First Defendant	:	Jackson McDonald
Second Defendant	:	Jackson McDonald
Third Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Fourth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Fifth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Sixth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Seventh Defendant	:	No appearance
Eighth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp
Ninth Defendant	:	Quinn Emanuel Urquhart & Sullivan Llp

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

Buckeridge v Walter [2010] WASCA 134

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135

Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716

Gascoine v McGinty (1995) 14 WAR 542

Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103

Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293

Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663

Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260

Setka v Abbott (2014) 44 VR 342

Taylor v Jecks (1993) 10 WAR 309

Trkulja v Google LLC (2018) 263 CLR 149

Webb v Bloch (1928) 41 CLR 331

LE MIERE J:

Summary

1. The plaintiff is a Njamal woman.  The fourth to ninth defendants are Njamal people, each of whom is a named applicant for Njamal native title claims.

2. The second defendant, Arma Legal, is an incorporated legal practice.  The first defendant is the practice manager of Arma Legal.  The third defendant is a director of Arma Legal.

3. In May 2017 the Attorney General for Western Australia appointed an examiner pursuant to s 20 of the Charitable Trusts Act 1962 (WA) to examine and enquire into the Njamal People's Trust (the Inquiry).

4. On 6 July 2018 the defendants, or some of them, published to members of the Parliament of Western Australia a letter headed 'Inquiry into the Njamal People's Trust'.  The letter was on an Arma Legal letterhead and signed by the first defendant.  The letter stated that it was written on the instructions of the fourth to ninth defendants.

5. The plaintiff alleges that the letter defames her and was published by each of the defendants.

6. The third, fourth, fifth, sixth, eighth and ninth defendants, who I will sometimes refer to as the defendants, have applied for an order that the plaintiff's action against the third defendant be dismissed on the ground that it discloses no reasonable cause of action against him.  The third, fourth, fifth, sixth, eighth and ninth defendants also seek orders that [12.1], [12.4] ‑ [12.8], [12.12] and [12.13] of the amended statement of claim dated 11 September 2019 (ASOC), which plead imputations alleged to arise from the letter, be struck out on the grounds that they disclose no reasonable cause of action, are scandalous, frivolous or vexatious or they may prejudice, embarrass or delay the fair trial of the action.

7. For the reasons which follow [12.1] ‑ [12.3], [12.5], [12.7], [12.8] and [12.12] of the ASOC will be struck out.  The third, fourth, fifth, sixth, eighth and ninth defendants' application will otherwise be dismissed.

The letter

1. The letter is addressed 'Members of Parliament of WA'.  It bears the salutation 'To whom it may concern' and the subject reference 'Inquiry into the Njamal People's Trust'.  The letter states that Arma Legal act for the named applicants for the Njamal native title claims, who are described thereafter as the Applicants and that the Applicants:

   have instructed us to write to you to express their anger and concern at the Inquiry and to seek your assistance to put their anger and concerns before the Parliament and before the government and the Attorney‑General.  The Applicants have instructed us to their concerns as set out in this letter.

2. The letter then proceeds to describe circumstances surrounding the formation of the Inquiry, commencing with the statement that there was no consultation with the Applicants before the Inquiry was established.

3. The letter then refers to the plaintiff, Ms Westerman, in the following terms:

   The Applicants understand the Inquiry may have been influenced by a complaint made by one person, Sharon Westerman.  (1) We are instructed that Ms Westerman is a Nyamal person who has fallen out with the Trust and the Nyamal People.  (2) Our instructions are that Ms Westerman has fallen out with the Trust because of private business dealings between her and a company owned by the Trust.  (3) She has been charged with stealing as a servant from this company.  (4) The Applicants instruct us that, ever since Ms Westerman fell out with the Trust she has waged a campaign to take control of the Trust involving community meetings and agitation.  (5) She has not been successful in all her attempts to take control to date but in the process has caused great anger, dissent and division in the Nyamal community.  (6) The Applicants consider Ms Westerman's personal bias as to the affairs of the Trust and her ulterior motives make her an unreliable and inappropriate person to be the primary basis on which an inquiry was established or as a source of information, should that be her role in the inquiry.

   The sentence numbers correspond to the words referred to in the subparagraphs of ASOC [9]. ASOC [12] pleads that the words referred to at [9] give rise to the imputations pleaded in [12].

4. The letter goes on to describe the adverse impact of the Inquiry on the Trust and the Njamal People:

   The Inquiry has cost the Trust money in terms of wasted staff time and external costs in responding to the Inquiry.  (7) It has now been underway for close to 14 months.  The Applicant has been advised it has cost the Trust over $1M in terms of wasted staff time and external costs.  As Nyamal people and beneficiaries of the Trust, they are very concerned about the Trust having to use its resources to respond to the Inquiry rather than using them for the benefit and development of the Nyamal people as beneficiaries.

   (8) The Inquiry has damaged the reputation of the Trust and Nyamal people.  (9) It has caused the third parties to question the financial viability and integrity of the Trust and damaged business relationships, business opportunities and reputations. (10) The Inquiry has cast aspersions on the character of Nyamal people for over 13 months in circumstances where the Applicants do not understand why it was established other than apparently having been commenced following the complaint of a person who seems to want to take over the Trust and divide the Nyamal people.

   The sentence numbers correspond to the words of the publication pleaded in ASOC [9].

5. The letter then contains the following two paragraphs which refer to the plaintiff:

   (11) We are instructed that the Inquiry has given Ms Westerman fuel to spread false innuendos and to attack Nyamal people, whilst there have been no findings of any kind of any wrongdoing or irregularities to date.  The Applicants are of the view that if the Inquiry has uncovered any irregularities then they should have been brought to the attention of the trustee by now. (12) It has caused arguments within the Nyamal community and led to the breakdown of relationships between Nyamal people. (13) It has affected the businesses of Nyamal people as their reputations have been called into question without any factual basis other than that there is an Inquiry which people interpret as inferring some wrongdoing.

   (14) We are instructed that the Applicants understand that the Inquiry is responding to accusations made by Ms Westerman in a way that suggests she has some sort of influence on the Inquiry. (15) For example, we are instructed that Mr Kevin Allen, one of the members of the Applicants, was advised by a friendly party to Ms Westerman that a payment to him would be investigated.  Mr Allen subsequently received a request for information on this issue from the Inquiry. (16) In a report in The Age Newspaper, the audited accounts of the Trust were then referred to.  The Applicant seeks an explanation of how The Age obtained this confidential information. (17) As set out in this letter, the Applicants are firmly of the view that Ms Westerman has a personal grudge and ulterior motive that means she should not be allowed to have input into the Inquiry.  The Applicants call for this to be investigated.

   The sentence numbers correspond to the words pleaded in ASOC [9].

6. The letter concludes by saying that the Applicants want the Inquiry to be brought to an end as soon as possible and the circumstances surrounding its establishment be investigated by the Parliament.

Extension of time

1. The defendants seek leave to bring the application out of time.  The Rules of the Supreme Court 1971 (WA) (Rules) require the application to dismiss the action against the third defendant to have been brought on or before 15 August 2019, being 21 days after an appearance was entered for the third defendant. The Rules require the application to strike out parts of the ASOC to have been brought on or before 8 October 2019, being 21 days after the ASOC was served. The applications were brought by chamber summons filed 23 October 2019. The plaintiff does not oppose leave being granted. The delay has been explained. No specific prejudice has been demonstrated. Leave will be granted.

Claim against the third defendant

1. Any person is liable for defamation if the person took part in it, or authorised the publication of the defamatory material.[1]  All degrees of participation in the publication is publication.  In Webb v Bloch Isaacs J said:

   The term published is the proper and technical term to be used in the case of libel, without reference to the precise degree in which the defendant has been instrumental to such publication; since, if he has intentionally linked his assistance to its exercise for the purpose of being published, his instrumentality is evidence to show a publication by him.[2]

   [1] Webb v Bloch (1928) 41 CLR 331, 362 ‑ 366 (Isaacs J).

   [2] Webb v Bloch (363 ‑ 364), (Isaacs J) cited with approval in a unanimous judgment of the High Court in Trkulja v Google LLC (2018) 263 CLR 149 [40].

2. The plaintiff pleads that the publication, that is the letter, was written with the knowledge and approval of the third defendant.  Those facts, if established, make the third defendant liable for the publication.

3. The defendants requested further and better particulars of the allegation that the letter was written with the knowledge and approval of the third defendant.  The plaintiff gave the following particulars:

   a)On 6 July 2018, the Third Defendant was one of four directors of the Second Defendant.

   b)The Second Defendant acts for the Njamal Native Title Applicants in claim WAD6028/1998 and claim WAD6003/2000.

   c)As a director, the Third Defendant is subject to a statutory duty to act with care and diligence towards the business of the Second Defendant.

   d)The Third Defendant has, since about mid‑2007 attended Njamal native title authorisation meetings and community meetings of the Njamal Native Title Applicant Group as 'advisor' to the Applicants.

   e)Further particulars may be provided prior to trial.

4. The defendants submit that the particulars do not support the plea that the letter was written with the knowledge and approval of the defendant and therefore the claim against the third defendant is unsustainable and should be dismissed.

5. I decline to strike out the plaintiff's claim against the third defendant.  First, it is only in clear and obvious cases that a court should strike out a claim as incapable of proof at the interlocutory stage and before discovery.  The court cannot be confident that all the facts material to the third defendant's knowledge of, and participation in, the writing of the letter have been gathered in.  Secondly, the action will continue against the other defendants.  The evidence at trial may prove, or establish facts giving rise to an inference, that the letter was written with the knowledge and approval of the third defendant and lead to findings inconsistent with the dismissal of the defendant's claim against the third defendant.  Thirdly, the third defendant is a director of the second defendant and is represented by the same solicitors as the third, fourth, fifth, sixth, eighth and ninth defendants.  Dismissing the claim against the third defendant will not result in any substantial narrowing of issues or saving of resources of the parties or the court.

ASOC 12.1

1. The imputation pleaded at [12.1] of the ASOC (imputation 12.1) is that the plaintiff:

   was a person who behaved against the interests and contrary to the wishes of the Njamal People.

2. The defendants say that imputation 12.1 is pleaded at an unacceptably high level of generality, is imprecise, and is legally embarrassing. 

3. An imputation must express the precise act or condition asserted of, or attributed to the plaintiff,[3] and represent the final distillation of the alleged defamatory meaning.[4]

   [3] Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Taylor v Jecks (1993) 10 WAR 309, 319.

   [4] Buckeridge v Walter [2010] WASCA 134 [28].

4. The principles to be applied when determining whether an imputation is sufficiently precise and represents the final distillation of the alleged defamatory meaning were described by Gleeson CJ in Drummoyne Municipal Council v Australian Broadcasting Corporation.[5]  In that case the primary judge had struck out three imputations in a statement of claim, which alleged 'corrupt' conduct or acts of the plaintiff council.  The New South Wales Court of Appeal (by majority) upheld that decision.  In doing so Gleeson CJ stated the principle as follows:

   The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, that is to say, the statement which he says was made about him, which follows from the scheme of the Defamation Act, the provisions of the Supreme Court Rules, and the ordinary rules of pleading, is one which, in its practical application, raises questions of degree.  Almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation. In any given case a judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion, and as to what constitutes the necessary specificity.  If a problem arises, the solution will usually be found in considerations of practical justice rather than philology. …

   Furthermore, whilst the principles relevant to the plaintiff's obligation remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter.  Defamation may come in the form of snide insinuation or robust denunciation, or something in between those two extremes.  The attribution to a person of an act or condition may be done with a high degree of particularity or it may take the form of the most generalised and non-specific abuse. It is a feature of certain forms of defamation that one can read or hear matter published concerning a person and be left with the powerful impression that the person is a scoundrel, but find it very difficult to discern exactly what it is that the person is said or suggested to have done wrong. The requirement upon a plaintiff cannot go beyond doing the best that can reasonably be done in the circumstances.  If a defendant has posted in a public place a sign that simply says 'X is disgusting', the degree of specificity with which it is appropriate to require X to formulate the defamatory imputation will need to be related to the nature and content of the defamatory matter.

   [5] Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.

5. The defendants say that imputation 12.1 is pleaded at an impermissibly high level of generality because the publication makes high level and very general allegations about the conduct of the plaintiff towards the Njamal people.  The defendants say that the precise act or condition asserted of or attributed to the plaintiff is unclear ‑ what does it mean to behave against, or contrary to, the interests and wishes of a group of people - leaving the defendants in a state of uncertainty as to the case to be met and the manner in which a plea of justification could be pleaded.

6. The defendants make the same complaint about imputations 12.5, 12.6, 12.7 and 12.14 which variously allege conduct of the plaintiff 'against the wishes and best interests of the Njamal people' or 'against the interests of the Njamal people' or 'contrary to the best interests of the Njamal people'.

7. The plaintiff submits that the imputations are properly pleaded and should not be struck out.  The letter is intended to damage the reputation of the plaintiff so as to reduce the extent to which the Inquiry may take into account evidence and submissions of the plaintiff.  The statements which denigrate the plaintiff are in contrast to the express words of the letter that the trustee of the Trust has worked 'in the best interests of the Ngamal people'.  The plaintiff says that the defamatory material in the publication is itself broad and lacking specificity and the plaintiff cannot be required to be more specific in her pleaded imputations.

8. Generally, an imputation will not be impermissibly vague where it uses words used and expressed very generally in the impugned publication.  However, an imputation will usually be impermissibly vague where it makes use of words not used in the defamatory publication which are capable of multiple meanings, or describing conduct of various kinds or degree, and the imputation does not assign a particular meaning to the word or words.[6]

   [6] Setka v Abbott (2014) 44 VR 342 [264], [292].

9. The letter uses the words 'the interests of the Njamal people', but it does so in reference to the work of the trustee of the Trust not in relation to the behaviour of the plaintiff.  Juxtaposition is a literary technique which places two ideas next to each other so that the reader will compare and contrast them.  The juxtaposition of statements critical of the plaintiff with the statement that the trustee has worked in the best interests of the Njamal people may be relevant to the meaning of the material complained of which refers to the plaintiff.  However, the defendants' objection is that the imputation is capable of further refinement.

1. Behaving against the interests of a group is a nebulous concept.  The scope and content of behaving against the interests of the group depends upon the circumstances to which it is applied, just as the scope and content of a director's duty to act in the best interests of a corporation depends on the circumstances.  The range of possible conduct to which behaving against the interests of the group may be making reference is such that it is not clear what is the act or condition asserted of, or attributed to, the plaintiff by the imputation.

2. The defendants say that the pleaded imputation is capable of further refinement.  Of course, it is often possible to refine a pleaded imputation into a form that is more precise than the form pleaded by a plaintiff.  That does not necessarily mean that there has been a breach of the pleading principles that require precision in an imputation and that it be the final distillation of the alleged defamatory meaning.[7]  The question of the need for refinement or further distillation is always to be considered by reference to what is reasonable in the circumstances of the case.

   [7] Hardie v Herald and Weekly Times Pty Ltd [2016] VSCA 103 [35].

3. The degree of specificity required of a plaintiff must be informed by the content of the matter complained of.  The letter makes a number of assertions about the behaviour of the plaintiff:  the plaintiff has fallen out with the Trust because of private business dealings between her and a company owned by the Trust; she has been charged with stealing as a servant from this company; she has waged a campaign to take control of the Trust involving community meetings and agitation and in the process has caused great anger, dissent and division in the Njamal community; she is biased as to the affairs of the Trust and an unreliable and inappropriate person to be a primary basis on which an inquiry was established or as a source of information; she has spread false innuendos and attacked Njamal people; she has made accusations in a way that suggests she has some sort of influence on the Inquiry; she has a grudge and ulterior motive and should not be allowed to have input into the Inquiry.  Further, it is arguable that sentences in the letter mean that the plaintiff provided audited accounts of the Trust, which are confidential information, to The Age newspaper.

4. Having regard to the material complained of, the imputation is capable of greater refinement.  The letter refers to aspects of the plaintiff's dealings or relations with the Trust and the Njamal people.  If the plaintiff wishes to maintain that the publication gives rise to the meaning that she has behaved against the interests of the Njamal people then she should expand the imputation to specify the way in which she has behaved against the interests of the Njamal people or the aspects of her behaviour which are against the interests of the Njamal people.  The imputation in its present form is likely to generate confusion both at the pleading stage and at the trial.  How should the defendants determine whether to plead truth to such an imputation?  What documents would be discoverable in aid of a truth defence?  Could the plaintiff be cross‑examined as to all aspects of her relationships and interactions with any or all of the Njamal people?

5. The imputation is also imprecise and fails to represent the final distillation of the alleged defamatory meaning insofar as it refers to the plaintiff being a person who behaved 'contrary to the wishes of the Njamal People'.  The letter says that the plaintiff has waged a campaign to take control of the Trust involving community meetings and agitation, that she has not been successful in her attempts to take control, but in the process has caused great anger, dissent and division in the Njamal community.  In that context, what is the meaning of 'against the wishes of the Njamal People'?  Does it mean against the wishes of all of the Njamal People, all of the Njamal People except the plaintiff, most of the Njamal People, a majority of the Njamal People or some of the Njamal People, and if so, which of them?

6. Imputation 12.1 is likely to prejudice, embarrass or delay the fair trial of the action.  Imputation 12.1 will be struck out.

ASOC 12.2

1. The imputation pleaded at ASOC 12.2 is:

   [The plaintiff] has had improper financial dealings with the Njamal People's Trust.

2. The defendants did not apply in their chamber summons to strike out this pleading.  However, it is in the interests of efficient case management that the imputation be struck out on the ground that it is likely to prejudice, embarrass or delay the fair trial of the action.  I raised the matter with counsel for the plaintiff on the hearing of this application.  The plaintiff was not prejudiced by the matter not having been raised earlier.

3. The word 'improper' is a classic weasel word.  Weasel words are words which on their own do not make a party's case clear.  The word 'improper' has different shades or degrees of meaning, it may have a more serious and less serious meaning.  The plaintiff must make clear in what way the plaintiff's financial dealings with the Trust were improper.  In Morris v Newcastle Newspapers Pty Ltd[8] Hunt J held that, in pleading imputations, the word 'improper' should not be used unless the context makes clear its intended meaning and the degree of impropriety involved.[9]

   [8] Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260.

   [9] Morris v Newcastle Newspapers Pty Ltd (271F ‑ 272A).

4. The degree of precision required in each case will depend upon the facts and circumstances of the case.  Nevertheless, it is helpful to refer to the decision of Steytler J in Gascoine v McGinty.[10]  In that case the plaintiff pleaded that the publication complained of gave rise to the imputation:

   that by virtue of making donations to the Liberal Party of Western Australia the plaintiff obtained an improper financial advantage in a commercial transaction entered into between the plaintiff and the Government of Western Australia, to the value of several million dollars.

   Steytler J said that while the use of the word 'improper' in pleading an imputation may be appropriate in other contexts it was not appropriate in that case.  His Honour said:

   The essence of the plea is that the plaintiff obtained an 'improper financial advantage' by virtue of making donations to the Western Australian Liberal Party.  It is the impropriety which, necessarily, gives rise to the defamatory 'sting'.  However, the defendant is not told in terms what is said to be the content of that impropriety.  Nor is that made apparent by the context of the plea in paragraph 4.

   [10] Gascoine v McGinty (1995) 14 WAR 542.

5. In this case, the plea does not make clear the intended meaning of 'improper'.  The imprecision of the imputation is compounded by its use of the words 'financial dealings'.  The only financial dealings between the plaintiff and the Trust referred to in the letter is in the sentence which refers to 'private business dealings' between the plaintiff and a company owned by the Trust.  That sentence is immediately followed by the statement that the plaintiff has been charged with stealing as a servant from this company.  The impropriety might be that the plaintiff stole from the company owned by the trust.  However, counsel for the plaintiff said that that is not the impropriety captured by imputation 12.2.  Furthermore, if it were, it would be merely repetitive of imputation 12.3 and should be struck out for that reason.  The pleading does not make clear the nature or degree of impropriety asserted.

6. ASOC 12.2 should be struck out.

ASOC 12.3

1. The imputation pleaded at ASOC 12.3 is that the plaintiff:  'was dishonest'.

2. This imputation was not challenged by the plaintiff.  However, I have considered whether or not it should be struck out, as a matter of case management, as with imputation 12.2.  The imputation should be struck out on the ground that it is likely to prejudice, embarrass or delay the fair trial of the action.

3. Dishonesty is another word which has a range of meanings.  Its meaning depends on its context.  It may, for example, refer to or dishonesty in the sense of stealing, dishonesty in the sense of untruthfulness or, dishonesty in the sense of lack of probity or integrity in some other sense.

4. The imputation does not make clear in what sense dishonesty is attributed to the plaintiff.  Reference to the context of the publication complained of does not make clear in what sense dishonesty is attributed to the plaintiff.  The letter says that the plaintiff has been charged with stealing as a servant from the company.  The letter also says that the plaintiff has spread false innuendoes and attacked Njamal people.  Thus, it is not clear whether the imputation is that the plaintiff was dishonest, in the sense of stealing, or dishonest in the sense of being untruthful, or in some other sense.  Imputation 12.3 should be struck out.

ASOC 12.4

1. The imputation pleaded in ASOC 12.4 is that the plaintiff:  'had stolen money from the Njamal People's Trust'.

2. The defendants challenged this imputation on the ground that it is incapable of being conveyed by the words complained of.

3. A publication which does no more than state that a person had been charged is incapable of bearing the imputation that she is guilty of the offence with which she is charged.[11]  However, the position may be different if the statement that a person has been charged is accompanied by other material which points to a likelihood of guilt.[12]

   [11] Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293, 300 (Mason J).

   [12] Favell v Queensland Newspapers Pty Ltd (2005) 79 ALJR 1716 [12] (Gleeson CJ, McHugh, Gummow & Heydon JJ).

4. The statement that the plaintiff has been charged with stealing as a servant from the company is immediately preceded by the statement that she has fallen out with the Trust because of private business dealings between her and the company.  The letter then goes on to describe other conduct of the plaintiff in critical terms and to refer to her bias as to the affairs of the Trust, her ulterior motives and say that she is an unreliable and inappropriate person to be the primary basis on which an inquiry was established or as a source of information.  The letter later states that the plaintiff has spread false innuendos and attacked Njamal people.

5. The court should only strike out an imputation on the ground that it is incapable of being conveyed by the publication complained of in a clear case.  The question of whether words are capable of conveying a pleaded defamatory imputation is a question of law which permits of only one correct answer.  However, it is a question about which reasonable minds may sometimes differ, and, consequently, it is only ever with great caution that a defamation pleading should be disallowed as incapable of bearing a defamatory imputation.[13]  In Trkulja v Google LLC the High Court expressed the test this way:

   The test for whether a published matter is capable of being defamatory is what ordinary reasonable people would understand by the matter complained of.  In making that assessment, it is necessary to bear in mind that ordinary men and women have different temperaments and outlooks, degrees of education and life experience. As Lord Reid observed in Lewis v Daily Telegraph Ltd, '[s]ome are unusually suspicious and some are unusually naïve'.  So also are some unusually well educated and sophisticated while others are deprived of the benefits of those advantages. The exercise is, therefore, one of attempting to envisage a mean or midpoint of temperaments and abilities and on that basis to decide the most damaging meaning that ordinary reasonable people at the midpoint could put on the impugned words or images considering the publication as a whole.

   As the Court of Appeal of England and Wales observed in Berezovsky v Forbes Inc, that exercise is one in generosity not parsimony. The question is not what the allegedly defamatory words or images in fact say or depict but what a jury could reasonably think they convey to the ordinary reasonable person; and it is often a matter of first impression. The ordinary reasonable person is not a lawyer who examines the impugned publication over-zealously but someone who views the publication casually and is prone to a degree of loose thinking.  He or she may be taken to 'read between the lines in the light of his general knowledge and experience of worldly affairs', but such a person also draws implications much more freely than a lawyer, especially derogatory implications, and takes into account emphasis given by conspicuous headlines or captions.  Hence, as Kirby J observed in Chakravarti, '[w]here words have been used which are imprecise, ambiguous or loose, a very wide latitude will be ascribed to the ordinary person to draw imputations adverse to the subject' [31] - [32].

   [13] Trkulja v Google LLC (2018) 263 CLR 149 [30] (Kiefel CJ, Bell, Keane, Nettle & Gordon JJ).

6. The High Court went on to observe that the test of capacity of a published matter to defame is whether the publication is capable of conveying the defamatory imputation alleged, not whether the defamatory imputation pleaded is arguably conveyed.  Their Honours said that to express the test in the latter way runs the risk of judging the issue according to what the court may think the words mean rather than what a jury could reasonably think they convey.[14]

   [14] Trkulja v Google LLC [52].

7. I am not satisfied that the words complained of are not capable of giving rise to the pleaded imputation.  Of course, whether or not they do give rise to that meaning is not a question to be answered on this application.

ASOC 12.5

1. At ASOC 12.5 the plaintiff pleads the imputation that the plaintiff:  'has acted to take over the Njamal People's Trust against the wishes and best interests of the Njamal People.

2. The defendants submit that the words 'against the wishes and best interests of the Njamal People' are vague, imprecise and at such a high level of generality that the imputation is embarrassing.

3. The imputation, like imputation 12.1, asserts that the plaintiff has acted against the best interests of the Njamal people.  However, unlike imputation 12.1, imputation 12.5 specifies the aspect of the plaintiff's behaviour which is said to be against the interests of the Njamal people.

4. The imputation is insufficiently precise insofar as it asserts that the plaintiff has acted to take over the Trust 'against the wishes … of the Njamal people'.  The letter says that the plaintiff has 'raged a campaign to take control of the Trust' but it does not expressly say that the plaintiff has done so against the wishes of the Njamal People or that the plaintiff has done so against the interests of the Njamal People.  The imputation is a construct.  The letter says that the plaintiff has caused great anger, dissent and division in the Njamal community.  In that context what does 'the plaintiff has acted to take over the Trust against the wishes of the Njamal People' mean?  Does it mean that all the Njamal people do not wish the plaintiff to take over the Trust?  That seems unlikely because the letter says that the plaintiff has caused division in the community.  Does it mean that it is against the wishes of some of the Njamal people and if so which of them or how many of them?

5. The meaning of the imputation is not sufficiently clear or precise.  The imputation fails to state the final distillation of the defamatory essence of the publication.  The imputation should be struck out.

ASOC 12.6

1. At ASOC 12.6 the plaintiff pleads the imputation that the plaintiff:  'has sought to create dissent and division amongst Njamal People against the interests of the Njamal People'.

2. The defendants say that the imputation is insufficiently precise and not the final distillation of the defamatory meaning.

3. The imputation uses words contained in the publication.  The letter says that in the process of attempting to take control of the Trust, the plaintiff has caused dissent and division in the Njamal community.  The penultimate paragraph of the letter says that the trustee of the Trust has worked in the best interests of the Njamal people.  The imputation is pleaded at a level of generality appropriate to the terms of the publication complained of.

ASOC 12.7

1. At ASOC 12.7 the plaintiff pleads the imputation that the plaintiff:  'has ulterior motives against the interests of the Njamal People in her dealings with them'.

2. The imputation fails to state clearly the defamatory meaning and fails to state the final distillation of the alleged defamatory meaning.

3. The imputation fails to identify the plaintiff's dealings with the Njamal People for which she had ulterior motives.  The letter refers twice to the plaintiff's ulterior motives.  First, it says that her ulterior motives make her an unreliable and inappropriate person to be the primary basis on which an inquiry was established or as a source of information.  Secondly, it says that she has a personal grudge and ulterior motive that means she should not be allowed to have input into the Inquiry.  The ulterior motives appear to be motives for causing the Inquiry to be established or providing information to the Inquiry.  Are those the plaintiff's dealings with the Njamal people?  Or are the plaintiff's dealings her private business dealings with a company owned by the Trust, her campaign to take control of the Trust, the community meetings she has called in the course of that campaign or some other and if so what dealings?

4. What does it mean to say that her ulterior motives are 'against the interests of the Njamal People'?  Acting against the interests of a group means acting to the disadvantage of, or causing harm or injury to, the members as a whole.  An ulterior motive is the final or ultimate reason why a person did something.  Does the imputation mean that the plaintiff has done things with the motive or intention of causing harm or injury to the Njamal people?  Or does the imputation mean that the plaintiff has done things for some unspecified ulterior motive which have caused harm or injury to the Njamal people?  Or does it mean something else?

5. The imputation should be struck out.

ASOC 12.8

1. At 12.8 the plaintiff pleads the imputation that the plaintiff:  'is an unreliable person in her dealings with the Njamal people because of a conflict between her own interests and those of the Njamal people'.

2. The imputation does not identify the 'dealings'.  Its literal meaning extends to every interaction between the plaintiff, who is herself a Njamal woman, and every other Njamal person.  Reference to the letter does not identify the dealings.

3. The letter says that the Applicants consider the plaintiff an unreliable and inappropriate person to be the primary basis on which the Inquiry was established or as a source of information.  The Inquiry was established by the Attorney General.  The letter is referring to information provided to the State Solicitor's Office which is conducting the Inquiry.  The letter also refers to, although not in the context of the statement that the plaintiff is an unreliable and inappropriate person, a variety of what might be seen as dealings between the plaintiff and the Njamal people.  The imputation does not identify whether it is all those things, some of them and if so which, or none of them in relation to which the plaintiff is an unreliable person.

4. The imputation does not identify the conflict between the plaintiff's interests and those of the Njamal people.  The letter does not identify the conflict.  The letter does not use the word 'conflict'.  The letter refers to private business dealings between the plaintiff and a company owned by the Trust that the plaintiff has been charged with stealing from and that the plaintiff has waged a campaign to take control of the Trust involving community meetings and agitation.  Are those the plaintiff's dealings with the Njamal people in respect of which the plaintiff has a conflict between her own interest and those of the Njamal people?  If so, what is the conflict?

1. The imputation should be struck out.

ASOC 12.12

1. ASOC 12.12 pleads the imputation that the plaintiff:  'exerted improper and undue influence over the Inquiry'.

2. Undue influence is an equitable doctrine that involves one person taking advantage of a position of power over another person.  This inequality of power between the parties can vitiate one party's consent as they are unable to freely exercise their independent will.  Undue influence does not appear to have that meaning in the imputation.  It does not seem to be the plaintiff's case that the letter means that the plaintiff took advantage of her position of power over the State Solicitor's Office.

3. The ordinary meaning of undue influence is influence by which a person is induced to act otherwise than by their own free will.  Again, it does not seem to be the plaintiff's case that the letter means that the plaintiff induced the State Solicitor's Office to act otherwise than by their own free will.

4. If 'undue' means unwarranted or inappropriate because it is excessive or disproportionate, then in what way was the influence exerted by the plaintiff over the Inquiry excessive or disproportionate and if disproportionate, disproportionate to what?

5. Is the imputation that the plaintiff's influence over the Inquiry was 'improper' because it was undue or it was improper in some other way as well and if so in what other way?

6. As I have said, improper is a weasel word.  Neither the imputation, nor the letter, indicate the content or degree of impropriety asserted in the imputation.  The plaintiff must specify in what way the influence which the plaintiff exerted was improper.

7. The imputation should be struck out.

ASOC 12.13

1. At ASOC 12.13 the plaintiff pleads the imputation that the plaintiff:  'has unlawfully disclosed information confidential to the Njamal People's Trust'.

2. The defendants challenge this imputation on the grounds of capacity and form.

3. The defendants say the imputation is not reasonably capable of arising from the terms of the letter.  The terms of the letter seek an explanation from someone as to how certain information, the audited accounts of the Trust, appeared in The Age newspaper.  The defendants say that the letter does not contend, directly or implicitly, that the plaintiff was responsible for the use of that information, nor does it contend that the use amounted to an unlawful disclosure in any way.

4. I am not satisfied that the words complained of are not capable of giving rise to the pleaded imputation.

5. The statements concerning the publication of the Trust's audited accounts are in the paragraph of the letter which commences with sentence 14.  That paragraph is about the plaintiff.  It commences with the assertion that the Inquiry is responding to accusations made by the plaintiff.  The paragraph then goes on to give an 'example' about the investigation of a payment made to one of the defendants, Mr Allen.  The next sentence refers to a report in The Age newspaper in which the audited accounts of the Trust were referred to.  The letter says that the applicants seek an explanation of how the newspaper obtained this confidential information.  The paragraph then says that Ms Westerman has a personal grudge and ulterior motive that means she should not be allowed to have input into the Inquiry.  The innuendo that the plaintiff disclosed the audited accounts of the Trust to the newspaper is capable of arising from the juxtaposition of the assertions about the report in the newspapers with statements that the plaintiff has some influence on the Inquiry and has a grudge and ulterior motives.

6. A further question is whether or not the letter is capable of giving rise to the imputation that the plaintiff has 'unlawfully' disclosed information confidential to the Trust.  The letter expressly states that the information was confidential.  The letter says that the Applicants seek an explanation of how the newspaper obtained this confidential information.  The letter then again refers to the plaintiff's personal grudge and ulterior motives.  The paragraph concludes by calling for the matter to be investigated.  I am not satisfied that the words complained of are not capable of giving rise to the pleaded imputation.  Whether or not they do give rise to that meaning is not a question to be answered on this application.

7. The defendants also challenge the imputation on the grounds of its form.  The defendants say that the imputation does not disclose the meaning of 'unlawful'.  The meaning of 'unlawful' might be uncertain depending upon its context.  In this case the context is that it refers to the disclosure of confidential information to a newspaper and says that the Applicants call for the matter to be investigated.  In this case it means not permitted or authorised by the law.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

GG
Research Orderly to the Honourable Justice Le Miere

4 MARCH 2020