Emerson v Walker & Ors [1999] WASC 265 (16 December 1999)

Last Updated: 7 June 2000

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : EMERSON -v- WALKER & ORS [1999] WASC 265

CORAM : STEYTLER J

HEARD : 22 NOVEMBER 1999

DELIVERED : 16 DECEMBER 1999

FILE NO/S : CIV 1879 of 1999

BETWEEN : ROSS EMERSON

Plaintiff

AND

PATRICK WALKER

First Defendant

DENIS ROGERS

Second Defendant

AUSTRALIAN BROADCASTING CORPORATION

Third Defendant

WEST AUSTRALIAN NEWSPAPERS LTD (ACN 008 667 632)

Fourth Defendant

Catchwords:

Defamation - Statements amounting to defamation - Application to strike out statement of claim - Turns on own facts

Legislation:

Nil

Result:

Part of statement of claim struck out with liberty to amend

Representation:

Counsel:

Plaintiff : Mr M L Bennett

First Defendant : Mr C S Gough

Second Defendant : Mr R W Richardson

Third Defendant : Mr R L Le Miere QC

Fourth Defendant : Mr M C Goldblatt

Solicitors:

Plaintiff : Bennett & Co

First Defendant : Minter Ellison

Second Defendant : Jackson McDonald

Third Defendant : Blake Dawson Waldron

Fourth Defendant : Freehill Hollingdale & Page

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

Case(s) also cited:

Amalgamated Television Services Pty Ltd v Marsden (1998) 43 NSWLR 158

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

Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd [1995] Aust Torts Rep 62,709

Australian Broadcasting Corporation v Comalco Ltd (1986) 12 FCR 510

Bickel v John Fairfax & Sons Ltd [1981] 2 NSWLR 474

Chakravarti v Advertiser Newspapers Ltd (1998) 193 CLR 519

Charleston v News Group Newspapers Ltd [1995] UKHL 6; [1995] 2 AC 65

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

Farquhar v Bottom [1980] 2 NSWLR 380

Fox v Goodfellow [1926] NZLR 58

Gascoine v McGinty (1995) 14 WAR 542

General Steel Industries Inc v Commissioner for Railways (NSW) [1964] HCA 69; (1964) 112 CLR 125

Gordon v Amalgamated Television Services Pty Ltd [1980] 2 NSWLR 410

Gumina v Williams [No 1] (1990) 3 WAR 342

Haywood v Thompson [1982] QB 47

Jones v Amalgamated Television Services (1991) 23 NSWLR 364

Jones v Skelton [1963] 1 WLR 1362

Laurence v TVW Enterprises Ltd (1992) 6 WAR 289

Leslie v Mirror Newspapers [1971] HCA 66; (1971) 125 CLR 332

Lewis v Daily Telegraph Ltd [1964] AC 234

McCormick v John Fairfax & Sons Ltd (1989) 16 NSWLR 485

Morgan v Oldhams Press Ltd [1971] 1 WLR 1239

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

Oracle International Pty Ltd v West Australian Newspapers Limited, unreported; SCt of WA (Steytler J); Library No 970696; 11 December 1997

Pickering v Publishing and Broadcasting Pty Ltd, unreported; SCt of NSW (Levine J); No 21293 of 1995; 21 June 1996

Reader's Digest Services Pty Ltd v Lamb [1982] HCA 4; (1982) 150 CLR 500

Ron Hodgson (Trading) Pty Ltd v Belvedere Motors (Hurtsville) Pty Ltd [1971] 1 NSWLR 472

Ronci v Nationwide News Pty Ltd, unreported; SCt of WA (Steytler J); Library No 960340; 21 June 1996

Sim v Stretch [1936] 2 All ER 1237

Slatyer v Daily Telegraph Newspaper Co Ltd (1907) 7 SR (NSW) 488

Slatyer v Daily Telegraph Newspaper Co Ltd [1908] HCA 22; (1908) 6 CLR 1

Sutcliffe v Pressdram Ltd [1991] 1 QB 153

The Capital & Counties Bank Ltd v George Henty & Sons (1882) 7 AC 741

Unterburger v Prospectors Airways [1962] OWN 212

Uren v John Fairfax & Sons [1966] HCA 40; (1966) 117 CLR 118

Vasta v Queensland Newspapers Pty Ltd [1991] 2 Qd R 354

Waterhouse v Broadcasting Station 2GB Pty Ltd [1985] 1 NSWLR 58

1 STEYTLER J: This is an application to strike out the plaintiff's statement of claim in defamation proceedings.

2 A separate application has been brought by each of the four defendants to whom I will refer respectively as Mr Walker, Mr Rogers, the ABC and WA Newspapers.

3 The plaintiff is, and has for some time been, employed by the Ministry of Fair Trading for the State of Western Australia as an investigations officer. He was also, from about May 1993 until July 1999, a member of the Australian Cricket Board's panel of umpires for international cricket games.

4 Mr Walker is, and was at relevant times, the chief executive officer of the Ministry of Fair Trading.

5 Mr Rogers is, and was at relevant times, the chairman of the Australian Cricket Board.

6 The ABC is a statutory corporation which broadcasts radio and television programmes throughout Australia.

7 WA Newspapers is the publisher of "The West Australian" newspaper which is distributed throughout the State of Western Australia.

8 The plaintiff has pleaded (par 6 of the statement of claim) that on about 26 January 1999 the ABC broadcast throughout Western Australia, upon its 6WF radio station, the following:

"Newsreader: 'It has been revealed that the Australian umpire at the centre of cricket's latest throwing row, Ross Emerson, has been off work because of what's believed to be a stress-related illness. Emerson, who called Sri Lankan spinner Muttiah Muralitharan for throwing at the one day match against England at the weekend has been off work at the Ministry of Fair Trading in Perth for more than 4 weeks. The Ministry's Chief Executive, Pat Walker, says he's surprised Mr Emerson can't work but can officiate in international cricket matches.

First Defendant: He has been off work for a number of weeks. He's filed an application for workers compensation. Mr Emerson's doctor, while indicating that he is not able to work has indicated that he believes cricket umpiring is within his present capabilities.' "

9 The plaintiff pleads, in par 7 of the statement of claim, that those words ("the radio broadcast") meant and were understood to mean that:

"7.1 the Plaintiff was a malingerer; alternatively

7.2 the Plaintiff had been deceitful in umpiring an international cricket match, knowing that he was mentally and physically incapable of competently performing his duties as an international cricket umpire due to a stress related condition."

10 After pleading, in effect, that the radio broadcast was defamatory of him, the plaintiff goes on to plead, in par 9, that:

"9. The ... [ABC's] Radio Publication was made in circumstances where it was the natural or probable consequence of the ... [ABC's] Radio Broadcast that the contents therein be re-published, and the ... [ABC] is thereby liable for each and every re-publication of the content of ... [its] Radio Broadcast."

11 Then, in par 11, the plaintiff pleads that on about 26 January 1999 Mr Walker said to the ABC the following:

"11.1 'I am surprised that Mr Emerson can't work but can officiate in international cricket matches';

11.2 'He's been off for a number of weeks. He's filed an application for workers compensation. Mr Emerson's doctor, while indicating that he is not able to work has indicated that he believes cricket umpiring is within his present capabilities.' "

12 In par 12 of the statement of claim the plaintiff pleads that in their natural and ordinary meaning those words ("Mr Walker's comments") meant and were understood to mean that:

"12.1 the Plaintiff was a malingerer; alternatively

12.2 the Plaintiff had been deceitful in umpiring an international cricket match knowing that he was mentally and physically incapable of competently performing his duties as an international cricket umpire due to a stress related illness;"

13 In par 16 of the statement of claim the plaintiff pleads that on 27 January 1999 the ABC published on its "ABC News" programme on Channel 2 television station the following words:

"Newsreader

Introduction: 'Controversial one day umpire suspended by the Cricket Board.

[...]

Newsreader: The Australian Cricket Board has stood down the umpire at the centre of last week's growing controversy in Adelaide. It's been revealed that Ross Emerson was umpiring despite being on stress leave from his regular job in Perth, but disciplinary proceedings against Sri Lankan captain Arjuna Ranatoonga [sic] over the incident have been adjourned.

Reporter: For almost 2 hours this morning Sri Lankan official captain Arjuna Ranatunga, Vice Captain Jayasuriya and international cricket council match referee Peter Van der Merwe met behind closed doors at the Adelaide Oval but when they emerged there was precious little detail given about the hearing of misconduct charges against Ranatunga.

ACB

Representative: The hearing has been adjourned to a date that is yet to be fixed [laughter and crowd reaction]. No reasons given.

Reporter: Ranatunga and his entourage left the oval without offering any explanation - clearly the additional time they asked for to consider their defence had led to the delay in proceedings. Ranatunga faces 5 charges of misconduct arising from Saturday's one day game against England. He stopped play for more than 15 minutes after spinner Muttiah Muralitharan was no-balled for his bowling action. Umpire Ross Emerson who made the controversial call was told prior to the hearing he wasn't required to attend. It's believed that Emerson was on stress related leave from his job with the Ministry of Fair Trading in Perth when he stood in the Sri Lankan match. The Australian Cricket Board has spoken to Emerson about the issue but the umpire wouldn't comment as he left Adelaide this afternoon.

Plaintiff: I don't wish to comment ... [accompanied by footage of the Plaintiff at the airport].

Reporter: Late today the Australian Cricket Board held a media conference confirming a decision regarding the umpire.

Second Defendant: I am announcing today that umpire Ross Emerson has been stood down from his 2 international umpiring appointments at Perth this weekend.

Reporter: The ACB says Emerson has a stress condition they were not made aware of until late last night.

Second Defendant: If he's not fit to be at work the question has to be asked is he fit to officiate in a cricket match?

Reporter: A medical procedure review by the Board is now underway. The ACB claims today's adjourned hearing was not related to news of umpire Emerson's condition."

14 In par 18 of the statement of claim the plaintiff pleads that those words ("the television broadcast") meant and were understood to mean, in their natural and ordinary meaning, that:

"18.1 the Plaintiff was a malingerer; alternatively

18.2 the Plaintiff had been deceitful in umpiring an international cricket match knowing that he was not mentally and physically capable of competently performing those umpiring duties due to a stress related illness;

18.3 the Plaintiff deceitfully concealed from the Australian Cricket Board his lack of competency to umpire an international cricket match due to his stress-related illness;"

15 After pleading that he has been defamed by the television broadcast the plaintiff goes on to plead, in par 20, that the ABC made that broadcast "in circumstances where it was a natural and probable consequence of ... [it] that the contents of that publication be republished and the ... [ABC] is thereby liable for the re-publication of the contents of ... [that] Broadcast".

16 In par 21 of the statement of claim the plaintiff pleads that on 27 January 1999 WA Newspapers published in The West Australian newspaper the following words:

"Stress Umpire Stood Down

Embattled WA Umpire Ross Emerson arrived back in Perth yesterday - but he need not have bothered.

He has been stood down from umpiring and will not be officiating in the England-Sri Lanka clash at the WACA ground on Friday. The move comes after The West Australian revealed Mr Emerson was on stress leave from his work at the Ministry of Fair Trading.

On Saturday, Mr Emerson no balled Sri Lanka's Muttiah Muralitharan for throwing.

Mr Emerson has been off work on stress leave for several weeks but has continued to umpire international matches.

Australian Cricket Board Chairman Denis Rogers announced yesterday that Mr Emerson had been stood down because it was discovered he was on stress leave from work.

'If he is not fit to be at work, the question has to be asked, is he fit to officiate in a cricket match?' Mr Rogers said.

Ministry Chief Executive Pat Walker said a doctor confirmed Mr Emerson's condition, which was being investigated by State Government Insurance manager Risk Cover.

'Mr Emerson had an application for workers compensation' he said. 'That's being dealt with by Risk Cover and there are some enquiries by Risk Cover in relation to that claim.'

'Mr Emerson's doctor, while indicating that he is not able to work, has indicated that he believes that cricket umpiring is within his present capabilities.'

Mr Rogers said the decision had nothing to do with Mr Emerson's controversial no ball call of Muralitheran in Adelaide, which nearly sparked a walk out by the Sri Lankan team.

'It is the ACB position that in these circumstances it is both entitled and required to satisfy itself and the cricket public that his admitted medical condition does not impact on his ability to umpire international cricket matches' he said.

Mr Rogers said Mr Emerson had told him that his stress condition did not affect his umpiring ability.

But the ACB was under a stringent duty of care to minimise the risk of injury or illness to its employees and therefore must do a comprehensive review of Mr Emerson's condition.

Mr Emerson has been stood down for 2 international umpiring appointments in Perth this weekend.

He arrived at Perth Domestic Airport from Adelaide yesterday afternoon and was besieged by a big media pack.

He refused to answer questions and retreated to the mens toilets. He emerged several minutes later, claimed his baggage from the carousel and left in a taxi.' "

17 The plaintiff contends, in par 22, that those words ("the first newspaper publication") meant and were understood to mean that:

"22.1 the Plaintiff was a malingerer; alternatively

22.2 the Plaintiff had been deceitful in umpiring an international cricket match knowing that he was not mentally and physically capable of competently performing those umpiring duties due to a stress related illness;

22.3 the Plaintiff deliberately and deceitfully concealed from the Australian Cricket Board his lack of competence to umpire an international cricket match due to a stress-related illness;"

18 Once again, after pleading that he has been defamed by the first newspaper publication the plaintiff pleads (par 24) that the publication was made "in circumstances where it was a natural and probable consequence of ... [it] that the contents of that publication be republished and ... [WA Newspapers] is thereby liable for any and all republications of ... [it]".

19 In par 25 of the statement of claim the plaintiff alleges that on 28 January 1999 WA Newspapers published in The West Australian the following words:

"Stress Umpire Left Police

Stressed international cricket umpire Ross Emerson was one of two former New South Wales police employed by the WA Ministry of Fair Trading as investigators.

Both were detective-constables who had left the New South Wales Police Service after receiving threats.

The other former detective was Neil Stockton who admitted to corruption when he gave evidence as a protective [sic] witness at the Wood Royal Commission.

Mr Stockton resigned from the Ministry last year after public sector standards commissioner Don Saunders found his behaviour had been inappropriate.

Mr Emerson was stood down from umpiring by the Australian Cricket Board on Tuesday, the same day the West Australian revealed he had been off work for several weeks due to stress. After standing down Mr Emerson, ACB Chairman Dennis Rogers said 'if he is not fit to be at work the question has to be asked is he fit to officiate in a cricket match?'

Mr Rogers said the decision to stand down Mr Emerson had nothing to do with his controversial no-ball call for throwing against Sri-Lankan Muttiah Muralitheran in Adelaide on Saturday.

The call sparked a near walk off by the Sri Lankans [ ... ]"

20 Those words ("the second newspaper publication") are pleaded (par 26) to have meant and been understood to mean, in their natural and ordinary meaning, that:

"26.1 the Plaintiff was a malingerer; alternatively

26.2 the Plaintiff had acted deceitfully in umpiring an international cricket match knowing that he was not mentally and physically capable of competently performing those umpiring duties due to a stress related condition;

26.3 the Plaintiff deliberately and deceitfully concealed from the Australian Cricket Board his lack of competence to umpire an international cricket match, due to his stress related illness;"

21 There follows, in par 27 and par 28, a similar style of pleading to that adopted in respect of par 23 and par 24, with par 28 being in similar terms to par 24.

22 In par 29 the plaintiff pleads that on 26 January 1999, at an Australian Cricket Board press conference, Mr Rogers said to members of the Australian television, radio and newspaper press, the following words:

"29.1 'I am announcing today that umpire Ross Emerson has been stood down from his 2 international umpiring appointments in Perth this weekend.';

29.2 'Ross Emerson had a stress condition which we were not made aware of until last night';

29.3 'If he's not fit to be at work, the question has to be asked, is he fit to officiate in a cricket match?' "

23 In par 30 the plaintiff alleges that those words ("Mr Rogers' comments") meant and were understood to mean, in their natural and ordinary meaning, that:

"30.1 the Plaintiff was a malingerer; alternatively

30.2 the Plaintiff had acted deceitfully in umpiring an international cricket match knowing that he was not mentally and physically capable of competently performing those umpiring duties due to a stress related illness;

30.3 the Plaintiff deliberately and deceitfully concealed from the Australian Cricket Board his lack of competence to umpire an international cricket match, due to his stress-related illness."

24 In par 34 to par 42 of the statement of claim the plaintiff pleads as follows:

"34. The First Defendant's publication was lacking in bona fides, was unjustifiable and unreasonable in a manner which has aggravated the hurt, damage and distress to the Plaintiff in that:

34.1 the First Defendant was the Chief Executive Officer of the Plaintiff's employer, and the Plaintiff's superior in an employment relationship;

34.2 the information regarding the Plaintiff's stress leave was highly confidential and sensitive;

34.3 the publication to the media of the First Defendant's publication of the sensitive and confidential material relating to the [P]laintiff represented a breach of the Public Service Act (WA) and the First Defendant's duties of confidentiality to the First Defendant [sic];

34.4 the First Defendant's Publication was gratuitous;

34.5 the First Defendant knew that the defamatory imputation conveyed by the ... [his] Publication was false, in that ... [he] had, at the time of publication, prior knowledge of the [P]laintiff's umpiring activities and the nature of the [p]laintiff's stress leave, and knew that the Plaintiff would appreciate and apprehend that the First Defendant's Publication was false.

34.6 the First Defendant has failed, alternatively refused, to apologise to the Plaintiff, despite an apology being self-evidently called for.

35. The First Defendant's conduct in making ... [his comments] and thereafter has been in contumelious disregard of the Plaintiff's rights and amounts to positive misconduct and the Plaintiff repeats paragraphs 34.1, to 34.6 herein.

36. By reason of the matters described at paragraphs 1 and 11 to 15 the Plaintiff says further that he has suffered a general loss of business and special damages by reason of the First Defendant's Publication.

PARTICULARS OF DAMAGE

(a) In July 1999 the Australian Cricket Board did not re-appoint the Plaintiff to the Australian Cricket Board's Umpiring Panel.

(b) Further particulars of loss and damage will be provided prior to trial.

37. By reason of the matters described at paragraph 34 herein the Plaintiff claims aggravated damages against the First Defendant.

38. By reason of the matters described at paragraph 35 herein the Plaintiff claims exemplary damages against the First Defendant.

39. The Second Defendant's publication of ... [his comments] was unjustifiable, unreasonable and lacking in bona fides in that the Second Defendant knew that the imputations conveyed therein were false, in that ... [he] knew that the Australian Cricket Board had knowledge of the fact that the Plaintiff was on stress leave well prior to the day before ... [Mr Rogers made his comments], and knew thereby that the Plaintiff would appreciate that ... [his comments were] false.

PARTICULARS

(a) the Plaintiff had told the Manager of Umpiring for the Australia [sic] Cricket Board, Mr Tony Crafter, of the circumstances of his stress leave from the Ministry of Fair Trading for the State of Western Australia in or about 2 December 1998.

40. The Second Defendant made the ... [his comments] contumelious disregard of the Plaintiff's rights in that the ... [comments were] made:

40.1 in the prospect that the advantage to the Second Defendant in doing so would outweigh the disadvantage to the Plaintiff in being defamed, in that the Second Defendant made the publication to attribute blame to the Plaintiff for the controversy which had arisen regarding the Plaintiff no-balling Sri Lankan bowler Muttiah Muralitheran for throwing in the Sri Lankan-England cricket match; and

40.2 in a sensational manner, being at a press conference and thereby effectively thereby [sic] to the world at large.

41. By reason of the matters described at paragraph 39 the Plaintiff claims aggravated damages against the Second Defendant.

42. By reason of the matters set out in paragraph 40 the Plaintiff claims exemplary damages against the Second Defendant."

Mr Walker's application

25 Mr Walker, in his application, has applied to strike out pars 12.1, 12.2, 34.3, 34.4 and 34.5 of the statement of claim.

26 The application to strike out par 12.1 is made upon the basis that the words complained of are incapable of giving rise to the pleaded imputation.

27 Imputations will only be struck out pursuant to an application of this kind if they are so obviously untenable that they cannot possibly succeed or, putting it differently, are manifestly groundless. (See Taylor v Jecks (1993) 10 WAR 309 at 319; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 at 675 and Smith v Littlemore (1996) 15 WAR 289 at 294.)

28 I will, as regards the test to be applied, repeat what I have recently said in Heytesbury Holdings Pty Ltd v City of Subiaco (1998) 19 WAR 440 at 446 - 447:

"The usual starting point is the following, often quoted, extract from the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362 at 1370 - 1371; [1963] 3 All ER 952 at 958:

'It is well settled that the question whether words which are complained of are capable of conveying a defamatory meaning is a question of law and is therefore one calling for decision by the court. If the words are so capable then it is a question for the jury to decide whether the words do in fact convey a defamatory meaning. In deciding whether words are capable of conveying a defamatory meaning the court will reject those meanings which can only emerge as the product of some strained or forced or utterly unreasonable interpretation. In Capital & Counties Bank v Henty & Sons ((1882) 7 App Cas 741 at 745) Lord Selborne LC said: 'The test, according to the authorities, is, whether under the circumstances in which the writing was published, reasonable men, to whom the publication was made, would be likely to understand it in a libellous sense.'

The ordinary and natural meaning of words may be either the literal meaning or it may be an implied or inferred or an indirect meaning: any meaning that does not require the support of extrinsic facts passing beyond general knowledge but is a meaning which is capable of being detected in the language used can be a part of the ordinary and natural meaning of words. See Lewis v Daily Telegraph Ltd [1964] AC 234. The ordinary and natural meaning may therefore include any implication or inference which a reasonable reader guided not by any special but only by general knowledge and not fettered by any strict legal rules of construction would draw from the words. The test of reasonableness guides and directs the court in its function of deciding whether it is open to a jury in any particular case to hold that reasonable persons would understand the words complained of in a defamatory sense.'

It should be assumed that reasonable people of ordinary intelligence and education who are also fair-minded and entertain a sense of justice will read the article as a whole and in the context of its publication: see Bik v Mirror Newspapers Ltd [1979] 2 NSWLR 679 (n) at 683.

It is not enough that the words complained of might be understood in a defamatory sense by some person. Rather, the test is that of whether, under the circumstances in which the writing is published, reasonable people to whom the publication was made would be likely to understand it in a libellous sense: see Capital & Counties Bank Ltd v Henty & Sons (at 745 HL); Nevill v Fine Art and General Insurance Co Ltd [1897] AC 68 at 72 - 73; Lewis v Daily Telegraph Ltd (at 259).

The ordinary reasonable person is not unusually suspicious or unusually naive or avid for scandal: see Lewis v Daily Telegraph Ltd (at 259 - 260).

Against that, the ordinary reasonable reader is a lay person and must be regarded as prone to engage in loose thinking in relation to sensational publications (see Farquhar v Bottom (1980) 2 NSWLR 380 at 386; Aqua Vital Australia Ltd v Swan Television & Radio Broadcasters Pty Ltd [1995] Aust Tort Rep 62,481 at 62,485) and to have a capacity for implication which is greater than that of the lawyer, especially when the implication is derogatory: see Lewis v Daily Telegraph Ltd (at 277)."

29 I would add to what I there said, in the present context, that it is important to bear in mind the distinction, referred to by Mason J in Mirror Newspapers Ltd v Harrison [1982] HCA 50; (1982) 149 CLR 293 at 301, between a reader's understanding of a publication and judgments or conclusions at which that reader might arrive as a result of his or her own beliefs and prejudices. His Honour said, in that respect (ibid):

"It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition."

30 Returning to par 12.1, counsel for Mr Walker contends that there is nothing in the natural and ordinary meaning of Mr Walker's comments which is capable of supporting an imputation that the plaintiff was a malingerer. He submitted that the only way in which any person who heard those comments could arrive at that conclusion was by resort to that person's own prejudices.

31 I am not persuaded that this imputation is so manifestly untenable as to warrant it being struck out. It seems to me that it is arguable that it is capable of arising from Mr Walker's expression of surprise, as the Chief Executive Officer of the Ministry of Fair Trading, that the plaintiff could not work but could officiate in international cricket matches. It is difficult to see why that surprise should be newsworthy if it is not to be taken as reflecting either upon the plaintiff's ability to work or upon his competence to umpire. The argument is open that that expression of surprise, coming as it does from the plaintiff's employer, would be likely to be taken by reasonable listeners, without resort to their own prejudices, to indicate that the plaintiff's employer believes that the plaintiff was not so ill as to be unable to work if he was able to officiate in international cricket matches and that he was consequently a malingerer. If that imputation is arguably capable of arising from what was said by the newsreader then, it seems to me, the mere fact that Mr Walker said, in the course of the broadcast, that the plaintiff's doctor had indicated that he was not able to work is not sufficient to deny any force to that argument in circumstances in which the expression of surprise must be taken to have been made with full knowledge of that fact.

32 I am consequently not prepared to strike out par 12.1.

33 As to par 12.2 counsel for Mr Walker contends that there is nothing in the words attributed to Mr Walker which is even arguably capable of suggesting that the plaintiff had been deceitful in any respect at all.

34 It seems to me that that submission has merit. Even if, as counsel for the plaintiff submitted, the surprise attributed to Mr Walker might be taken by some listeners to be surprise that the plaintiff is able to officiate in international cricket matches that does not mean that the plaintiff had, in any sense, been deceitful. Mr Walker is reported to have said that the plaintiff had consulted his doctor and been told that he was able to umpire cricket matches. That is hardly consistent with deceit on the plaintiff's part in umpiring when he knew that he was incapable of doing so competently because of a stress related illness.

35 I should add, in any event, that it is not apparent just what is the deceit referred to in par 12.2. The word "deceitful" is not, in my opinion, apt to describe conduct in the form of umpiring an international cricket match when knowing of an incapacity to do so competently. Rather, it seems to me, it conveys something more than this as, for example, the suggestion of concealment of the incapacity from the Australian Cricket Board. While that meaning was disavowed by counsel for the plaintiff it seems to me that, if no such additional meaning is both intended and made clear in the pleading, the word "deceitful" should not be permitted to stand.

36 I should also add, although no point was taken in this respect, that there is nothing in Mr Walker's comments which suggests that the plaintiff had a stress-related illness.

37 I consequently propose to strike out par 12.2.

38 The complaint in respect of par 34.3 is no more than one to the effect that the Act there referred to has been misdescribed. While that is so counsel for the plaintiff has indicated an intention to amend to correct the position and no further comment is required in that respect.

39 As to par 34.4 counsel for Mr Walker complains that the fact that a publication is gratuitous is not a matter which is capable of supporting a claim for aggravated damages. He submitted that the word "gratuitous" means that information was given without motive and that that is not a matter which is even relevant to the question of aggravated damages. However, it is, I think, apparent that the word "gratuitous", in this context, is intended to be read as "uninvited". This was confirmed by counsel for the plaintiff. It seems to me that that fact, taken together with the other matters pleaded in par 34, is arguably capable of giving rise to a claim for aggravated damages (as to which see my comments in Gardiner v Ray [1999] WASC 140; par 23 to par 29). I consequently do not propose to strike out this paragraph.

40 Finally, so far as Mr Walker is concerned, his counsel complains that par 34.5 is embarrassing because it is vague, ambiguous and unclear. He also complains that the fact that Mr Walker had prior knowledge of the plaintiff's umpiring activities and of the nature of his stress leave does not mean that he knew that the defamatory imputation conveyed by his publication was false.

41 I must say, with due respect, that par 34.5 is not clear. That is to say, it is by no means plain to me what are the "umpiring activities" and the "nature of the plaintiff's stress leave" referred to by the plaintiff which should give rise to an inference that Mr Walker knew that the imputation (and it is not clear which imputation is referred to, two having been pleaded) was false.

42 It consequently seems to me that this paragraph should be repleaded and I propose to strike it out.

Mr Rogers' application

43 Mr Rogers has brought an application to strike out the whole of the statement of claim against him, alternatively pars 30, 31, 39, 40, 41 and 42 thereof.

44 Mr Rogers' first complaint is that the imputation pleaded in par 30.1 is incapable of arising from his comments.

45 It seems to me that there is nothing in the words attributed to Mr Rogers which could arguably give rise to the imputation that the plaintiff was a malingerer.

46 Mr Rogers is attributed as saying that the plaintiff "had a stress condition". Moreover it seems, from what was said by Mr Rogers, that it was this stress condition which led to the plaintiff being stood down from his two international umpiring appointments. It is in that context that the question is put, "If he's not fit to be at work, the question has to be asked, is he fit to officiate in a cricket match?". The emphasis is on the plaintiff's fitness to officiate in a cricket match and not on his fitness to be at work. Nothing can, in this context, be drawn from the use of the word "If". The use of that word, in its overall context, is not in my opinion even arguably capable of suggesting to any reasonable listener that Mr Rogers believed that the plaintiff was fit to be at work. Rather, the context of the question is such that any reasonable listener would understand it to mean, "In circumstances in which the plaintiff is not fit to be at work, a question has to be asked, is he fit to officiate in a cricket match?".

47 I consequently propose to strike out par 30.1.

48 As to par 30.2 it seems to me that there is nothing in the words attributed to Mr Rogers which could arguably give rise to an imputation that the plaintiff had "acted deceitfully" in any respect. There is nothing to suggest that the plaintiff knew that he was mentally and physically incapable of competently performing his umpiring duties because of his stress related illness. Indeed there is nothing in the words complained of to suggest that the plaintiff had umpired a cricket match at all. I should also repeat what I have said as to the use of the word "deceitfully" in respect of par 12.2.

49 I consequently propose to strike out par 30.2 also.

50 As to imputation 30.3 it seems to me that the complaints in respect of this imputation are likewise well made. While it might be inferred from what is pleaded in par 29.2 that the plaintiff had not disclosed his stress condition until the previous evening or, perhaps, at all, there is nothing in the quoted words which is even arguably capable of suggesting that he had deliberately and deceitfully concealed from the Australian Cricket Board his lack of competence to umpire an international cricket match. There is, as I have earlier said, nothing in the quoted words to suggest that the plaintiff was even aware of any lack of competence to umpire an international cricket match due to his stress condition.

51 I should add, in any event, that there may be some overlap between imputations 30.2 and 30.3 if the word "deceitful" in par 30.2 does convey the notion of concealment of an incapacity to umpire competently, that notion being the subject of the imputation pleaded in par 30.3.

52 I consequently propose to strike out imputation 30.3 also.

53 It follows that par 31, par 32 and par 33 should also be struck out as these are unable to stand in the absence of any plea of defamatory imputations arising from Mr Rogers' comments.

54 It also follows that par 39, par 40, par 41 and par 42 cannot stand as these depend upon the pleading of defamatory imputations in par 30.

55 However I will, in any event, deal with the complaint made in respect of par 39. That is to the effect that the particular that the plaintiff had told the Manager of Umpiring for the Australian Cricket Board, Mr Tony Crafter, of the circumstances of his stress leave in or about 2 December 1998 is not enough to support the plea of knowledge either on the part of the Australian Cricket Board itself or on the part of Mr Rogers, well prior to the day before Mr Rogers' comments, that the plaintiff was on stress leave.

56 While counsel for Mr Rogers contended that information known to the Manager of Umpiring for the Australian Cricket Board is not necessarily information known to the Australian Cricket Board itself it seems to me that it is at least arguably such. Indeed, it might be thought that the Board's Manager of Umpiring was the person to whom the fact of stress leave should be made known. However I accept that the mere fact that Mr Crafter knew of the plaintiff's stress leave does not mean that Mr Rogers knew of it. There cannot be any plea of imputed knowledge in this context. The plea against Mr Rogers must be one of actual knowledge and, it seems to me, the particular does not support this.

57 Next, I should mention that the separate complaint made on behalf of Mr Rogers in respect of par 40, and consequently par 42, was not pursued at the hearing.

58 While counsel for Mr Rogers sought to raise complaints about par 18, par 22 and par 26 of the statement of claim (albeit these were not raised in his application to strike out) it is unnecessary for me to consider them as none of these paragraphs raises any cause of action against Mr Rogers himself. While the plaintiff has pleaded that Mr Rogers is liable for the republication of the defamatory imputations said to arise from what was said by him he can only be held liable for imputations arising only from his own words. I have already held that none of the imputations pleaded in that respect can stand.

The ABC's application

59 That brings me to the complaints made on behalf of the ABC.

60 It seeks an order that the whole of the statement of claim as against it be struck out, alternatively that pars 7, 8, 9, 18, 19 and 20 of the statement of claim be struck out.

61 Because, as will become apparent, I have not acceded to all the complaints made on behalf of the ABC it follows that I am not prepared to strike out the whole of the statement of claim against it.

62 As to the complaint made in respect of par 7 of the statement of claim the ABC contends that neither of the imputations there pleaded is capable of arising from the radio broadcast.

63 I am not persuaded that the imputation (pleaded in par 7.1) that the plaintiff was a malingerer is so manifestly untenable as to warrant it being struck out. My reasons for this conclusion are those which I have set out above in declining to strike out par 12.1 of the statement of claim and I will not repeat them. It is enough to say that, while there are some different and additional words pleaded in par 6 of the statement of claim when compared to those pleaded in par 11 thereof, the existence of those additional and different words does not support any different conclusion.

64 I consequently do not propose to strike out par 7.1.

65 However it seems to me that imputation 7.2 is plainly unsustainable. There is nothing in the radio broadcast which could even arguably be taken to suggest that the plaintiff had been deceitful in any respect or even that he knew that cricket umpiring was not within his capabilities. Rather, the broadcast makes it plain that the plaintiff had been told by his doctor that cricket umpiring was within his capabilities. I refer, as regards this imputation, to what I have said in respect of par 12.2.

66 Paragraph 9 of the statement of claim is objected to by the ABC upon the ground that it is irrelevant in circumstances in which no republication of the content of that broadcast is pleaded in the statement of claim.

67 I accept that there is no purpose in a plea that the ABC is liable for republications when no republications are alleged. That being so, all of the words following the comma in the third line of par 9 should be struck out. While I doubt that the balance of the plea serves any utility in the case of a mass media publication, I will not strike it out upon the basis that what is there pleaded might arguably be relevant to the issue of damages.

68 The ABC next complains that there is nothing in the television broadcast which is arguably capable of giving rise to the imputations pleaded in par 18.

69 As to the imputation pleaded in par 18.1, that the plaintiff was a malingerer, it seems to me that there is nothing in the television broadcast which is arguably capable of giving rise to this. The mere statement that it had been revealed that he was umpiring despite being on stress leave from his regular job is not enough, more particularly in circumstances in which the Australian Cricket Board is reported as saying that the plaintiff "has a stress condition". Moreover the reporter spoke of "news of umpire Emerson's condition". There is no suggestion that it is an "alleged condition". Rather, the suggestion is that it is an actual "condition". The words "If he's not fit to be at work the question has to be asked is he fit to officiate in a cricket match?" attributed to Mr Rogers must be seen in the context to which I have earlier referred when dealing with Mr Rogers' application in respect of par 30.1.

70 As to the imputation pleaded in par 18.2, there is nothing in the television broadcast which is arguably capable of giving rise to any suggestion of deceit on the plaintiff's part in the respect pleaded. There is nothing in the published words to suggest that the plaintiff knew that he was incapable of competently performing his umpiring duties because of his stress-related illness (if, indeed, that was the case) and consequently that he was "deceitful" in umpiring when he knew that he could not competently do so. Furthermore, I repeat what I have previously said about the use of the word "deceitful" in this context.

71 I consequently propose to strike out par 18.2.

72 Similarly, the imputation of deceit in par 18.3 is not arguably capable of being supported by anything said in the television broadcast. While the reporter is recorded as saying that the Australian Cricket Board was only made aware of the plaintiff's stress condition "late last night" there is no suggestion that the plaintiff had been deceitful in not disclosing that fact until that time. Nor is that conclusion altered by the use of the word "revealed" in the newsreader's initial comments. Even if the fact that the plaintiff suffered from a stress related illness was "revealed" by someone other than the plaintiff this could not, in my opinion, even arguably give rise to an imputation, without more, that the plaintiff had been deceitful in not disclosing that fact himself. The deceit which is said to be inferred is one in failing to disclose his inability to umpire competently. While it might be inferred from the television broadcast that the Australian Cricket Board questioned his competence, as a result of his stress-related illness, there is, as I have said, nothing to suggest that the plaintiff believed that he was not capable of umpiring competently and therefore that he deliberately concealed any such lack of competency from the Australian Cricket Board.

73 I should add that what I have said above as regards imputations 30.2 and 30.3 is equally applicable to imputations 18.2 and 18.3.

74 I consequently propose to strike out par 18.3 also.

75 Next, counsel for the ABC made complaints in respect of par 20 of the statement of claim which are similar to those made in respect of par 9 thereof. I propose, for the reasons I have given in respect of par 9, to strike out that part of par 20 which begins with the word "and" in the penultimate line thereof.

76 That brings me to the application brought on behalf of WA Newspapers.

WA Newspapers' application

77 WA Newspapers has applied to strike out pars 22, 23, 24, 25, 26, 27 and 28 of the statement of claim.

78 The complaint made in respect of par 22 is that none of the imputations there pleaded is capable of arising from the first newspaper report.

79 The first of these is that to the effect that the plaintiff was a malingerer.

80 There are statements in the first newspaper article which suggest that the plaintiff does suffer from a stress-related illness. The article reports that Mr Walker had said that a doctor had confirmed the plaintiff's condition and that the doctor had indicated that the plaintiff was unable to work. There is also a reference, quoting Mr Rogers, to the Australian Cricket Board's position arising from the plaintiff's "admitted medical condition".

81 However, the fourth paragraph of the article suggests that, notwithstanding that the plaintiff has been off work on stress leave for several weeks, he has continued to umpire international matches. The article also quotes Mr Walker as saying that the plaintiff's condition "was being investigated by State Government Insurance Manager Risk Cover" and that Risk Cover was making "some inquiries" in relation to his claim for workers compensation.

82 It seems to me not to be manifestly untenable to suggest that an inference is capable of arising from the article taken as a whole, when regard is had to the reference to the plaintiff's continued umpiring of international matches and the "investigations" and "inquiries" by Risk Cover in respect of the plaintiff's condition and claim for workers compensation, that his stress-related illness was not so serious as to justify his being off work, at least during those times when he continued his umpiring activities, and consequently that he was a malingerer.

83 That said, I am not persuaded that it is arguable that either of imputations 22.2 and 22.3 is capable of arising from the first newspaper report.

84 There is, once again, nothing to suggest that the plaintiff had been deceitful in any respect. While it is true that the first newspaper article reports that it was The West Australian itself which revealed that the plaintiff was on stress leave, that does not give rise to an imputation that the plaintiff had been deceitful in continuing to umpire international cricket matches knowing that he was incapable of competently doing so or that he had deceitfully concealed his lack of competence from the Australian Cricket Board. Rather, the first newspaper publication quotes Mr Walker as saying that the plaintiff's doctor believes that cricket umpiring is within the plaintiff's capabilities. I should also repeat, as regards par 22.2 and par 22.3, what I have said in respect of par 30.2 (save that it does appear from the words quoted in par 21 that the plaintiff had been umpiring while on stress leave) and par 30.3.

85 The next complaint relates to par 24 of the statement of claim which deals with liability for republication. The position in that respect is no different to that in respect of par 20 and I would consequently strike out the word "and" in the penultimate line of that paragraph and everything which follows it.

86 WA Newspapers next complaint relates to par 25. It contends that six paragraphs of the second newspaper publication have been left out and that those paragraphs materially alter or qualify that part of the publication which has been pleaded by the plaintiff. The missing paragraphs read as follows:

"Minister for Fair Trading Doug Shave detailed the backgrounds of Mr Emerson and Mr Stockton in Parliament last year in response to questions by Labour MLA Alan Carpenter.

Mr Shave said Mr Emerson received a medical discharge from the NSW Police Service after he suffered an 'on-duty injury'.

Mr Shave did not specify whether the injury was physical but said Mr Emerson had been threatened by crooked NSW Detective Roger Rogerson.

He was involved in internal investigations in NSW. He said there was a lot of concern and threats were made by people such as Roger Rogerson about the way he was behaving.

He was a very fine officer."

87 The only imputations pleaded to arise from this second newspaper publication are those which were also pleaded to have arisen from the first. None of the omitted paragraphs is in any sense relevant to any of those imputations, whether as context or otherwise. However, the same might be said of the first four paragraphs of the second newspaper publication and, in particular, the third and fourth paragraphs. It seems to me that if the last six paragraphs are to be omitted then so too should at least the third and fourth paragraphs be omitted. Consequently, if this paragraph was otherwise to stand I would strike those paragraphs from par 25 of the statement of claim. However, because I propose, for reasons which I am about to state, to strike out the whole of par 26, par 25 must fall with it.

88 The imputation in par 26.1 that the plaintiff was a malingerer could only arise, if it is capable of arising, from the revelation that he had been off work for several weeks due to stress coupled with the comment of Mr Rogers to the effect that "If he is not fit to be at work the question has to be asked is he fit to officiate in a cricket match?". It seems to me that that comment, in its context (including the reference to the fact that the plaintiff had been stood down) is not arguably capable of giving rise to an imputation that the plaintiff was a malingerer. I reiterate, in this respect, what I have said in respect of par 30.1 of the statement of claim.

89 As to par 26.2 and par 26.3 I am, once again, of the opinion that there is nothing in the publication which is even arguably capable of giving rise to an imputation of deceit on the plaintiff's part. There is nothing in the second newspaper publication to suggest that the plaintiff knew that he was not mentally and physically capable of competently performing umpiring duties. I should also repeat, in regard to these paragraphs, what I have said in respect of par 30.2 (save that it does appear from the words quoted in par 25 that the plaintiff had been umpiring while on stress leave) and par 30.3.

90 It follows that par 27 and par 28, too, cannot stand. However I should add, in respect of par 28, that it suffers from the same difficulty as par 20 and par 24.

Conclusion

91 It follows that I propose, in Mr Walker's application, to strike out pars 12.2 and 34.5. I propose, in Mr Rogers' application, to strike out pars 30 to 33 and pars 39 to 42. I propose in the ABC's application to strike out par 7.2, part of par 9, par 18 and part of par 20. I propose, in WA Newspapers' application, to strike out par 22.2, par 22.3, part of par 24 and pars 25 to 28 inclusive. I would give the plaintiff liberty to amend.

Authorities Cited19

Referred to (19)