Askew v Morris & Ors [2004] WASC 195 (7 September 2004)

Last Updated: 10 September 2004

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : ASKEW -v- MORRIS & ORS [2004] WASC 195

CORAM : MASTER NEWNES

HEARD : 12 AUGUST 2004

DELIVERED : 7 SEPTEMBER 2004

FILE NO/S : CIV 1928 of 2003

BETWEEN : THOMAS ASKEW

Plaintiff

AND

PATRICIA MITZIE MORRIS

First Defendant

ANNEMIEKE VANDERHELD

Second Defendant

CITY OF GOSNELLS

Third Defendant

COMMUNITY NEWSPAPERS GROUP LTD

Fourth Defendant

Catchwords:

Defamation - Application for leave to amend statement of claim - Whether imputations capable of being conveyed by words complained of - Liability of publisher of words for newspaper article - Turns on own facts

Legislation:

Nil

Result:

Application to amend statement of claim refused in part

Category: B

Representation:

Counsel:

Plaintiff : Ms F L Askew

First Defendant : Mr S M Davies

Second Defendant : Ms G M McWilliams

Third Defendant : Mr S M Davies

Fourth Defendant : Ms G M McWilliams

Solicitors:

Plaintiff : Askew & Co

First Defendant : Phillips Fox

Second Defendant : Edwards Wallace

Third Defendant : Phillips Fox

Fourth Defendant : Edwards Wallace

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

Askew v Morris & Ors [2004] WASC 43

Case(s) also cited:

Junius v Messenger Press [1999] SASC 99

Lewis v Daily Telegraph [1964] AC 234

Random House Australia Pty Ltd v Abbott (19990 [1999] FCA 1538; 94 FCR 296

1 MASTER NEWNES: This is an application by the plaintiff for leave to amend the statement of claim in terms of a minute of further substituted statement of claim dated 23 July 2004 (the "Minute"). The application is opposed by the defendants on the grounds that the statement of claim discloses no reasonable cause of action or alternatively will embarrass, prejudice or delay the fair trial of the action.

2 In the Minute, the plaintiff pleads that he is and was a resident of the third defendant (City of Gosnells) and, at all material times, the first defendant (Ms Morris) was the Mayor of the Council of the City of Gosnells. The fourth defendant (Community Newspapers) was the publisher of a local newspaper, Comment News. It appears that no claim is now sought to be pleaded against the second defendant.

3 The plaintiff alleges that, in the edition of Comment News of 29 July 2003, Community Newspapers published of and concerning him the following article:

"'CITY FIGHTS BACK'

By Annemieke Vanderheld

1. Gosnells City Council is fighting to clear its name and recoup legal costs it incurred contesting a defamation writ issued earlier this year by former councillor Thomas Askew.

2. At last Tuesday's Council meeting, Gosnells Mayor Pat Morris read a statement - prepared by the City's lawyers, Minter Ellison- to update ratepayers about the ongoing Supreme Court action.

3. Mr Askew, who re-ran unsuccessfully at the last Council elections in May, issued defamation writs to 22 defendants in February and March this year.

4. Writs of Summons were served on the City of Gosnells and its Mayor, several councillors and executive staff, including chief executive Stewart Jardine, and State Local Government Minister Tom Stephens.

5. The lawyers' statement read by Mayor Morris stated that Minter Ellison had been successful in its application to the Supreme Court for orders setting aside the two defamation writs (including a separate writ issued against Cr Julie Brown).

6. In the statement, it was explained that the application was based on Mr Askew's failure to comply with Supreme Court Rules on writs in defamation and his failure to serve the writs properly on councillors and officers named as defendants.

7. At a May 21 hearing, Justice Nicholas Hasluck ordered Mr Askew to prepare new writs and serve them on the defendants and ordered Mr Askew to pay the City's costs relating to the applications.

8. Justice Hasluck also ordered the former councillor to file and serve a statement of claim detailing his allegations within 21 days.

9. Minter Ellison confirmed that Mr Askew did not meet that deadline, which expired on June 12.

10. And the Mayor stated that defendants relating to the City of Gosnells would contest Mr Askew's allegations of defamation once they had received his statement of claim.

11. In response to media queries about Minter Ellison's statement, Mayor Morris later told Comment News in a prepared reply that in the past two years the Council dealt with a series of allegations from local personalities.

12. 'These allegations have triggered assessments and investigations by various statutory and regulatory bodies, which have been found to be baseless,' Mrs Morris stated.

13. The Mayor estimated the Council's financial costs at more than $200,000 as a result of the Council's dealing with such investigations, assessments and legal actions.

14. Mr Askew declined to comment when contacted by the Comment News."

4 It is alleged in par 6 of the Minute that Ms Morris published to Ms Vanderheld, an employee of Community Newspapers, the words attributed to her in pars 11, 12 and 13 of the article (as set out above) with the intention that they be republished by Community Newspapers or, alternatively, in circumstances where that republication was the natural and probable result of the publication of them to Ms Vanderheld, and that the words were, in fact, published by Community Newspapers on 29 July 2003.

5 It is pleaded in par 7 that Ms Morris was authorised by the City of Gosnells to publish the words. In par 8 it is alleged that the words referred, and were understood to refer, to the plaintiff. In the particulars of that paragraph, the plaintiff alleges that, on 22 July 2003, Ms Morris read out aloud at an ordinary Council meeting of the City of Gosnells a statement that is substantially in the terms of pars 3 to 10 of the article. In addition, it is alleged that, in the last paragraph of the statement read out by Ms Morris at the Council meeting, she said, "Because these actions are before the Supreme Court it is appropriate that any question relating to these actions should be on notice". In the particulars, it is alleged that, by that statement, Ms Morris invited questions on the statement and, in response to such questions by Ms Vanderheld, Ms Morris published the words attributed to her in the article to Ms Vanderheld. It is pleaded that the statement read out by Ms Morris at the Council meeting identified the plaintiff in such a way that the expression "local personalities", which she used when speaking to Ms Vanderheld, would be construed as including the plaintiff. Accordingly, the words Ms Morris spoke to Ms Vanderheld, and which were republished by Community Newspapers, would have been understood to be linked to the contents of the statement.

6 It is then pleaded in par 10 of the statement of claim that it was the natural and probable consequence of the publication of the words by Ms Morris to Ms Vanderheld that Community Newspapers would publish the words in conjunction with a report of the statement. Accordingly, Ms Morris and the City of Gosnells are responsible for the publication of the article.

7 It was submitted on behalf of Ms Morris and the City of Gosnells that the Minute fails to disclose any reasonable cause of action because no basis had been pleaded which would render them liable for any defamatory imputations that Ms Morris' words conveyed in the context of the article subsequently published by Community Newspapers.

8 In my view, the Minute does plead an arguable basis upon which Ms Morris and the City of Gosnells would be so liable. It is alleged, in effect, that Ms Morris spoke the words to Ms Vanderheld in relation to the statement that Ms Morris had earlier read out at the Council meeting, so that Ms Vanderheld would have understood them to refer to the plaintiff, and, in the circumstances, it was the natural and probable consequence of the publication of the words to Ms Vanderheld that Community Newspapers would publish them in connection with a report of the statement. I therefore accept that there is an arguable case that Ms Morris and the City of Gosnells are liable for any defamatory imputations that, in the context of a report of the terms of the statement, are conveyed by the words Ms Morris spoke. I do not, however, accept that Ms Morris and the City of Gosnells are thereby rendered liable for any imputation that is conveyed by the article. That is a matter to which I will return shortly.

9 The second contention of the defendants was that the words complained of were not capable of conveying the defamatory imputations pleaded.

10 The plaintiff alleges that the words in their natural and ordinary meaning meant and were understood to mean:

"9.1 The plaintiff was involved in making a series of allegations of a baseless nature, having the effect of causing the Council to needlessly incur costs in excess of $200,000.

9.2 The plaintiff was involved in making a series of allegations of a baseless nature, having the effect of causing the Council to needlessly incur costs in excess of $200,000 in circumstances where when asked the plaintiff would not defend his actions.

9.3 The plaintiff is a troublemaker."

11 Ms Morris and the City of Gosnells objected to all three imputations. Community Newspapers objected only to pars 9.1 and 9.2.

12 The principles to be applied on an application of this sort were set out in my reasons for judgment in an earlier application in this action, reported as Askew v Morris & Ors [2004] WASC 43, and I will not repeat them.

13 Counsel for Ms Morris and the City of Gosnells argued in relation to pars 9.1 and 9.2, first, that the word "needlessly" rendered the imputation ambiguous and therefore embarrassing and, secondly, that the imputation that the effect of the allegations by the plaintiff was to cause the Council to incur costs in excess of $200,000 was not capable of being conveyed by the words complained of.

14 In relation to the first complaint, counsel for Ms Morris and the City of Gosnells submitted that the word "needlessly" was an attempt to plead again an imputation (previously struck out) that the plaintiff had knowingly made the allegations without any basis. If that was not the purpose, then the word added nothing because it was self-evident that costs incurred in investigating baseless allegations were needlessly incurred.

15 Counsel submitted in respect of the second complaint that, in the article, Ms Morris was reported as having said that the assessments and investigations by various statutory and regulatory bodies for which the Council had incurred costs of more than $200,000 had been triggered by a series of allegations from local personalities. It was submitted that no reasonable reader could understand the article to mean that the allegations by the plaintiff alone had caused costs in excess of $200,000 to be incurred.

16 Counsel for Community Newspapers adopted the latter submission and also submitted that the word "needlessly" was excessive verbiage and was therefore embarrassing.

17 In my view, the complaint in respect of the plea that the effect of the allegations by the plaintiff was to cause the Council to incur costs in excess of $200,000 is made out and the imputation, as presently formulated, is not capable of being conveyed by the words complained of. The article says the costs were incurred as a result of a series of complaints by local personalities. There is no basis upon which a reasonable reader could conclude that the costs associated with the complaints by the plaintiff alone were of that magnitude.

18 I would not, however, accept the complaint in respect of the word "needlessly". As I understand the import of the imputation (and as it was put by the plaintiff's counsel in submissions), "needlessly" is used simply in the sense that, as the allegations were found to be baseless, the cost of the inquiries has turned out to be unnecessarily incurred. In that sense, it may be self-evident, but I do not regard it as embarrassing.

19 Counsel for Ms Morris and the City of Gosnells made a further complaint in respect of the plea in par 9.2. He submitted that, to the extent it was alleged the words meant the plaintiff had caused the costs to be incurred "in circumstances where when asked the plaintiff would not defend his actions", it was not capable of being conveyed by any parts of the article for which Ms Morris and the City of Gosnells could be liable. The imputation could arise (if at all) only by reason of the last sentence of the article. That sentence is not attributed to Ms Morris and there is nothing to suggest that it was spoken or authorised by Ms Morris, or that it was the natural and probable consequence of the words spoken by Ms Morris. On its face, it relates to a separate, subsequent event and is plainly a discrete editorial comment. Ms Morris could not therefore be liable for any imputation which arose by reason of it.

20 Counsel for Community Newspapers went further and argued that the imputation, to the extent that it incorporated the phrase "in circumstances where when asked the plaintiff would not defend his actions", was not capable of being conveyed at all. A simple statement that a person declined to comment on a matter to a particular newspaper, particularly in circumstances where legal proceedings were on foot, could not convey to a reasonable reader that the person would not defend his actions.

21 I accept that the phrase in question depends upon separate material in the article for which Ms Morris is not alleged to be liable, namely the last sentence, and in my view the imputation is therefore not capable of being conveyed by words for which Ms Morris and the City of Gosnells may be liable. I also accept the submission of Community Newspapers that the imputation is not capable of being conveyed by the article, even when the last sentence is taken into account. In my view, a reasonable reader could not conclude that the plaintiff "would not defend his actions" simply because "when contacted" (whatever that might be understood to have involved) by a particular newspaper he had declined to comment on a matter, especially in circumstances where there were legal proceedings on foot in connection with the matter. It is, moreover, not apparent that when contacted the plaintiff was asked to defend his actions.

22 It was submitted on behalf of Ms Morris and the City of Gosnells that the imputation pleaded in par 9.3 is not capable of being conveyed by the words complained of or, alternatively, does not sufficiently identify the actual condition said to be attributed to the plaintiff. I do not accept that. I do not regard the imputation as unarguable and in my view, in the context of the article, it sufficiently defines the condition alleged to be attributed to the plaintiff. Accordingly I would allow it.

23 It was also submitted that the plea in par 11 of the Minute is embarrassing because it alleges that the plaintiff has suffered damage to his reputation, stress and embarrassment due to publication of both of the words attributed to Ms Morris and the article. I understood that counsel for the plaintiff accepted the objection and that only the article is relied upon. The Minute will need to be amended accordingly.

24 I would, therefore, refuse leave to amend in terms of pars 9.1 and 9.2 of the Minute and in respect of par 11 so far as it refers to "the words".

25 I will hear the parties on the appropriate orders and costs.

Subsequent Judicial Consideration1

Treatment Over Time

Referred to (1)