Matchett v Queensland Newspapers Pty Ltd
[2004] QSC 223
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- Unreported Judgment
- Matchett v Queensland Newspapers Pty Ltd[2004] QSC 223
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Matchett v Queensland Newspapers Pty Ltd[2004] QSC 223
Matchett v Queensland Newspapers Pty Ltd[2004] QSC 223
SUPREME COURT OF QUEENSLAND
CIVIL JURISDICTION
ATKINSON J
No 8524 of 1997
RUTH LEWIN MATCHETT | Applicant |
and | |
QUEENSLAND NEWSPAPERS PTY LTD and MICHAEL WARE | First Respondent
Second Respondent |
BRISBANE
DATE 14/07/2004
JUDGMENT
HER HONOUR: The defendants, Queensland Newspapers Proprietary Limited and Michael Ware, have brought an application to the Court that subparagraphs 7(a), (b), (c), (d), and (e) of the second further amended Statement of Claim of the plaintiff (the "Statement of Claim") be struck out with leave to replead.
That paragraph is the paragraph in the Statement of Claim which contains the imputations which the plaintiff says arise in the natural and ordinary meaning of the article of which she complains.
The article of which she complains was published on 16 September 1997 on page one of the Courier Mail under the heading "Child Sex Abuse Claims Ignored". The by-line of the article shows the name of the second defendant. The first defendant is alleged to be the publisher of the Courier Mail.
The plaintiff has pleaded the publication of part of the article. No complaint is made about that. In paragraph 4, the material part of the article which was complained about is said to be:
"The Family Services Department abandoned its duty to protect children by refusing to investigate allegations of paedophilia outside the home, a confidential police report has claimed.
In March 1994 Department officers were directed not to take any investigative action when a child claimed sexual or other abuse by someone who was not a member of their family, except in special circumstances.
The Police Service's Project Horizon report on child protection against paedophilia in Queensland slammed then Director-General Ruth Matchett's directive as a 'gross abdication' of the Department's duty to safeguard children.
'This decision has dire consequences for the due process of investigating paedophile assaults of children since officers do not see such victims as subject to the Scan Team (Child Abuse) Assessment', the report said.
Ms Matchett could not be contacted for comment last night.
However, it was revealed that Minister Kev Lingard was set to introduce new legislation into State Parliament to cover his Families, Youth and Community Care Department, the new name for Family Services.
Under the new legislation the department would have to notify police of any allegations of abuse.
Under the old policy, no action was taken over claims of abuse committed outside the family...
Mr Lingard said yesterday that he was 'appalled and mortified' to think that action on whether to fight sexual abuse hinged on who had abused the child...
The police's 1996 Horizon Project report found that under department guidelines victims of paedophilia committed by someone not in their family were still being discriminated against and ignored...
A ministerial briefing paper, believed to have been drawn up earlier this year, claimed that the 1994 policy 'was not developed as a response to resource constraints'."
The plaintiff has alleged that five imputations arise from that article. They are that:
(a)The plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, was instrumental in having the Department abandon its duty to protect children;
(b)The plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, was responsible for a gross abdication of the Department's duty to safeguard children;
(c)The plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, directed departmental officers not to take any action when a child claimed sexual or other abuse by a person outside the child's family, except in special circumstances;
(d)The plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, was responsible for a directive that had dire consequences for the process of investigating paedophile assaults on children;
(e)The plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, was responsible for a policy that no action should be taken over claims of child abuse committed outside the family.
It should be noted that the article was allegedly published in September 1997. The matter was commenced promptly in 1997 and was prosecuted diligently but went into hiatus for two years in 2000 and 2001. Since then there have been interlocutory squabbles and storms regarding the adequacy of the Statement of Claim, such that the amount of time which has passed since the article was first published has become worryingly long.
It is to be regretted that an action involving the reputation of a person should take so long to get to trial and I intend to give directions at the end of this ex tempore judgment to ensure that the matter proceeds more swiftly than it has in the past. I should also say that I am giving this judgment ex tempore at least in part to assist with the process of hastening the progress of this matter.
The application to strike out is governed by Rule 171 of the Uniform Civil Procedure Rules of Queensland:
"(1)This rule applies if a pleading, or part of a pleading -
(a)discloses no reasonable cause of action or defence; or
(b)has a tendency to prejudice or delay the fair trial of the proceeding; or
(c)is unnecessary or scandalous; or
(d)is frivolous or vexatious; or
(e)is otherwise an abuse of the process of the Court.
(2)The court, at any stage of the proceeding, may strike out all, or part of the pleading ..."
As I perceive it, the arguments tended to centre on the question of Rule 171(1)(a) and (b), whether or not the imputations in their current form had the tendency to prejudice or delay the fair trial of the proceeding and disclose a cause of action.
Essentially the argument of the defendants was that they did not disclose a cause of action because firstly the defamatory imputation was incapable of arising from the way in which the imputations were pleaded, and secondly, that the imputations pleaded were insufficiently precise for the defendants to be able to properly plead defences to them.
There was little disagreement between the parties as to the relevant law but rather as to the application of that law to this particular pleading.
As McPherson JA held in Favell v Queensland Newspapers P/L [2004] QCA 135 at [1],
"the question is whether the material published by the defendant is capable of giving rise to the defamatory imputations alleged. It falls to be determined according to the meaning which an ordinary reasonable reader of that material would place upon it. If the answer is that it is not so capable, then the pleading alleging the material to be defamatory is liable to be struck out as disclosing no cause of action."
It is, of course, a question of discretion which should not be undertaken lightly but as His Honour said "with great caution", however of course, if I did take the view that the defamatory meaning was incapable of arising from any of the imputations pleaded then that imputation should be struck out.
Jerrard JA, who wrote the leading judgment in the case of Favell v Queensland Newspapers, quoted in [13] of his reasons from the relevant test set out by the New South Wales Supreme Court in Farquhar v Bottom [1980] 2 NSWLR 380 at 385-386 and I respectfully adopt a similar approach.
A matter that arose in argument about which there was some disagreement was the question of whether or not a plaintiff can, or can ordinarily, rely on the exact words used by the publication as constituting an imputation which arises in the natural and ordinary meaning. Justice Mason, President of the Court of Appeal, said in Greek Herald Pty Ltd v Nikolopoulos [2002] NSWCA 41, 54 NSWLR 165 at paragraph 20, page 172:
"The pleaded imputation is itself a statement extrapolating something from the matter complained of. The statement will seldom be found in the very words used (sometimes the matter complained of is only a picture)."
On the other hand, as the plaintiff/respondent to the application submitted, that is not always the case, giving the example of an allegation found in a billboard referring to the government getting tough on "corrupt Judges", was itself defamatory without any further linguistic refinement or elaboration.
It is as well in this context to keep in mind the words of Justice Clarke in John Fairfax and Son Limited v Foord where His Honour said at 726:
"If the complaint is that the imputation as pleaded lacks clarity before the word 'corrupt' is ambiguous then that deficiency flows naturally from the material published.
It was the defendant who used the word 'corrupt' and, provided that the respondent in an unqualified manner can satisfy the test on identification and there is no issue about that in these proceedings, then there can be no argument but that the poster is describing the respondent as a corrupt Judge."
That passage was referred to with approval by His Honour Chief Justice Gleeson, then Chief Justice of New South Wales, in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135. As His Honour there says:
"... the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory manner."
Sometimes it is necessary to read between the lines to find the defamatory imputation. Sometimes the defamation is quite explicit. It appears to me that this article is more in the category of explicit defamatory material rather than one from which a defamatory imputation might be teased out.
Justice Hunt in Monte v Mirror Newspapers Limited [1979] 2 NSWLR 663 at 678 says that:
"... it is the meaning alleged to have been conveyed by the words, rather than the words themselves which it is important to have precisely defined in the imputation complained of..."
However it must be recognised that sometimes the meaning alleged to be conveyed by the words is found in the words themselves.
It is unnecessary merely to go to a dictionary or a thesaurus and find another way of expressing precisely what has been expressed in the words if those words themselves clearly convey the defamatory imputation. In my view each of the defamatory imputations in this case falls into that category. Let me give some examples.
The defendant complains about the imputation found in paragraph (b), for example, that
"the plaintiff, as Director-General of the Department of Family Services and Aboriginal and Islander Affairs, was responsible for a gross abdication of the Department's duty to safeguard children".
I would have thought it beyond argument that an allegation that the Director-General of such a department was responsible for a gross abdication of the department's duty to safeguard children was clearly defamatory. It ill behoves the defendants to complain of the use of the words 'gross abdication' since they are the very words used by the defendant in the article.
A similar complaint is made about the use of the words "dire consequences" taken from the article. Those are ordinary English words, having an ordinary, indeed almost clichéd, meaning and it does not need to be reframed to turn it into an imputation.
A further complaint is made that the imputations are repetitive and are insufficiently different, each to give rise to a separate course of action, however I should say I agree with the decision of Justice McMurdo in Magub v Hinchcliffe [2004] QSC 4, when His Honour said, at paragraph 17:
"that alternative imputations need not be 'true alternatives' in the sense that acceptance of one imputation requires the rejection of the other."
There may, as His Honour said, be some overlapping in the sense described by Williams JA in Cashman, although there must still be some difference in substance between the respective imputations, otherwise the pleading would offend Rule 149(1)(a) which requires a pleading to be as brief as the nature of the case permits. However, when one goes to each of the imputations, although they cover a broadly similar subject matter, each of them is specifically different and refers to a different part of the article.
There is a difference in substance, in my view, between each of the imputations. It follows that the imputations pleaded are each capable of conveying the pleaded meaning, are each capable of conveying a defamatory meaning, and are not duplicitous. Any imprecision in the imputations finds its basis in the words used and the sentiments expressed in the article and is not such as to be embarrassing for the defendant to plead to and accordingly I refuse the application.
...
HER HONOUR: I order that the defendants pay the plaintiffs costs of and incidental to the application to be assessed.
...
HER HONOUR: I direct that the defendants file and serve any amended defence within 14 days of today.
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HER HONOUR: I direct that the plaintiff file and serve any further amended reply within seven days after the receipt of the defendants amended defence.
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HER HONOUR: I direct the parties to deliver to my Chambers by 4.00 p.m. on this Friday, 16 July, a mediation order setting out the particulars of a mediation order. If that is not able to be done, then I will bring the matter on for further mention to direct the terms in which a mediation should take place.
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HER HONOUR: I give liberty to apply.
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