Aquashelf Sales & Rentals Pty Ltd & Ors v CSR Ltd & Ors COC Pty Ltd & Ors v CSR Ltd
[1998] FCA 1752
•22 DECEMBER 1998
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 149 of 1995
BETWEEN:
AQUASHELF SALES AND RENTALS PTY LTD
(ACN 009 077 267)
FIRST APPLICANTCEIL COMFORT HOME INSULATION PTY LTD
(ACN 003 239 763)
SECOND APPLICANTCOC PTY LTD
(ACN 058 817 771)
THIRD APPLICANTMORCANNA HOLDINGS PTY LTD
(ACN 009 450 597)
FOURTH APPLICANTNATURAL FIBRE PTY LTD
(ACN 0055 452 910)
FIFTH APPLICANTAND:
CSR LTD
(ACN 000 001 276)
FIRST RESPONDENTFIBREGLASS AND ROCKWOOL INSULATION MANUFACTURERS' ASSOCIATION OF AUSTRALIA INCORPORATED
SECOND RESPONDENTCARTER HOLT HARVEY INSULATION AUSTRALIA PTY LTD (FORMERLY INSULCO PTY LTD)
(ACN 001 175 355)
THIRD RESPONDENTKEVIN HERBERT
FOURTH RESPONDENTINSULATION INFORMATION AUSTRALIA PTY LTD
(ACN 055 295 899)
FIFTH RESPONDENTDAFAN HOLDINGS PTY LTD
(ACN 002 659 010)
SIXTH RESPONDENTGEMHOST PTY LTD
(ACN 003 691 432)
SEVENTH RESPONDENT
WAG 117 OF 1997
BETWEEN
COC PTY LTD
(ACN 058 817 771)
FIRST APPLICANTMORCANNA HOLDINGS PTY LTD
(ACN 009 450 597)
SECOND APPLICANTCEIL COMFORT HOME INSULATION PTY LTD
(ACN 003 239 763)
THIRD APPLICANTTHERMO-SEAL INSULATION PTY LTD
(ACN 000 864 068)
FOURTH APPLICANTNATURAL FIBRE PTY LTD
(ACN 055 452 910)AND:
CSR LTD
(ACN 000 001 276)
FIRST RESPONDENTFIBREGLASS AND ROCKWOOL INSULATION MANUFACTURERS’ ASSOCIATION OF AUSTRALIA INCORPORATED
SECOND RESPONDENTCARTER HOLT HARVEY INSULATION PTY LTD
THIRD RESPONDENTACI AUSTRALIA LIMITED
(ACN 004 093 092)
FOURTH RESPONDENTGERADO HOLDINGS PTY LTD
(ACN 009 089 472)
FIFTH RESPONDENTJUDGE:
TAMBERLIN J
DATE OF ORDER:
22 DECEMBER 1998
WHERE MADE:
SYDNEY
HEARD IN PERTH
THE COURT ORDERS THAT:
The strike out applications filed on 23 November 1998 be granted.
Paragraphs 40.1 to 43.2 inclusive of the Amended pleadings in the 1995 proceedings are struck out.
Paragraphs 43.1 to 44.2 in the Amended Statement of Claim relating to the 1997 proceedings are struck out.
The Notice of Motion to Review the Exercise of Power by Judicial Registrar is dismissed.
The applicants have leave to file and serve Amended Statements of Claim in both matters within twenty-eight days from the date of these reasons.
The applicants in each case are to pay the costs of the respondents on the Strike Out Applications.
The respondents are to pay costs incurred by the applicant in relation to the Notice to Review which were thrown away as a consequence of the respondents not pursuing the grounds raised in the Motion to Review.
Both parties have leave to proceed forthwith to taxation and recover the costs awarded under these orders.
Liberty to apply on seven days notice is reserved to either party.
Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules
IN THE FEDERAL COURT OF AUSTRALIA
WESTERN AUSTRALIA DISTRICT REGISTRY
WAG 149 of 1995
BETWEEN:
AQUASHELF SALES AND RENTALS PTY LTD
(ACN 009 077 267)
FIRST APPLICANTCEIL COMFORT HOME INSULATION PTY LTD
(ACN 003 239 763)
SECOND APPLICANTCOC PTY LTD
(ACN 058 817 771)
THIRD APPLICANTMORCANNA HOLDINGS PTY LTD
(ACN 009 450 597)
FOURTH APPLICANTNATURAL FIBRE PTY LTD
(ACN 0055 452 910)
FIFTH APPLICANTAND:
CSR LTD
(ACN 000 001 276)
FIRST RESPONDENTFIBREGLASS AND ROCKWOOL INSULATION MANUFACTURERS' ASSOCIATION OF AUSTRALIA INCORPORATED
SECOND RESPONDENTCARTER HOLT HARVEY INSULATION AUSTRALIA PTY LTD
(FORMERLY INSULCO PTY LTD)
(ACN 001 175 355)
THIRD RESPONDENTKEVIN HERBERT
FOURTH RESPONDENTINSULATION INFORMATION AUSTRALIA PTY LTD
(ACN 055 295 899)
FIFTH RESPONDENTDAFAN HOLDINGS PTY LTD
(ACN 002 659 010)
SIXTH RESPONDENTGEMHOST PTY LTD
(ACN 003 691 432)
SEVENTH RESPONDENT
WAG 117 OF 1997 BETWEEN
COC PTY LTD
(ACN 058 817 771)
FIRST APPLICANTMORCANNA HOLDINGS PTY LTD
(ACN 009 450 597)
SECOND APPLICANTCEIL COMFORT HOME INSULATION PTY LTD
(ACN 003 239 763)
THIRD APPLICANTTHERMO-SEAL INSULATION PTY LTD
(ACN 000 864 068)
FOURTH APPLICANTNATURAL FIBRE PTY LTD
(ACN 055 452 910)AND:
CSR LTD
(ACN 000 001 276)
FIRST RESPONDENTFIBREGLASS AND ROCKWOOL INSULATION MANUFACTURERS’ ASSOCIATION OF AUSTRALIA INCORPORATED
SECOND RESPONDENTCARTER HOLT HARVEY INSULATION PTY LTD
THIRD RESPONDENTACI AUSTRALIA LIMITED
(ACN 004 093 092)
FOURTH RESPONDENTGERADO HOLDINGS PTY LTD
(ACN 009 089 472)
FIFTH RESPONDENT
JUDGE:
TAMBERLIN J
DATE:
22 DECEMBER 1998
PLACE:
HEARD IN PERTH
DELIVERED IN SYDNEY
REASONS FOR JUDGMENT
Before me are two Notices of Motion to strike out a number of paragraphs in two Amended Statements of Claim filed by the applicants on 30 October 1998, pursuant to leave granted on 2 October 1998 to amend the pleadings by a Judicial Registrar of the Court.
The paragraphs of the amended pleadings under challenge allege defamatory conduct by the defendants in relation to the manufacture, marketing and distribution of fibreglass and rockwool insulation products (“the products”). The proceedings have a long and complex history, which is fully set out in the reasons of Registrar Farrell of 2 October 1998. It is, therefore, not necessary to repeat the history here.
There are two sets of proceedings presently on foot which, as amended, raise allegations of defamation. In the first proceeding, No WAG 149 of 1995, there are five applicants and seven respondents. In the second proceeding, No WAG 117 of 1997, there are five applicants but there are only five respondents. The challenges are mounted by the second to seventh respondents in No WAG 149 of 1995 proceedings and the second and third respondents in WAG 117 of 1997 proceedings. Mr G Reynolds SC appeared with Mr G Dean for the above mentioned respondents in both matters. Because of the substantial similarity between the questions raised in both matters, and the inclusion of common parties, it is convenient to entertain submissions on the strike-out application in relation to both matters.
The amendments include allegations of defamation in relation to the first respondent (“CSR”), however, no application has been made by that company to challenge the amendments to the pleadings concerning the allegations of defamation against it. It should also be noted that in No WAG 149 of 1995 proceedings, the fourth respondent (Kevin Herbert) has settled his claims.
As mentioned at the outset, the decision of Judicial Registrar Farrell, which permitted amendments to the pleadings, was given on 2 October 1998. Shortly afterwards, on 22 October 1998, the second to seventh respondents in the No WAG 149 of 1995 proceeding and the second and third respondents in No WAG 117 of 1997 proceeding filed a notice of motion seeking “review” by a Judge of this Court of the decision of the Registrar. The “review” was sought under s 18AC of the Federal Court Act 1976 (Cth) and O 79 r 2(2) of the Federal Court Rules (“FCR”).
Section 18AC provides:
“s 18AC (1) A party to proceedings may apply to the Court to review a Judicial Registrar’s exercise in the proceedings of a power delegated under section
18AB. An application must be made within the period prescribed by the Rules of Court or such further period as is allowed in accordance with the Rules.(2) On an application under subsection (1) or of its own motion, the Court may review a Judicial Registrar’s exercise of a power so delegated. The Court may make whatever order it considers appropriate in relation to the matter in relation to which the power was exercised.
(3) On the application of a party or of its own motion, the Court may refer to a Full Court of the Court an application under subsection (1).”
The power exercised by the Registrar in the present case was a delegated power.
On 30 October 1998, notwithstanding that an application to review had been filed, the applicants proceeded to file the two amended Statements of Claim.
When the motions to review came on for hearing before me on 23 November 1998, Counsel for the respondents proposed that the more convenient course would be to file a Notice of Motion in each proceeding seeking to strike out certain parts of the Amended Statements of Claim filed on 23 November 1998. This course was opposed by Counsel for the applicants, Mr Grace QC, who appeared with Mr Donovan, for the applicants. Apart from the question of costs, no prejudice was pointed to by the applicants if the matter were permitted to proceed by way of a strike-out application.
However, Mr Grace foreshadowed that his clients had incurred substantial extra and unnecessary costs as a consequence of having to prepare a case covering many more issues than those which were ultimately advanced at the hearing before me. This situation came about because it was not until Friday 20 November 1998 that the respondents filed brief submissions, which on their face substantially reduced the number of issues for determination, while at the same time reserving their options to argue on a broader front. No previous indication had been made of the intention to press any issues in dispute. In these circumstances, I decided that the question of costs on the strike out motions should be reserved in order that the applicants’ claim for costs be properly considered. After the hearing, additional submissions were received by me on the question of costs and I will deal with these later in the reasons.
After hearing submissions in relation to the filing of the strike-out application on the more limited basis, I considered that it was both appropriate and convenient, subject to the question of costs, to permit the respondents to discontinue the motions to review dated 22 October 1989 if the strike-out application was pursued. In the interests of resolving the substantial questions raised, I granted leave to the respondents to file and serve the strike-out application in each matter and make it returnable instanter. Senior Counsel for the respondents decided not to press the review motion. Accordingly, that application is dismissed. As a consequence, the issue before me turns on whether the amended pleadings in defamation raised against the respondents, other than CSR, should be struck out.
It should be noted that the Notices of Motion to review, as filed in each matter, were cast in the widest terms and canvassed virtually all the issues raised in the submissions which were made to the Registrar. The Strike-Out Motion in matter WAG 149 of 1995, which was filed on 23 November 1998, claims more succinctly that:
“Paragraphs 40.1 to 43.2 of the substituted statement of claim filed on 30 October 1998 be struck out.”
The Strike-Out Motion in WAG 117 of 1997 is drafted in similar terms.
The Pleadings
The basic challenge to the defamation allegations in each matter can be decided, for practical purposes, by considering a particular example of the pleadings.
Although the pleadings are lengthy and involve a great deal of cross-reference, the issues are thrown up by the following paragraphs in the Amended Statement of Claim in WAG 149 of 1995:
“12.1On 28 December 1992 there was a broadcast throughout Australia on the Channel 9 programme “A Current Affair” and during the broadcast the second respondent by its agent the fourth respondent made on air express statements to the following effect:
12.1.1If you loosen it (cellulose insulation) up …have it in the way that it actually is installed when its blown into your roof … if you put a match to it it burns like a grass fire.
12.1.2In a compressed form anything won’t burn. If you compress … if anyone gets a bunch of newspaper and compresses it in their hand and puts a flame to it, it won’t burn.
…
12.2The following express representations referred to in paragraph 12.1 above were false in that:
12.2.1as to sub-paragraph 12.1.1 above, cellulose does not burn like a grass fire when a match is put to it in the form in which it is installed. On the contrary, cellulose insulation is a flame retardant product which will self extinguish and because of the fire retardant properties of the product it will retard the spread of fire;
12.2.2as to sub-paragraph 12.1.2 above, cellulose insulation does not burn when it has been put in a hand because the product is a flame retardant product. When an identical heat source is applied to cellulose insulation in a roof space the cellulose will perform in the same way as it does when it is in a hand. The product will ignite, there will be no spread of flame or only a limited spread of flame and the product will self-extinguish;
12.3.12.3.1 The express statements referred to in sub-paragraphs 12.1.1, 12.1.2, 12.1.3. 12.1.4, and 12.1.5 and/or 12.1.6 above incorporated implied statements to the effect that cellulose insulation manufactured with fire retardant products and installed in a ceiling in an Australian domestic roof space:
(a)is unsafe, and
(b)is unsuitable to be installed above the ceiling in an Australian domestic roof space
by reason that:
(i)it presents a significant fire danger or, alternatively,
(ii)it presents a not insubstantial fire danger;
…
40.1Further or alternatively, the said images and statements made and published by or on behalf of the second respondent pleaded in paragraphs 12.1.1-6; 13.1, 13.1.1-31 & 32, 15.1.1-7; 16.1, 16.1.1-7 & 9-11; 17.1, 17.1.1-5, 11-17 & 19; 18.1.1-2, 4-5, 8, 10, 15, 22 & 27; 19.1.1-10 & 13 and 25.1.1 & 5 in each instance:
(a)conveyed to the consumer public identified in paragraphs 1-5 above, by reason of the extrinsic facts pleaded in paragraphs 1.4, 2.4, 3.7, 4.3 and 5.5 above, imputations defamatory of each of the applicants in the conduct of their respective cellulose insulation businesses as manufacturers and installers of cellulose insulation in the states where those applicants carried on their businesses and acquired reputations as pleaded in paragraphs 1-5 above;
(b)meant and were understood to mean by the consumer public identified in paragraphs 1-5 above, by virtue of the extrinsic facts pleaded in paragraphs 1.4, 2.4, 3.7, 4.3 and 5.5 above, as follows:
(i)as to the statements referred to in paragraphs 12.1.1-6, the imputations pleaded in paragraphs 12.3.1,12.3.2 & 12.3.3;
(ii)as to the images referred to in paragraph 13.1 and the statements referred to in paragraphs 13.1.1-31 & 32, the imputations pleaded in paragraphs 13.3.1, 13.3.2 & 13.3.3;
(iii)as to the images referred to in paragraph 16.1 and the statements referred to in paragraphs 16.1.1-7 & 9-11, the imputations pleaded in paragraphs 16.3.1 & 16.3.2;
(iv)as to the images referred to in paragraph 17.1 and the statements referred to in paragraphs 17.1.1-5, 11-17 & 19, the imputations pleaded in paragraphs 17.3.1, 17.3.2 & 17.3.7;
(v)as to the statements referred to in paragraphs 18.1.1-2, 4-5, 8, 10, 15, 22 & 27, the imputations pleaded in paragraphs 18.3.1, 18.3.2 & 18.3.7;
(vi)as to the statements referred to in paragraphs 19.1.1-10 & 13, the imputations pleaded in paragraphs 19.3.1, 19.3.2 & 19.3.3;
(vii)as to the statements referred to in paragraphs 25.1.1 & 5, the imputations pleaded in paragraphs 25.3.1 & 25.3.2
40.2In consequence of the matters pleaded in paragraph 40.1 above the reputation of each of the applicants in the conduct of their respective businesses has been seriously damaged.
PARTICULARS OF LOSS AND DAMAGE
The applicants repeat the particulars of loss and damage referred to in paragraph 31 above.”
Applicants’ submissions
The applicants submit that the challenged paragraphs should be struck out because they suffer from three basic deficiencies. The first is that the paragraphs do not mention any of the applicants by name in setting out the alleged imputation. The second is that the paragraphs do not specify any condition or act of any one or more of the applicants which is complained of but simply focus on the products which are claimed to be unsafe or deficient. The third deficiency is said to be that the paragraphs do not set out the essential defamatory sting in that they do not allege any defamatory act or condition of any specified applicants. In this respect, it is said that the allegation of defamation is not in accordance with authority nor accepted precedence of pleading in defamation proceedings.
In reply, the respondents contend that the pleadings, when read as a whole, and after tracing through all cross-references sufficiently allege the necessary ingredients of defamation.
Strike-out application
The courts have emphasised the need for great caution in the exercise of the discretionary power to strike out proceedings at the pleading stage. The requirements for a successful strike out application are well settled and were restated by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125 at 129-130 in these terms:
“… these cases uniformly adhere to the view that the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action – if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal – is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’ …
But once it appears that there is a real question to be determined whether of fact or law and that the rights of the paries depend upon it, then it is not competent for the court to dismiss the action as frivolous and vexatious and an abuse of process…. in my opinion great care must be exercised to ensure that under the guise of achieving expeditious finality a plaintiff is not improperly deprived of his opportunity for the trial of his case by the appointed tribunal.”
In my view, the amended pleadings, when one takes account of the cross-references, do expressly identify the applicants as persons in respect of whom the alleged defamatory statements are made. They are nominated and described in paragraphs 1 through 7 of the Amended Statement of Claim and the nature of their activities are set out. Paragraphs 40 through 43 inclusive alleged that the reputation of each of the applicants, in the conduct of their respective businesses, has been seriously damaged. Accordingly, I do not accept the first basis on which the respondents challenge the Statement of Claim as being deficient.
The respondents’ second and third submissions have more substance.
In the context of defamation, the expression “imputation” is an act or condition that is asserted of or attributed to a person who claims to be defamed: see Hall-Gibbs Mercantile Agency Limited v Dun (1910) 12 CLR 84 at 91.
The respondents submit that the challenged paragraphs, read with the cross-references, do not spell out any flawed conduct or condition concerning the applicants. Rather, they make assertions concerning the nature and quality of the products. By way of illustration from the pleadings quoted above, it can be seen that paragraph 12 alleges that in a television broadcast, the second respondent made a false statement to the effect that the cellulose insulation burns like a grass fire if loosened up in the roof. It is then alleged in paragraph 40 that the images and statements conveyed to the public, imputations defamatory of each of the applicants in the conduct of their businesses as manufacturers and installers of cellulose insulation in those States where the applicants carried on business.
The deficiency in the pleadings, as submitted by the respondents, is that the applicants do not particularise the specific imputations in such a way as to draw out the act or condition said to be attributed to the applicants by the publications in question. To put it another way, the applicants claim that the publications convey defamatory imputations but that they do not inform the respondents of the particular acts, omissions, conduct or fault, which is said to be attributable to the respondents. The assertion that the claims are false, is simply left in the air, and the respondents say that they are not told what is alleged to be conveyed by the language and images in the published material which makes the publication defamatory of them. The only direct imputation is that the respondents made and installed products and that these products were deficient and unsafe. There is, for example, no allegation as to the way in which the material would be understood as defamatory of the respondents by a reasonable person viewing the published material.
It is said that in some way the above claims carry a defamatory imputation. Whilst the allegations focus on and level criticism at the goods in specific respects, they do not detail the behaviour, conduct or condition of the manufacturers and installers which give rise to the alleged defamation. In considering the present case it is important to keep in mind the difference between disparagement of a person and disparagement of goods. This distinction is drawn by Griffith CJ in Hall-Gibbs (supra at 93) as follows:
“There is, in my opinion, an essential distinction between the disparagement of a man’s title to property, by which he may be injuriously affected in his own efforts to dispose of it, and the disparagement of a man with regard to his own conduct in respect of his property. In both cases the man and the property are elements of the disparagement, but the nature of the wrong is quite different.”
In the present case, the Court is concerned with defamation in the sense of disparagement of a person, which is the same sense as used by Griffith CJ.
In defamation proceedings there is a particular need for precision and specificity. In the recent decision of the High Court in Chakravarti v Advertiser Newspapers Ltd (1998) 72 ALJR 1085, the Court explained the need for pleadings in defamation to be sufficiently specific to prevent any party being taken by surprise at the trail and to avoid false issues being raised, which could embarrass the fair trial of the action: see 1088-9, 1097-1098 and 1118-1119. An example of a properly pleaded imputation was referred to by Kirby J at 1120 where his Honour considered that the pleading sufficiently summarised the “sting of the allegation”. The paragraph to which his Honour referred alleged that:
“(a) ’the plaintiff was involved in criminal or civil misconduct, whilst an executive of Beneficial Finance, in respect of loans from Beneficial Finance to himself.’”
In the present case before me it is the essential “sting” of the allegation which is missing. There is no sufficient allegation of any specific misconduct or default made against specific applicants.
A suggestion was made by Counsel for the applicants that any inadequacy in the pleading might be cured after discovery when further particulars could be given. It is well settled law that particulars cannot rectify a defective pleading. The purpose of pleading is to inform the parties of the case which they have to meet so as to enable them to take steps to deal with it at the hearing: see Charlie Carter Pty Ltd v The Shop, Distributive and Allied Employees’ Association of Western Australia (1987) 13 FCR 413 at 416-418.
Some limited support for the applicants’ submissions in the present case can be found in the observations of Mason J in Sungravure Pty Limited v Middle East Airlines Airliban SAL (1974) 134 CLR 1 at 23. Although that decision concerned the construction of s 5 of the Defamation Act 1958 (NSW), the remarks of his Honour are framed generally. The case concerned statements, in a work of fiction, relating to the hijacking of the fleet of an airline called Middle East Airlines, which it was said by the plaintiff conveyed an innuendo that potential air travellers in the plaintiff’s aircraft faced a serious risk of hijacking by Israelis. This innuendo was not allowed to go the jury. The Court of Appeal, by majority, reversed the decision and ordered a new trial. The decision of the Court of Appeal was, in turn, upheld by the High Court by a majority. In the High Court judgment, at 23, Mason J said:
Not every statement likely to injure a person in his profession or trade is a statement about him. That the statement must be a statement about him to qualify as defamatory matter is in itself a limitation on the category of imputations made actionable by the statute. Thus, for newspaper to observe in the course of a published report on the performance of a particular model of a car that it was unsafe would be to make a statement likely to injure the distributors of that car in their business; yet it would not be a statement about the distributors and would therefore not defame them. Conversely, it could well be regarded as a statement about the manufacturer of the car, viz. that it produced an unsafe product, likely to injure it in its business and therefore actionable by it.
In the instance given the statement about the manufacturer is one which attributes to him an unfavourable character as a manufacturer, a character which is the consequence of his own conduct and activities, and is therefore damaging to his reputation.”
In considering the effect of Sungravure (supra) it is important to bear in mind that under s 5 of the New South Wales Act it was sufficient to prove an imputation concerning a person as a result of which that person was likely to be injured in his profession or trade. To succeed under that section, it was not necessary to establish that the airline was disparaged in some way. The majority (McTiernan ACJ, Gibbs and Mason JJ) considered that a reasonable person might understand the material to indicate that, although Middle East had not acted wrongly in any sense, its planes were nevertheless unsafe because of the possibility of hijacking. Stephen J dissented because he considered that the pleading did not disparage the plaintiff. In his Honour’s view this was a misfortune which might befall any airline company without any blame on its part. Therefore, his Honour considered that the claim should necessarily have been dismissed by the trial judge as not being defamatory.
Counsel for the respondents referred me to a number of precedents set out in Gatley On Libel and Slander 1998, 9th edn at 926-932. Those pleading formulations were referred to simply because they were recognised forms of pleadings in defamation. They do not bear, of course, directly on the present issues. However, in all these pleadings, the allegations assign particular meanings to the publications which specifically disparage the conduct or condition of the plaintiff.
There are a number of significant respects in which the challenged paragraphs, read with the cross-references, fail to inform the respondents as to the case which they must meet in defamation at the hearing. The first is that there is no specification as to whether the defamatory imputations are said to arise against the applicants in their role as manufacturers or installers of the products or as both manufacturers and installers. This distinction may not be lacking in significance in view of the observations of Mason J in Sungravure (supra). Second, it is not specified what the conduct in question was. Third, it is not specified whether the conduct said to have been attributed to the applicants was deliberate, reckless, negligent or simply indifferent. If these matters are precisely pleaded and particularised then the respondents should be in a position to understand the issues raised and prepare their defence.
Presently, it seems to me that the respondents are called upon to engage in a large degree of speculation as to the specific case which they may have to meet at the hearing. Moreover, it is only when the issues are precisely defined that the respondents will be able to formulate the defences which they will need to raise. In cases of defamation in particular, as indicated in Chakravarti (supra) where delicate nuances of meaning can be critical, it is especially important that the pleadings be clear and precise having regard to the broad range of available defences. The framing of a defence depends on the particular way in which it is alleged that the published material conveyed disparagement or injures the reputation or business of the persons defamed.
Accordingly, for the above reasons, I am satisfied that paragraphs challenged in the Strike Out Notice of Motion to do not raise an arguable case on the pleadings because a fundamental ingredient in the defamation complained of is lacking. As a consequence, the pleading does not disclose the case which the respondents have to meet so as to enable a specific defence to be raised and the issues to be fully defined for the hearing. In that respect the pleading is embarrassing and vexatious in relation to the defamation allegations. In addition, because the pleadings do not set out the essential sting of the defamation, they do not, in my view, raise an arguable case within the meaning of the General Steel test and, accordingly, should be struck out for this reason. The respondents should not have to guess the specific allegations underlying the general reference to the alleged defamatory material in the context of the applicants on the motion being manufactures and installers of the products.
Therefore, I order that paragraphs 40.1 to 43.2 inclusive in WAG 149 of 1995 proceedings be struck out and that challenged paragraphs 43.1 to 44.2 in WAG 117 of 1997 proceedings be struck out. However, I grant leave to the applicants to replead the matter, provided that such pleadings be filed and served within twenty-eight days from today’s date.
The Notice of Motion to review the Registrar’s decision should be dismissed.
Costs
The Notice of Motion filed by the respondents on 22 October 1998 sought a review of the Registrar’s decision. It sought to set aside his decision, which permitted the proposed amendments to the Statement of Claim. The grounds for the application were set out in a series of objections and submissions in the hearing before the Registrar. These were far reaching and extended well beyond the matters argued at the hearing before me on the strike out application. Leave was given to file the strike out motion in Court in order that the substance of the respondents’ challenge could be considered.
The applicants contend that because of the abandonment at a late stage of the numerous issues raised by the respondents on the Application for Review, a substantial amount of unnecessary costs were incurred in the preparation of the matter. While the Court welcomes the selection process and the narrowing of issues to the essential minimum, the lateness of the notification in this case, in my view, clearly led to the incurring of substantial and unnecessary expense on the part of the applicants. It was not reasonable for the respondents to give such late notification of their trimmed case. The respondents, in effect, sought to keep open their position as to the grounds of review to be pressed right up to the hearing. Whilst that is their privilege, in my view, they should pay the wasted costs occasioned by such a course.
In the ultimate outcome on the challenge to the statements of claim, the respondents were successful and should have their costs. However, on the Motion to Review, the applicants should have all costs incurred by way of preparation which were thrown away as a result of the abandonment of the grounds not pressed in the Motion to Review, except for costs incurred in the preparation, which were effectively directed to the issues argued on the strike out application.
The orders of the Court, therefore, are:
The strike out applications filed on 23 November 1998 are granted.
Paragraphs 40.1 to 43.2 inclusive of the Amended Pleadings in WAG 149 of 1995 of the proceedings are struck out.
Paragraphs 43.1 to 44.2 in the Amended Statement of Claim relating to the 1998 proceedings are struck out.
The Notice of Motion to Review the Exercise of Power by Judicial Registrar is dismissed.
The applicants have leave to file and serve Amended Statements of Claim in both matters within twenty-eight days from the date of these reasons.
The applicants in each case are to pay the costs of the respondents of the Strike Out Applications.
The respondents are to pay costs incurred by the applicant in relation to the Notice to Review which were thrown away as a consequence of the respondents not pursuing the grounds raised in the Motion to Review.
Both parties have leave to proceed forthwith to taxation and recover the costs awarded under these orders.
Liberty to apply on seven days notice is reserved to either party.
I certify that this and the preceding thirteen (13) pages are a true copy of the Reasons for Judgment herein of the Honourable Justice Tamberlin
Associate:
Dated: 24 December 1998
Counsel for the Applicants on the strike out motion: Mr D Grace QC
Mr P DonovanSolicitor for the Applicant on the strike out motion: Messrs Bennet Counsel for the Respondents on the strike out motion: Mr G Reynolds SC Mr G Dean
Solicitor for the Respondent on the strike out motion: McCallum Donovan Sweeney Date of Hearing: 23 November 1998 Date of last submissions:
17 December 1998
Date of Judgment: 24 December 1998
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