Baker v Mutton
[2014] VSCA 302
•21 November 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2014 0136
| DR CHRIS BAKER |
| First Applicant |
| – and – |
| C.C.D SERVICES PTY LTD (ACN 078 963 738) (TRADING AS MELBOURNE OCCUPATIONAL MEDICAL PRACTICE) |
| Second Applicant |
| v |
| DR PHILIP MUTTON |
| Respondent |
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| JUDGES: | NETTLE JA and SLOSS AJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 21 November 2014 |
| DATE OF JUDGMENT: | 21 November 2014 |
| MEDIUM NEUTRAL CITATION: | [2014] VSCA 302 |
| JUDGMENT APPEALED FROM: | Mutton v Baker & Anor [2013] VCC 1871 (Ruling) (Judge O’Neill) |
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PRACTICE AND PROCEDURE – Appeal from ruling that Respondent be granted leave to file a Further Amended State of Claim – Whether failure to properly plead elements of alleged cause of action of injurious falsehood – Whether failure to sufficiently describe the conduct complained of – Compliance with requirements of the County Court Civil Procedure Rules 2008 concerning pleadings – Collins v Jones [1955] 1 QB 561 applied.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr S K Wilson QC with Mr M A Strang | Joy Popovska & Associates |
| For the Respondent | Dr G Boas | Madgwicks |
NETTLE JA
SLOSS AJA:
This is an application for leave to appeal from orders of a judge of the County Court granting leave to the respondent to file a further amended statement of claim in which he alleges causes of action of injurious falsehood.
The matter has a lengthy history and has previously come to this Court by way of an unsuccessful application by the respondent for leave to appeal from the judge's dismissal of an alternative cause of action of malicious prosecution.
The applicant’s complaints about the further amended statement of claim are extensive but, in substance, can be stated briefly. The first concerns paragraph 16, which is as follows:
16.Despite the Plaintiff seeking information from the First and/or Second Defendant/s enabling him to reconcile accounts with them, in or around early August 2010 the First and/or Second Defendant/s made a false complaint to Detective Senior Constable Damien Wigfield (‘Wigfield’) and/or another officer of Victoria Police that the Plaintiff had stolen money from them (‘the complaint’):
(a)In or around early August, the First and/or Second Defendant/s told Wigfield and/or another officer of Victoria Police that the Plaintiff had stolen money from them.
(b)Around that time, the First and/or Second Defendant/s gave to Wigfield and/or another officer of Victoria Police documentation in relation to the alleged theft, including a copy of a letter dated 2 August 2010 and outstanding invoices.[1]
[1]Underlining in original, denoting amendments made to the Amended Statement of Claim dated 7 May 2014.
The problem here is that paragraph 16 does not allege the precise words of the statement which the respondent is said to have made to police and thus offends the principle applicable to pleadings of libel and slander generally, and so also to pleadings of injurious falsehood, that the very words complained of must be set out.[2] The complaint is well founded.
[2]Collins v Jones [1955] 1 QB 564, 571–2; Gutsole v Mathers (1863) 1 M & W 495, 502–3; 15 ER 530; cf Rainy v Bravo (1872) Moo PC NS 35 17 ER 427; Gatley on Libel and Slander (12th ed) [28.39]; Bullen & Leake & Jacobs, Precedents of Pleading (17th ed) [38–06].
The second complaint concerns paragraph 17, which is as follows:
17.The complaint was that the Plaintiff had stolen approximately $40,000 from the First Defendant and/or Second Defendant, by:
(a)Cancelling the EFT authority in favour of the First Defendant;
(b)Receiving 100% of the fee for Workcover clients plus 70% of the same fee from the Defendants after 23 June 2010; and
(c)Doing so deliberately to the financial detriment of the Defendants and the financial benefit of the Plaintiff.
The complaint here is that, as pleaded, it is not clear whether the statement alleged in paragraph 17 is alleged to be a separate and independent statement founding a cause of action or part of or exegetical of the statement alleged in paragraph 16, or in the nature of an imputation derived from the statement alleged in paragraph 16. In our view, that complaint is well founded.
The third complaint concerns paragraph 18, which is as follows:
18.The First and/or Second Defendant/s made this complaint before they had equipped the Plaintiff with sufficient information to enable him to reconcile the accounts and repay any moneys due, and the Plaintiff relies on the particulars set out in paragraphs [sic] 15 above.
Counsel for the applicant contended that paragraph 18 is embarrassing in form because one cannot say whether the statement to which it refers is alleged to be a separate and independent statement founding a cause of action or part of or particulars of or an imputation to be derived from the statement(s) alleged in paragraph 16 or 17.
In our view that complaint is also well founded, and ultimately counsel for the respondent in effect conceded as much. He explained that what was intended to be conveyed by paragraphs 16, 17 and 18 was that the statements referred to in each paragraph were all parts of the one statement, or perhaps more accurately, different forms of expression of the one statement.
Evidently, what needs to be done is for paragraphs 16, 17 and 18 to be merged and refined so as properly to allege or to ‘set out the words with reasonable certainty’ in which it is said to have been spoken,[3] the person by whom it was spoken, the person or persons to whom it was spoken and when and where and in what circumstances it was spoken.
[3]Collins v Jones [1955] 1 QB 564, 571–2.
The next complaint concerns paragraphs 22, 24.1 and 25.3, which are as follows:
22.In the investigation of the complaint, in or around early August 2010 Detective Wigfield and/or another police officer visited the Plaintiff’s new practice at 24 Collins Street, Melbourne seeking the Plaintiff. The police spoke to the practice secretary, Carolyn Thomson, who stated that the Plaintiff was not present, to which Detective Wigfield and/or another police officer told Ms Thomson that if the Plaintiff did not make an arrangement to come and see the police down at the station the police would be back to take him away. At the times these comments were made there were patients present in the room.
…
24.1The First and/or Second Defendant/s made the complaint set out in paragraphs 16 and 17 to Victoria Police. In making the complaint, the First and/or Second Defendant made false statements about the Plaintiff’s business and/or commercial standing, in that the Defendant/s provided documentation to Detective Wigfield and/or Victoria Police and complained that the Plaintiff had in his business dealings with the Defendant/s stolen money from them (and the Plaintiff relies on paragraphs 16 and 17 above).
…
25.3As a result of the First Defendant making the complaint to Victoria Police as set out in paragraphs 16 and 17, police officer/s visited the Plaintiff’s practice and made comments to the practice secretary, Carolyn Thomson, as set out in paragraph 22. Had the complaint not been made Victoria Police would not [have] attended the Plaintiff’s practice.
Apart from the lack of precision and other difficulties which infect paragraphs 16, 17 and 18, counsel for the applicant submitted that paragraphs 22, 24.1 and 25.3 are also contradictory or alternatively embarrassing in that one cannot say whether what each alleges is part of the one allegation or intended as an alternative allegation.
We think that complaint to be well justified, too. Assuming, as counsel for the respondent appeared to accept in argument, that paragraphs 22, 24.1 and 25.3 are all directed to the one thing, what needs to be done is for those three paragraphs to be combined and refined in the manner already stated with respect to the previous parts of the pleading.
Counsel for the respondent did not oppose that conclusion but he submitted, that, until and unless the respondent obtains discovery of police records of the applicant’s statement to the police, the best the respondent can do is allege what he believes to be the substance of the statement, as inferred from the actions of the police in visiting the respondent's practice and speaking to the practice secretary in the terms alleged. On that basis, counsel contended that, for the time being the applicant should not be required to do any more than plead the inferred substance of the statement as best he understands it.
We do not accept that contention. In this area of the law, the difficulty which the respondent faces is not an answer. The point was made by Lord Denning in Collins v Jones, in a case of libel based on letters believed to have been sent by the defendant to a third party but of which the plaintiff did not have copies and therefore could not state the precise contents. His Lordship (with whom Penner LJ agreed) said:
Assuming that these letters did contain some statements defamatory of the plaintiff, that is not sufficient to ground a libel action. She must show what the actual words were. A plaintiff is not entitled to bring a libel action on a letter which he has never seen and of the contents of which he is unaware. He must, in his pleading, set out the words with reasonable certainty: and to do this he must have the letter before him, or at least have sufficient material from which to state the actual words in it. A suspicion that it is defamatory is not sufficient. He cannot overcome this objection by guessing at the words and putting them in his pleading. The court will require him to give particulars so as to ensure that he has a proper case to put before the court and is not merely fishing for one. If he cannot give the particulars, he will not be allowed to go on with the charge. That is what was done in the recent case in this court of Guest v Iraq Petroleum Company Ltd, and I think that we should make a similar order here.[4]
[4][1955] 1 QB 564, 571–2 (citation omitted).
As has been explained, the requirement that impugned statements be pleaded precisely applies as much to a case of injurious falsehood as it does to libel and slander. It was not suggested, and we do not think it could be, that this case falls within the kind of exception to which Lord Abinger referred in giving judgment in Gutsole v Mathers,[5] where the case is not properly an action for words; that is where words are mixed up with the charge, to which the rule could not apply, such as in a case of an action for deceit by reason of a false representation of character, or an action founded on a deceitful representation to induce a party to advance money.[6]
[5](1836) 1 M & W 495, 502–503; 15 ER 530, 532–533 cf Haddan v Lott (1854) 15 CB 411; 139 ER 484.
[6]Gutsole v Mathers, ibid 503; 533.
The final series of complaints concern paragraph 27 of the further amended statement of claim which are as follows:
27.The Plaintiff suffered actual loss and/or special damage as a natural and probable result of publication of the false statements.
27.1Following the complaint, the Plaintiff suffered general loss of business, including in the Plaintiff ceasing to receive work he had been receiving from Victoria Police, a result of the investigation of the complaint made by the Defendant/s.
27.2Following the complaint to Victoria Police and false statements made by the First Defendant to Dr Francis (as set out in paragraph 21[7]), and as a consequence of the making of those false statements which were communicated by Dr Francis to the Plaintiff, the Plaintiff suffered financial loss resulting from reduced motivation to work, including seeing at least 4 patients less per week at his Collins Street practice, from the occurrence of these events and continuing.
27.3Following the complaint to Victoria Police and false statements made by the First Defendant to Dr Francis (as set out in paragraph 21), and as a consequence of the making of those false statements, the Plaintiff suffered psychological injury.
27.4Following the complaint by the Defendant/s and the false statements by the First Defendant to Dr Francis (as set out in paragraph 21), and as a consequence of the making of those false statements, the Plaintiff suffered injury, including coronary heart disease caused by stress that the false statements caused the Plaintiff.
27.5Following the complaint by the Defendant/s and the false statements by the First Defendant to Dr Francis (as set out in paragraph 21), the Plaintiff suffered loss to his reputation as a law abiding citizen and a person of impeccable professional integrity, which reputation was critical to his business practice.
[7]The statement(s) alleged to have been made to Dr Francis are set out in paragraph 21.
The complaints here were numerous but in substance came down to the absence of any precisely determinable connexion between the alleged false statement, the circumstances in which it was made, the persons to whom it was made or who heard it made, their reaction to it and the alleged consequent loss and damage.
Counsel for the applicant submitted that it is impermissible or at least unacceptable to mix up a number of different allegations of loss and damage apparently relating to different statements or possibly to more than one statement and then allege a generalised conclusion that the statement or those statements somehow resulted in the respondent sustaining some form of loss and damage. In counsel’s submission, the respondent needs to plead a precise chain of connection between the alleged false statement and the loss and damage suffered.
In our view, those complaints are also well founded. What needs to be done in order to put the pleading into proper order is to allege in a precise, ordered and logical fashion, which statement is alleged to have been made, to whom it was made and how the making of it led to results which, it is said it can be seen, were causative of loss and damage that the respondent is alleged to have suffered.
Other things being equal, the rectitude of the applicant’s complaints about the inadequacy of the pleading would lead to an order that it be struck out. We are, however, mindful of the difficulties faced by the respondent as the result of not having access to the documents he believes the police have in their possession in which are recorded the terms in which the applicant made the allegedly malicious statement or statements to police. Those difficulties might be overcome if the respondent were granted access to the documents before being required to put his pleading in order.
Counsel for the applicant made the submission, perhaps not unfairly, that the respondent has brought his difficulties on himself by instituting the proceeding without first seeking pre-action discovery and, as a consequence, failing in a subsequent application before another County Court judge for non-party discovery before the close of pleadings.
Be that as it may, it seems to us that the justice of the matter might best be served by putting over the further hearing of this application to a later date and in the meantime affording the respondent an opportunity of issuing subpoenas under Order 42A of the Supreme Court (General Civil Procedure) Rules 2005 (‘the Rules of Court’) returnable before the Prothonotary. Thus, counsel for the respondent would have the subpoenaed documents before them as they attempt to put the pleading into order in accordance with these reasons.
What we propose to do, therefore, is to adjourn the further hearing of this application to a date as soon as conveniently possible after 28 February 2015; to direct that any application by the respondent further to amend his statement of claim be filed and served by no later than 18 December 2014 and be returnable before this court on the next occasion; and to grant to the respondent leave to issue subpoenas pursuant to Order 42A.02 of the Rules of Court returnable before the Prothonotary before 18 December 2014.
It remains to deal with costs but, before doing so, we wish to add that, unless before the next time the matter comes back to us, the respondent has filed an application for leave to amend his pleading to a form which accords with our reasons, it is very unlikely, and perhaps beyond peradventure, that we would entertain any further argument about the adequacy of the pleading. Consequently, if the matter comes back next time without a successful application further to amend the statement of claim, it should be assumed that, subject to any unforseen circumstances, the application for leave to appeal will be granted, the appeal will be treated as instituted and heard instanter and allowed and the existing further amended statement of claim will be struck out.
We turn then to the question of costs. In discussing the matter with counsel, we suggested that we would grant costs of the day in favour of the applicant and deal with the remainder of the costs on the next occasion. Counsel for the applicant submitted, however, that, given what we have said about the inadequacy of the existing further amended statement of claim, it is also only fair that the applicant should now have an order for costs of the whole of the application and, too, for the costs of the proceeding below.
There is some force in that submission but at the same time it would be anomalous to leave over the application to strike out until the next occasion and yet make orders for costs in favour of the applicant as if we had finally dealt with the application.
In those circumstances, we have concluded that the best thing to do is to deal now only with the costs of the day while observing that, if on the next occasion the existing pleading is struck out, it would ordinarily follow that the applicant should have an order for the costs of this application, and the appeal and of the costs of the application below. Similarly, if there is placed before the Court a further amended statement of claim which complies with the rules of pleading and leave to amend is granted, it is to be expected that the applicant should have his costs of this application, the appeal and the costs below.
For the time being, we shall order simply that:
1) The further hearing of this application is adjourned to a date to be fixed by the Registrar, as soon as conveniently possible after 28 February 2015.
2) Any application by the respondent further to amend his statement of claim shall be filed and served by no later than 2:00 pm on 18 December 2014 and made returnable before this court on the resumed hearing of this application.
3) In the meantime, the respondent shall have leave to issue subpoenas, pursuant to Rule 42A.02 of the Supreme Court (General Civil Procedure) Rules 2005, to be made returnable before the Prothonotary of the Supreme Court of Victoria on a date before 18 December 2014.
4) The respondent then pay the applicant’s costs of the hearing on 21 November 2014, to be taxed in default of agreement.
We add, although not by way of order, that it is to be expected that any such subpoenas will be made returnable well before 18 December 2014 so as to accord the respondent sufficient time to consider the subpoenaed documents and formulate his proposed further amended pleading in good time to file and serve his application for leave to amend by 18 December 2014.
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