Bell-a-bike Rottnest Pty Ltd v Automotive, Food, Metals, Engineering Printing and Kindred Industries Union of Workers, Western Australian Branch
[2003] WASC 51
BELL-A-BIKE ROTTNEST PTY LTD & ORS -v- AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH & ORS [2003] WASC 51
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2003] WASC 51 | |
| Case No: | CIV:2496/2001 | 7 MARCH 2003 | |
| Coram: | HASLUCK J | 25/03/03 | |
| 13 | Judgment Part: | 1 of 1 | |
| Result: | Application dismissed | ||
| B | |||
| PDF Version |
| Parties: | BELL-A-BIKE ROTTNEST PTY LTD SANDRA PARKER GLEN PARKER AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU) MICHAEL ANDERTON JOCK FERGUSON TIMOTHY KUCERA LENARD CHRISTIE TRISTEN DEMMLER LOUISE DI FALCO DAVID ROMANOWSKI STEVEN VERT NICHOLAS YEOMANS |
Catchwords: | Defamation Practice and procedure Application for leave to amend defence Proposed plea of justification Proposed Polly Peck defence Turns on own facts |
Legislation: | Industrial Relations Act 1979 Minimum Conditions of Employment Act 1993 Rules of the Supreme Court 1971, O 20 r 19 |
Case References: | Templeton v Jones [1984] 1 NZLR 448 Adam v Ward [1917] AC 309 Guise v Kouvelis (1947) 74 CLR 102 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211 Stuart v Bell [1891] 2 QB 341 Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
SANDRA PARKER
Second Plaintiff
GLEN PARKER
Third Plaintiff
AND
AUTOMOTIVE, FOOD, METALS, ENGINEERING PRINTING AND KINDRED INDUSTRIES UNION OF WORKERS, WESTERN AUSTRALIAN BRANCH
First Defendant
AUTOMOTIVE, FOOD, METALS, ENGINEERING, PRINTING & KINDRED INDUSTRIES UNION OF WORKERS (AMWU)
Second Defendant
MICHAEL ANDERTON
Third Defendant
(Page 2)
JOCK FERGUSON
Fourth Defendant
TIMOTHY KUCERA
Fifth Defendant
LENARD CHRISTIE
Sixth Defendant
TRISTEN DEMMLER
Seventh Defendant
LOUISE DI FALCO
Eighth Defendant
DAVID ROMANOWSKI
Ninth Defendant
STEVEN VERT
Tenth Defendant
NICHOLAS YEOMANS
Eleventh Defendant
Catchwords:
Defamation - Practice and procedure - Application for leave to amend defence - Proposed plea of justification - Proposed Polly Peck defence - Turns on own facts
Legislation:
Industrial Relations Act 1979
Minimum Conditions of Employment Act 1993
Rules of the Supreme Court 1971, O 20 r 19
(Page 3)
Result:
Application dismissed
Category: B
Representation:
Counsel:
First Plaintiff : Mr P K Walton
Second Plaintiff : Mr P K Walton
Third Plaintiff : Mr P K Walton
First Defendant : Mr G R Donaldson
Second Defendant : Mr G R Donaldson
Third Defendant : Mr G R Donaldson
Fourth Defendant : Mr G R Donaldson
Fifth Defendant : Mr G R Donaldson
Sixth Defendant : Mr G R Donaldson
Seventh Defendant : Mr G R Donaldson
Eighth Defendant : Mr G R Donaldson
Ninth Defendant : Mr G R Donaldson
Tenth Defendant : Mr G R Donaldson
Eleventh Defendant : Mr G R Donaldson
Solicitors:
First Plaintiff : Jackson McDonald
Second Plaintiff : Jackson McDonald
Third Plaintiff : Jackson McDonald
First Defendant : Chapmans Lawyers
Second Defendant : Chapmans Lawyers
Third Defendant : Chapmans Lawyers
Fourth Defendant : Chapmans Lawyers
Fifth Defendant : Chapmans Lawyers
Sixth Defendant : Chapmans Lawyers
Seventh Defendant : Chapmans Lawyers
Eighth Defendant : Chapmans Lawyers
Ninth Defendant : Chapmans Lawyers
Tenth Defendant : Chapmans Lawyers
Eleventh Defendant : Chapmans Lawyers
(Page 4)
Case(s) referred to in judgment(s):
Templeton v Jones [1984] 1 NZLR 448
Case(s) also cited:
Adam v Ward [1917] AC 309
Guise v Kouvelis (1947) 74 CLR 102
Lange v Australian Broadcasting Corporation (1997) 189 CLR 520
Stephens v West Australian Newspapers Ltd (1994) 182 CLR 211
Stuart v Bell [1891] 2 QB 341
Telegraph Newspaper Co Ltd v Bedford (1934) 50 CLR 632
(Page 5)
1 HASLUCK J: The plaintiffs have advanced a claim in defamation against the defendants. The question before me is whether the defendants should be allowed leave to amend their statement of defence in terms of a minute of proposed defence dated 28 February 2003. The plaintiffs are opposed to the grant of relief on the grounds that in certain respects the proposed defence fails to disclose a reasonable defence and, in any event, is embarrassing.
Background
2 The first plaintiff, Bell-A-Bike Rottnest Pty Ltd, operated a bicycle hire business at Rottnest Island, Western Australia. The second and third plaintiffs are directors of the plaintiff company.
3 The first and second defendants are registered trade unions and are said to be responsible for the publication of a pamphlet on or about 27 October 2000 which contained various criticisms of the plaintiff company. The tenor of these criticisms can be gathered from the opening paragraphs of the pamphlet which were reproduced at par 13 of the plaintiffs' statement of claim and read as follows:
" 'ROTTO BIKE BOYCOTT'
[1] Rottnest Island is famous for its bikes. What is not well known is that the workers, who service and repair these bikes, are not paid award rates and conditions. Some of these people have been working on Rottnest for over 3 years with their employer telling them they are still casual employees!
[2] Bike hire employees get no holiday pay, no entitlement to sick leave, have no job security and are not paid for the overtime they have to perform. Bike hire employees are required to work on any day of the week for a flat hourly rate of pay that is well below the award.
Bike Hire Privatised
[3] The Rottnest bike-hire, used to be operated by the State Government. In those days employees were paid Award rates conditions. But then the business was privatised by the Court Liberal Government and the work was contracted out to Bell-A-Bike Pty Ltd. Conditions for workers have gone backwards since!"
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4 Criticisms of this kind were echoed in a number of subsequently published pamphlets for which the first defendant and/or the second defendant are said to be responsible. The plaintiffs say also that certain of the defendant unions' employees and certain of the plaintiffs' employees were responsible for criticisms of the plaintiff company's operations being published in the West Australian Newspaper and in other media publications.
5 It was against this background that the plaintiffs commenced proceedings against the defendant unions and the various individuals who have been named as defendants in the proceedings.
6 It was common ground at the hearing before me that on 21 June 2002 an Industrial Magistrate, Mr W G Tarr, found that the plaintiff company had committed breaches of the Metal Trades (General) Award No 13 of 1965. The learned Magistrate found that the complainant in those proceedings, Lenard Christie, (being the sixth defendant in these proceedings) could not be characterised as a casual employee. Further, as the plaintiff company was engaged in two industries, being the cycle hire industry and the cycle repair industry, and as the complainant was employed in the latter industry, the plaintiff company was subject to the award.
7 Subsequently, on 27 September 2002 a Full Bench of the Industrial Relations Commission upheld an appeal against the ruling of the learned Industrial Magistrate. The Full Bench was of the view that the award did not apply to the industry carried on by the plaintiff company. The facts were that the plaintiff company hired bicycles to the public and to a negligible extent, provided some cycle repairs for the public and some liquid refreshment by way of water or soft drink.
8 The plaintiffs filed a lengthy statement of claim setting out the contents of the various publications and the defamatory imputations which were said to be contained in the same. For ease of exposition, I will look principally at the pleadings referable to the first pamphlet.
9 The plaintiffs plead in par 15 of the claim that in their ordinary and natural meaning the words contained in the first pamphlet were defamatory of the plaintiffs and each of them and conveyed the various imputations set out in sub-paragraphs (a) to (t) of that paragraph.
10 It is not necessary to traverse the imputations in their entirety. However, in summary, the plaintiffs are charged with acting unlawfully, acting in breach of the Industrial Relations Act 1979 (WA), acting in
(Page 7)
- breach of the Minimum Conditions of Employment Act 1993 (WA), exploiting the employees of the plaintiff company, acting unfairly towards the employees of the plaintiff company, not acting in good faith towards the employees of the plaintiff company, acting in breach of accepted commercial standards, and so forth. Importantly, for present purposes, it is said in par 15(e) that the words complained of meant and were understood to mean that the plaintiffs "had acted unreasonably towards the employees of the first plaintiff". Imputations of this kind were said to be contained in the later publications.
11 I note in passing that par 18 of the claim sets out the imputations which are said to be conveyed by the second pamphlet. This paragraph picks up and repeats most of the par 15 imputations but, in sub-paragraphs (b) and (c) speaks of the plaintiffs having deliberately eroded the entitlements of the employees of the plaintiff company (par 18(b)) and unlawfully eroding the entitlements of employees of the plaintiff company (par 18(c)).
12 The defendants proceeded to file and serve a statement of defence. This gave rise to an application by the plaintiffs to strike out certain portions of the statement of defence. Various exchanges then took place between the solicitors for the respective parties concerning the delivery of further and better particulars of the defence. As I indicated earlier, the defendants now seek leave to file and serve an amended defence in terms of a minute dated 28 February 2003. A number of matters in controversy were disposed of by agreement between the parties. The principal matters remaining in contention concern a proposed plea of justification and a proposed Polly Peck defence.
13 As to the first matter, counsel on both sides recognised that the point in issue could be conveniently tested by reference to the imputation I touched on earlier which is set out in par 15(e) of the claim. Counsel on both sides accepted that a ruling one way or the other in regard to that imputation would bear upon a number of similar issues arising under the proposed statement of defence. The point in issue was argued in that manner and I will proceed in a similar fashion. However, before doing so, it will be useful to remind myself of some legal principles bearing upon an application of this kind.
Legal principles
14 An application for leave to amend will generally not be allowed if the pleading the subject of the proposed amendment is likely to be struck
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- out. Accordingly, it becomes important in the circumstances of the present case to take account of the rules concerning an application to strike out.
15 Order 20 rule 19 of the Rules of the Supreme Court provides that the Court may strike out any pleading on the ground that it discloses no reasonable defence or may prejudice, embarrass or delay the fair trial of the action. On an application of this kind the facts alleged must be accepted as true. The rule concerning whether a reasonable defence has been disclosed is intended only to apply to cases which are untenable or really not arguable.
16 It is a defence to establish that the imputation in respect of which the defendant is sued is true. The essence of such a plea is that if the words complained of bear the defamatory meaning contended for by the plaintiff then those words, so understood, are true.
17 It is not enough for the defendant to prove that he believed in the truth of what he said. He must prove that the defamatory imputation is substantially true. If the matter complained of contains defamatory statements both of fact and of opinion, the defendant, under a plea of justification, must prove that the statements of fact are true and that the statements of opinion are correct: Gatley on Libel and Slander (9th ed) par 11.1 to par 11.5.
18 A defendant who wants to plead justification can do so in one of two ways. The first is to plead that one or more of the imputations which the plaintiff says arise from the words complained of are true in substance and in fact. However, if a defendant takes the view that the imputations pleaded by the plaintiff do not arise from the words complained of and they are not in a position to justify the plaintiff's imputations, there is another course open to them. That course is known as a Polly Peck defence, that is to say, a defendant can plead the imputations which he says arise from the words complained of and then justify those imputations.
19 It is clear, however, that the Polly Peck defence must be narrowly confined to imputations and meanings similar to the imputations contended for by the plaintiff, bearing in mind, that the plaintiff is at liberty to complain only of certain passages or aspects of the publication in question: Templeton v Jones [1984] 1 NZLR 448.
20 A Polly Peck defence is subject also to a number of limitations. The imputations must relate to a distinct charge arising from the words
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- complained of. A Polly Peck imputation cannot be more injurious or damaging than the plaintiff's imputations. Also, the scope of what can be pleaded in a Polly Peck defence is affected by the extent to which the tribunal of fact may depart from the imputations pleaded by the plaintiff and yet still find in the plaintiff's favour.
The plea of the award
21 I noted earlier that in par 15(e) of the statement of claim the plaintiffs allege that in their ordinary and natural meaning the words contained in the first pamphlet were defamatory of the plaintiffs and each of them and meant and were understood to mean that the plaintiff company had acted unreasonably towards the employees of the plaintiff company.
22 In par 15(e) of the proposed statement of defence the defendants deny that the words complained of bear the meaning pleaded. They say further in par 15(e)(ii) that in any event the words were true in substance and in fact in that at all material times the plaintiffs acted unreasonably towards the employees of the plaintiff company in that employees were not paid their entitlements due as a matter of law contrary to the terms and provisions of the Minimum Conditions of Employment Act 1993 in respect of at least sick leave and annual leave. It is pleaded that full particulars of this will be provided prior to trial. It is pleaded further that such employees were not paid in accordance with the Metal Trades (General) Award No 13 of 1965 ("the Award") which set the minimum reasonable standards of working conditions for employees engaged in bicycle repair work.
23 Against the background of the decision of the Full Bench of the Industrial Relations Commission mentioned earlier, it was accepted by both counsel at the hearing before me that at all material times the employees of the plaintiff company were not subject to the award. In these circumstances, counsel for the plaintiffs argued, there was no basis for any assertion, as a matter of fact or as a matter of opinion, that the plaintiff company had acted unreasonably in failing to pay its employees in the manner required by an award which was not binding upon it. The defendants' proposed plea of justification should therefore be characterised as untenable and not be allowed.
24 Counsel for the defendants submitted that the fact material to the plea of justification in question was that employees of the plaintiff company were paid less than the award which set the minimum reasonable standard for payment of persons engaged in bicycle repair
(Page 10)
- work. The employer might not be bound strictly by the award in question but it was open to the defendants to assert that the employer was acting unreasonably if it made payments significantly below the standards set by an award that could be regarded as having some bearing upon the kind of work being performed by the employees of the plaintiff company.
25 In the course of debate concerning this issue various contentions were advanced in support of the opposing cases. Counsel for the plaintiffs submitted that in the field of industrial relations it was generally recognised that if a party was not strictly bound by an award it could pursue its own course. It could not be characterised as acting unreasonably or unfairly if it did not conform to an award that was not binding upon it, especially in a field where the employees were said to be casual employees undertaking work in a recreation area affected by seasonal cycles.
26 On the other hand, counsel for the defendant submitted that an employer who failed to have regard to an award that governed work of a similar kind could be characterised as acting unreasonably. The line of defence reflected in the proposed plea was arguable and should therefore not be struck out but be dealt with at the trial as a matter to be resolved in accordance with the evidence.
27 In regard to this issue I am satisfied, having regard to the argument advanced by counsel for the plaintiffs, that the proposed plea in par 15(e)(ii) of the proposed defence is untenable and no reasonable defence is disclosed. In my view, the plaintiff company cannot be said to have acted unreasonably because it failed to make payments in accordance with an award that was not binding upon it.
28 My ruling in regard to par 15(e)(ii) flows through to other passages of the proposed statement of defence in which the defendants seek to assert (pursuant to a plea of justification) that the plaintiff company was acting unreasonably or unfairly in failing to conform to the award, notwithstanding that the plaintiff company was not bound by the award. The details of the paragraphs of the proposed defence affected by this ruling are set out below in my summary of the judgment.
Polly Peck defence
29 In par 15(u) of the proposed defence the defendants seek to set up an alternative meaning in respect of the words contained in the first pamphlet and to justify the meaning thus contended for.
(Page 11)
30 The proposed Polly Peck defence is pleaded in this way:
"(u) [The defendants] Say in respect of the whole of the words contained in the first pamphlet that if and in so far as the said words in their natural and ordinary meaning bore and were understood to bear the meanings set out below, they were true in substance and in fact:
(i) That employees of the plaintiff who serviced and repaired bikes were paid wages below that set for bike repairers in the Award,
Particulars of Justification
Such employees were paid wages below that set for bike repairers in the Award.
(ii) That employees of the plaintiff were not paid holiday pay, sick leave or overtime.
Particulars of Justification
Such employees were not paid holiday pay, sick leave or overtime."
32 The notion that the subject employees were not receiving their just entitlements was inherent in various passages in the first pamphlet, counsel for the plaintiffs contended. For example, it is said in the second sentence of the first pamphlet that "What is not well known is that the workers, who service and repair these bikes, are not paid award rates and conditions." A reader would understand from an assertion of this kind that the worker in question was entitled to certain rates and conditions under an award but was not receiving them.
33 Counsel for the plaintiff went on to argue that an assertion of this kind was quite different from an assertion of the kind reflected in the proposed Polly Peck defence which spoke only of employees for the
(Page 12)
- plaintiffs being paid wages below that set for bike repairers in the award. This was an assertion of a weaker kind and did not conform to the requirement that the Polly Peck defence must be confined to imputations similar to the imputations contended for by the plaintiffs.
34 Counsel for the defendants sought to answer this contention by suggesting that the reference to workers not being paid award rates in the first pamphlet could not be construed as an assertion that they were entitled to receive award rates. However, in my view, the thrust of the assertion in the first pamphlet is to the effect that an employer is failing to honour its legal obligations under an award. The reference to an award would convey a message to an ordinary reader that the award is the prescribed yardstick and that the employer is obliged to conform to it. This suggests that the employee has something in the nature of an entitlement of which he or she is being deprived.
35 I am therefore of the view that the proposed Polly Peck plea in par 15(u)(i) marks a significant departure from the sting of the libel and does not sufficiently resemble the imputation contended for by the plaintiffs to be allowed to stand. I consider that the plea in its proposed form is untenable and should be struck out.
36 Reasoning of this kind applies with equal force to the proposed Polly Peck plea in par 22(e)(i) of the statement of defence. I will therefore direct that a plea in that form also should not be allowed.
37 As to the proposed plea in par 27(e)(i) I understood from discussion at the hearing that the defendants would not press for inclusion of a plea in that form. Accordingly, par 27(e)(i) will not be allowed.
Other matters
38 Paragraph 18(b)(ii) reflected a proposed plea to the effect that the words complained of in the second pamphlet were true in substance and in fact in that at material times the plaintiffs had deliberately eroded the entitlements of employees of the first plaintiff because the employees were not paid their entitlements due as a matter of law contrary to the terms and provisions of the Minimum Conditions of Employment Act 1993 in respect of at least sick leave and annual leave. It is said that further and full particulars of this will be provided prior to the trial.
39 The defendants then sought to add to this plea a further passage to the effect that such employees were not at material times paid in
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- accordance with the award when prior to the first plaintiff taking over the bike hire business on Rottnest Island such employees' working conditions were in accordance with the Engineering Trades (Government Award) 1967 Nos 29, 30 and 31 of 1961 and No 3 of 1963. This award is equal and comparable to the award.
40 Counsel for the plaintiffs submitted that a line of defence to this effect was untenable. It could not be said that entitlements had been eroded in circumstances where it had not been established (and was impossible for the defendants to establish in the light of the ruling of the Full Bench of the Industrial Relations Commission) that the employees in question were subject to the award. In effect, the defendants were suggesting that in an earlier era the employer had conformed to the applicable award, but now was not doing so, and hence there had been an erosion in the conditions of employment. However, counsel for the plaintiffs argued, such a view was entirely fallacious, and therefore untenable, when the employer was not in fact bound by an award in the later era. The situation of an employee in the two different eras was simply not comparable, and it could therefore not be alleged that the conditions of employment had declined or been eroded.
41 I am persuaded to the plaintiffs' point of view in regard to this issue and consider that the proposed further passage in par 18(b)(ii) of the proposed defence is untenable and should not be allowed.
Summary
42 The defendants will not be allowed leave to amend their statement of defence in terms of the minute of proposed defence dated 28 February 2003 on the grounds that the paragraphs referred to earlier are liable to be struck out, that is to say, 15(d)(ii), 15(e)(ii), 15(f)(ii), 15(g)(ii), 15(h)(ii), 15(i)(ii), 15(j)(ii), 15(k)(ii), 15(u)(i), 18(b)(ii), 22(e)(i) and 27(e)(i).
43 The defendants will be allowed leave to replead within 14 days. I will hear from the parties as to whether any further orders or directions are required.
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