Cartwright v Palmer - [2010] WASC 241

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CARTWRIGHT -v- PALMER [2010] WASC 241

CORAM: LE MIERE J

HEARD: 26 JULY 2010

DELIVERED : 9 SEPTEMBER 2010

FILE NO/S: CIV 1201 of 2010

BETWEEN: PAUL CARTWRIGHT
Plaintiff
AND
CLIVE FREDERICK PALMER
Defendant

Catchwords:

Practice and procedure - Application to strike out parts of the statement of claim - Imputations - Use of rolled up assertions not permitted - Generality of imputations - Whether words complained of are capable of bearing the meaning pleaded - Turns on own facts

Legislation:

Nil

Result:

Paragraphs 5.1 and 9.1 of the statement of claim be struck out

Category: B

Representation:

Counsel:

Plaintiff: Mr B G Grubb
Defendant: Mr P J Ward

Solicitors:

Plaintiff: Metaxas & Hager
Defendant: Blake Dawson

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165
Lewis v Daily Telegraph Ltd [1964] AC 234
Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663
Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148

LE MIERE J: Kingsway Oil Ltd is a company engaged in petroleum exploration. The plaintiff was the managing director of Kingsway. The defendant was a director of Kingsway and a director of a substantial shareholder of Kingsway. Mark Strizek was a director of Kingsway nominated by the defendant and was chairman of the board of directors of Kingsway.
In this action the plaintiff complains that two emails sent by the defendant are defamatory of him. The defendant sent the first email to the plaintiff with a copy to Mr Strizek. The defendant sent the second email to various persons in the Department of Mines WA, Mr Strizek and two other persons.
The defendant now applies to strike out those parts of the statement of claim that plead defamatory meanings or imputations and plead damage allegedly suffered by the plaintiff as a result of the emails.

The first email

The first email is:
To: [email protected]
Cc: Mark Strizek
Subject: Re: No executive mandate for Kingsway Oil
Mark is ther chairman of Kingsway you are subservant to him got it not only have you lied to the board the western Australian government and shareholders you have breeched the corperation law by not declaring your interests we are convening a shareholders meeting to remove you forthwith and and myself and mark on behalf of the company will commence action in the supreme court against you in the near future to recover damages from you personally clive palmer Resourcehouse Limited.
The plaintiff pleads that the first email gives rise to the following defamatory imputations:
5.1that the plaintiff had lied to and been dishonest in his dealings with:
(a)the board of Kingsway;
(b)the Western Australian Government; and
(c)Kingsway shareholders; and
5.2had breached the Corporations Act 2001 (Cth), by not declaring interests that were required by law to be declared under the Act.

Paragraph 5.1

Paragraph 5.1 should be struck out on the ground that it may prejudice, embarrass or delay the fair trial of the action. It is not clear whether the paragraph is pleading one imputation or three imputations. It may be pleading one imputation that the plaintiff had lied to and been dishonest in his dealings with the Board, the Government and the shareholders. Alternatively, it may be pleading three imputations, one that the plaintiff had lied to and been dishonest in his dealings with the Board, a second and distinct imputation that the plaintiff had lied to and been dishonest in his dealings with the Government and a third separate and distinct imputation that the plaintiff had lied to and been dishonest in his dealings with the shareholders. If there are three separate imputations, the defendant may wish to justify one or two but not all three of the imputations. If there is only one imputation then the plaintiff would not be able to justify that imputation unless he is able to justify the imputation that the plaintiff had lied to the board and to the government and to the shareholders.
Secondly, the words 'the plaintiff had lied to and been dishonest in his dealings with' rolls up two separate and distinct defamatory assertions into one imputation. A plaintiff may not roll up a number of separate and independent defamatory assertions into one imputation. Such a form of pleading produces a positive mischief for both the defendant and the trial judge where a particular defence is available to some but not all of the imputations rolled into one: Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663, 677; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, 157. The imputation that the plaintiff had lied to the named person or persons is a distinct imputation from the imputation that the plaintiff had been dishonest in his dealings with those persons. The defendant might be able to justify an imputation that the plaintiff had been dishonest in his dealings with the named persons but not the imputation that the plaintiff had lied to them.
For the reasons I have stated [5.1] should be struck out. It is not necessary to consider further objections by the defendant but it is convenient to do so. The defendant submitted that the imputation pleaded is embarrassing to the extent that it does not specify whether the plaintiff complains of being accused of telling a single lie (or a lie in relation to a single subject matter) to multiple persons or multiple different lies to the persons named. The defendant further complains that the imputation does not specify what the subject matter of the lie or lies is alleged to have been, to whom the lie or lies were told and when the lie or lies were told.
In the first instance the plaintiff must make clear what meaning or meanings he relies upon. It appears from the submissions of counsel for the plaintiff that the plaintiff intends to plead that the words complained of were understood to mean that the plaintiff had lied on more than one occasion to each of the three persons named. If that is the meaning the plaintiff contends for then he must make that meaning clear. That meaning would not be made clear by a pleading that the words complained of were understood to mean that the plaintiff had lied to the Board, the Government and the shareholders. That imputation conveys that the plaintiff had lied to each of the Board, the Government and shareholders but nothing more. Such an imputation may be justified by proving that the plaintiff had lied to the Board, the plaintiff had lied to the Government and the plaintiff had lied to the shareholders irrespective of whether it was proved that the plaintiff had told one or more lies to each of those persons or bodies and irrespective of whether the plaintiff had told the same or different lies to each of those persons or bodies.
The plaintiff is not obliged to include in his imputation the further details contended for by the defendant. The plaintiff is not required to include in his imputation when the lie or lies were told or what the subject matter of the lie or lies is alleged to have been.
The plaintiff may plead, if he wishes, that the words were understood to mean that the plaintiff had lied to the Western Australian Government. The defendant says that a plea that the words were understood to mean that the plaintiff had lied to, or had been dishonest in his dealings with, the Western Australian Government is embarrassing because it could mean any government officer ranging from the Premier to a librarian.
The imputation referred to is at a high level of generality insofar as it refers to having lied to the Western Australian Government rather than any particular person or department of government. In Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gleeson CJ said that almost any attribution of an act or condition to a person is capable of both further refinement and further generalisation and that in any given case the judgment needs to be made as to the degree of particularity or generality which is appropriate to the occasion and as to what constitutes the necessary specificity. His Honour said that the solution would usually be found in considerations of practical justice rather than philology (137). The imputation must be read in the context of the email: Greek Herald Pty Ltd v Nikolopoulos (2002) 54 NSWLR 165. The email says that its subject matter is 'No executive mandate for Kingsway Oil'. The email refers to the plaintiff being subservient to the chairman of Kingsway Oil and then goes on to say that the plaintiff lied to, amongst others, the Western Australian Government. The email does not say to which individual or which government department the plaintiff lied. An imputation that the words were understood to mean that the plaintiff lied to the Western Australian Government is not at too high a level of generality.

Paragraph 5.2

The defendant submits that the pleaded imputation is embarrassing to the extent that it fails to identify the interests in question. The defendant submits that the plaintiff should be required to specify what interests he alleges the defendant was referring to, to whom they should be declared and when.
The objection that the imputation is insufficiently precise again raises questions about the degree of specificity needed in a pleading. The necessary degree of precision is a matter of judgment: see Drummoyne Municipal Council v Australian Broadcasting Corporation (Gleeson CJ) to which I have already referred. Gleeson CJ said that it is to avoid confusion and uncertainty that the requirement of specificity is directed and the practical content of the requirement for specificity is to be determined in that light (140).
The first email alleges that the plaintiff had 'breeched [sic] the corporation [sic] law by not declaring your interests'. It is arguable that a reasonable person in the position of the recipient of the email would have understood 'the corperation [sic] law' to be a reference to the Corporations Act 2001 (Cth). The email does not identify which provisions of the Corporations Act the plaintiff is alleged to have breached nor which interests he failed to declare. In those circumstances practical justice does not require that the plaintiff specify in the imputation the interests which he is alleged not to have declared.

Paragraph 6

The defendant next complains of [6] of the statement of claim which pleads:
6.By reason of the First Email, the plaintiff's personal, business and professional reputation has been seriously damaged and he has suffered distress and embarrassment.
The defendant submits that the first email was not published to Mr Strizek. The defendant says that the first email was sent by the defendant on behalf of Resourcehouse Ltd acting through the defendant and Mr Strizek. That is not a strike out point. In order to constitute publication, the matter must be published by the defendant to a third party, that is, to at least one person other than the plaintiff. The plaintiff pleads that the defendant published the email to Mr Strizek. On the face of it the email was copied to, that is, communicated to, Mr Strizek. The defendant's argument that the email was not published to Mr Strizek because the defendant sent the email to the plaintiff on behalf of himself and Mr Strizek is a matter for the defendant to raise by way of defence.
Next the defendant submits that if there was an actionable publication to Mr Strizek then the publication is protected by privilege arising out of the commonality of interest between the defendant and Mr Strizek. That is not a strike out point. It is a matter for the defendant to raise by way of defence.
The defendant further submits that the plea of damage to the plaintiff's professional reputation should be struck out. The plaintiff pleads in [1] of the statement of claim that he is a petroleum geologist by profession. The defendant submits that there is nothing in the first email that touches upon, or could in any way cause damage to, the plaintiff's reputation in that profession.
The plea of damage to the plaintiff's professional reputation is not so manifestly untenable that it cannot succeed. The statement of claim pleads that the plaintiff is a petroleum geologist by profession and a director and managing director of a company engaged in petroleum exploration. The first email was published to Mr Strizek who was a director of the company. It is arguable that the words complained of would have been understood by the recipient to have been written about the plaintiff in reference to his conduct as managing director of a petroleum exploration company and said of him that he had lied to the company board, to the Western Australian Government and to the company shareholders and that he had breached the Corporations Act. It is not obvious that such allegations made to a director of a petroleum exploration company could not damage the plaintiff in the way of his profession as a petroleum geologist.

Paragraph 9

The plaintiff pleads that the defendant defamed him by publishing a second email to persons holding the offices of Director of Petroleum Division, Legal Officer, Manager Native Title and Heritage and Exploration Geologist Petroleum Division in the Department of Mines Western Australia, as well as to Ross Ledger, Bill Preston and Mr Strizek.
The second email is:
‑‑‑‑‑Original Message‑‑‑‑‑
From: terry smith [mail to: [email protected]]
Sent: Thursday, 24 December 2009 9:9AM
To: Bill Tinapple; [email protected]; Maryie Platt; Richard BRUCE; [email protected]
Cc: [email protected]; Bill Preston; 'Mark Strizek'
Subject: Re: Dealings with Kingsway Oil
Disregard this deadbeat AND CALL A SHAREHOLDERS MEETING TO REMOVE HIM OR HE WIL WASTE ALL SHAREHOLDER FUNDS
The plaintiff pleads at [9] that the second email in its natural and ordinary meaning meant and it was understood to mean, that the plaintiff was:
9.1a vagrant;
9.2inept,
9.3unreliable,
9.4would waste the funds of the shareholders in Kingsway;
9.5was not fit to continue to be a director of Kingsway; and
9.6should be removed as a director of Kingsway.
The defendant submits that the imputations pleaded in [9.1], [9.2], [9.3] and [9.5] should be struck out because they are not capable of being drawn from the natural and ordinary meaning of the words of the second email.
The Macquarie Dictionary defines 'deadbeat' as 'someone down on their luck; vagrant'. The plaintiff says that 'vagrant' is a meaning of 'deadbeat' and therefore the words 'disregard this deadbeat' in reference to the plaintiff meant and were understood to mean that the plaintiff was a vagrant.
The meaning of words is a question of fact but whether the words are capable of defamatory meaning is for the judge: Lewis v Daily Telegraph Ltd [1964] AC 234, 271 (Lord Hodson). In a strike out application the question is not whether the words complained of bear the meaning pleaded. The question is whether the words complained of are capable of bearing the meaning pleaded. The judge should only strike out the pleaded imputation if he or she is satisfied that the words complained of are not capable of bearing the meaning pleaded.
In ascertaining the range of legitimate meanings the question is what a jury could sensibly think the words complained of meant. In considering the legitimate range of meanings of the words complained of the court must have regard to the nature of the publication and their context. The words complained of are contained in an email sent to officers of the Department of Mines Western Australia and copied to others. The email states that its subject matter is 'dealings with Kingsway Oil'. The plaintiff says that the words 'disregard this deadbeat and call a shareholders meeting to remove him or he will waste all shareholder funds' were published about him. The defendant does not challenge that assertion. The context of the word 'deadbeat' is that the recipients of the email should disregard the plaintiff and call a shareholders' meeting to remove him or he will waste all the shareholders' funds.
In my judgment the words complained of could not sensibly have been understood by the recipients of the email, or reasonable persons in their position, to mean that the plaintiff was a vagrant, that is, someone who wanders from place to place and has no settled home or means of support. The allegation of 'deadbeat' cannot be divorced from the demand to call a shareholders' meeting and remove him or he will waste all the shareholders' funds. No reasonable person could understand the words complained of to be alleging that the plaintiff was homeless or wandering from place to place without means of support.
The defendant submits that the imputations that the plaintiff was inept and that the plaintiff was unreliable are not able to be drawn from the second email. I reject that submission. The second email is capable of being understood by the recipients of the email to mean that the plaintiff was inept, that is, not apt, fitted or suitable, ineffectual or useless. The second email called upon the recipients to call a shareholders' meeting to remove the plaintiff from an office or he would waste all the shareholders' funds. A reasonable person might understand those words to mean that the plaintiff would waste all the shareholders' funds because he was unsuitable or useless rather than because he was dishonest. The description of the plaintiff as a deadbeat might be understood to be referring to the plaintiff as being a fool rather than a knave. The imputation that the plaintiff was inept is not so clearly untenable that it cannot possibly succeed.
The words of the second email might reasonably be understood to mean that the plaintiff was unreliable in that he could not be relied upon to properly look after shareholder funds or otherwise properly or adequately carry out his duties and responsibilities with Kingsway Oil. The imputation is not so clearly untenable that it cannot possibly succeed.
Imputation 9.5 is that the plaintiff was not fit to continue to be a director of Kingsway. The defendant says that that imputation is not available to be drawn from the second email.
The words complained of are capable of giving rise to the meaning pleaded. The recipients of the email are called upon to call a shareholders' meeting to remove the plaintiff. It is not expressly stated that the shareholders' meeting is to remove the plaintiff as a director but that is an inference which is capable of being drawn from the email. The subject matter of the email is the company, Kingsway Oil. The email is calling upon the recipients to call a shareholders' meeting to remove the plaintiff so as to prevent him wasting all shareholders' funds. It is arguable that an ordinary reasonable person would understand that the shareholders' meeting is to remove the plaintiff from the office of director. The description of the plaintiff as a deadbeat coupled with the call to remove him or he would waste all shareholders' funds is capable of being understood as conveying the meaning that the plaintiff was not fit to continue to be a director of the company. The imputation is not so clearly untenable that it cannot possibly succeed.

Paragraph 10

Paragraph 10 of the statement of claims is:
10.By reason of the Second Email the plaintiff's personal, business and professional reputation has been seriously damaged, his relationship with the Department of Mines and the officers in that Department also seriously damaged, and he has suffered distress and embarrassment.
The defendant submits that [10] should be struck out for the same reasons that the plaintiff says [6] should be struck out. I reject that submission for the same reasons that I reject the argument that [6] of the statement of claim should be struck out.

Conclusion

For the reasons stated [5.1] and [9.1] of the statement of claim should be struck out. The application should otherwise be dismissed.