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: paul@kingswayoil.com
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cartwright v Palmer

Details

AGLC: Cartwright v Palmer [2010] WASC 241
Case: [2010] WASC 241
Decision Date: 9 SEPTEMBER 2010

CaseChat Overview and Summary

In Cartwright v Palmer, the respondent, Mr. Cartwright, filed a statement of claim against the appellant, Mr. Palmer, and others, seeking relief for alleged defamation. The crux of the dispute lies in Mr. Palmer's application to strike out certain parts of the statement of claim, which Mr. Cartwright argues are necessary for his case. The court was tasked with determining whether the specific allegations in the statement of claim were sufficiently precise and whether the imputations made were capable of bearing the meanings pleaded.

The central legal issues revolved around the specificity of the imputations in the statement of claim and whether they met the required standard of precision in pleadings. The court examined whether the allegations in the statement of claim were detailed enough to avoid confusion and uncertainty, and if they could be understood by a reasonable person in the position of the recipient. Additionally, the court had to assess whether the imputations were capable of bearing the meanings intended by Mr. Cartwright.

The court concluded that while the degree of specificity required in pleadings is a matter of judgment, practical justice did not necessitate that Mr. Cartwright specify in detail the interests he was alleged to have failed to declare. The court found that a reasonable person might understand the reference to 'the corporation law' to mean the Corporations Act 2001 (Cth). Furthermore, the court ruled that the plea of damage to Mr. Cartwright's professional reputation was not manifestly untenable and could potentially succeed. The court dismissed Mr. Palmer's application to strike out the relevant parts of the statement of claim.

As a result of the court's decision, the application to strike out parts of the statement of claim was dismissed, allowing Mr. Cartwright's case to proceed.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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. 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.