Craib v Craib
[2018] WASC 112
•13 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CRAIB -v- CRAIB [2018] WASC 112
CORAM: LE MIERE J
HEARD: 21 FEBRUARY 2018
DELIVERED : 13 APRIL 2018
FILE NO/S: CIV 2712 of 2017
BETWEEN: ALISTAIR DESMOND CRAIB
First Plaintiff
DUNCAN THAIN CRAIB
Second Plaintiff
AND
LAUREN JILL CRAIB
First Defendant
PETER EDWARD STANLAKE
Second Defendant
Catchwords:
Procedure - Pleadings - Strike out application - Application to strike out paragraphs of defence - Whether reasonable defence is disclosed - Whether prejudice, embarrassment or delay of fair trial
Defamation - Defences - Triviality - Qualified privilege - Common sting - Justification - Whether particulars pleaded are adequate to support defence
Procedure - Pleadings - Abuse of process - Particulars in defence may give rise to separate cause of action which has not yet been brought - Whether inclusion of particulars giving rise to separate cause of action is an abuse of process
Legislation:
Defamation Act 2005 (WA)
Result:
Defence struck out in part
Leave to re-plead granted
Not abuse of process
Category: B
Representation:
Counsel:
| First Plaintiff | : | Mr M L Bennett |
| Second Plaintiff | : | Mr M L Bennett |
| First Defendant | : | Mr J D MacLaurin |
| Second Defendant | : | Mr J D MacLaurin |
Solicitors:
| First Plaintiff | : | Bennett + Co |
| Second Plaintiff | : | Bennett + Co |
| First Defendant | : | Cullen Macleod Lawyers |
| Second Defendant | : | Cullen Macleod Lawyers |
Case(s) referred to in decision(s):
Charlie Carter Pty Ltd v The Shop Distributive & Allied Employees' Association of Western Australia (1987) 13 FCR 413
Foley v Lord Ashcroft [2012] EWCA Civ 423
Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376
Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109
LE MIERE J:
Summary
The late Ian Craib (who I will refer to as Ian) had three children ‑ Alistair Craib (who I will refer to as Alistair), Duncan Craib (who I will refer to as Duncan) and Claire Davison (who I will refer to as Claire). Alistair and Duncan are the first and second plaintiffs.
Lauren Craib (who I will refer to as Lauren) was the second wife of Ian, having married Ian on 28 October 1996. Lauren is the first defendant. Peter Stanlake (Mr Stanlake) is the second defendant.
Ian died on 26 September 2013. At the date of his death Ian was the registered proprietor of various properties in Karridale, Western Australia, known as Big Wychwood. Big Wychwood was part of a vineyard called Wychwood Vineyard. By his will Ian left Big Wychwood upon trust to Alistair, Duncan, Claire and Lauren as trustees and primary beneficiaries of a trust called the Wychwood Trust. Ian left the residue of his estate upon trust to Lauren as trustee and primary beneficiary of a testamentary trust later known as the Other Craib Will Trust. Pursuant to a deed known as the Craib Deed of Family Arrangement dated in or around 2015 Alistair, Duncan, Claire and Lauren resigned as trustees and appointed Wychwood Holdings as successor trustee of the Wychwood Trust and Lauren resigned as trustee of the Other Craib Will Trust and appointed Wychwood Holdings as successor trustee. Differences have arisen between Lauren on the one hand and Ian's children on the other hand in relation to the disposition of Ian's estate and the Craib Deed of Family Arrangement.
In this action Alistair and Duncan claim Mr Stanlake published by email to Lauren material defamatory of them, that Lauren published by two emails to six or seven recipients material defamatory of them and that Mr Stanlake is liable for those publications. The defendants have filed an amended defence which, in addition to denying or not admitting elements of the claims against them, put forward affirmative defences of justification, qualified privilege and triviality. The plaintiffs have applied to strike out paragraphs of the amended defence on the grounds that they disclose no reasonable defence, they may prejudice, embarrass or delay the fair trial of the action or they are otherwise an abuse of the process of the court.
For the reasons which follow I will strike out [15], [16], [24], [25], [26], [30], [34], [35] and [45(a)] of the defence and particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17] of the defence. The defendants will have leave to re‑plead.
The plaintiffs' claim
The plaintiffs complain of three publications. The first, which the plaintiffs call the 'Abridged Document' was sent by Mr Stanlake to Lauren by email. The Abridged Document does not refer to the plaintiffs by name but the plaintiffs say that Lauren was aware of extrinsic facts which identified the plaintiffs as the subject of statements in the Abridged Document. In [14] of their statement of claim the plaintiffs plead that the Abridged Document was meant and understood to mean that the plaintiffs:
14.1are greedy in respect of Ian's estate;
14.2deliberately schemed to take control of the assets in which the first defendant had an interest and to which they had no entitlement;
14.3deliberately breached their duties as executors to properly administer Ian's Will for their own advantage;
14.4conspired with a financial planner (the plaintiffs' brother‑in‑law, Mr Phil Davison) to deprive the first defendant of her inheritance;
14.5deprived the first defendant of independent advice so as to take advantage of her;
14.6took advantage of the first defendant with the effect of causing her to transfer title in her house to them;
14.7bullied the first defendant with the intention of obtaining a financial benefit from Ian's estate;
14.8deliberately deprived the first defendant of her entitlements under Ian's Will;
14.9locked the first defendant out of her second home; and
14.10deprived the first defendant of access to her personal effects.
The second publication complained of is an email (which I will refer to as the first email) Lauren allegedly published to seven recipients, all of whom know and are known to the plaintiffs. At [19] of the statement of claim the plaintiffs say that the first email meant and was understood to mean that the plaintiffs:
19.1are liars in their dealings with the first defendant and the recipients of the 6.30pm Email
19.2are greedy in respect of Ian's estate;
19.3deliberately breached their duties as executors to properly administer Ian's Will so as to advantage themselves;
19.4deliberately deprived the first defendant of her entitlements under Ian's Will; and
19.5were and are selfish and unfeeling towards the first defendant following Ian's death.
The third publication complained of is an email (which I will refer to as the second email) allegedly published by Lauren to six of the seven recipients of the first email. The second email attached the Abridged Document. The plaintiffs say that Mr Stanlake is liable for the republication of the Abridged Document by the second email in circumstances where he authorised or intended the Abridged Document to be republished or the republication by Lauren is the natural and probable consequence of the publication of the Abridged Document by Mr Stanlake to Lauren. At [24] of the statement of claim the plaintiffs plead that the second email meant and was understood to mean the same meanings as pleaded in [14] of the statement of claim where the plaintiffs plead the meanings they contend are carried by the Abridged Document.
The amended defence
In their amended defence the defendants admit that Mr Stanlake published the Abridged Document to Lauren but deny that it carries the meanings pleaded at [14] of the statement of claim or is defamatory of the plaintiffs. The defendants plead a number of affirmative defences in relation to the Abridged Document. First, the Abridged Document was published on an occasion of qualified privilege at common law and/or pursuant to Defamation Act 2005 (WA) s 30. Secondly, if the Abridged Document conveyed any of the imputations alleged by the plaintiffs then the circumstances of publication were such that the plaintiffs were unlikely to sustain any harm and Mr Stanlake has a defence pursuant to Defamation Act s 33. Thirdly, if the Abridged Document conveyed the meanings described at [14.1], [14.9] or [14.10] of the statement of claim then such meanings are true and Mr Stanlake has a defence of justification pursuant to the common law or Defamation Act s 25. Fourthly, if the Abridged Document conveyed the meanings alleged by the plaintiff or any defamatory meaning then it conveyed a common sting meaning that the plaintiffs had embarked upon and implemented a manipulative scheme to deprive Lauren of her entitlements under the will and other instruments affecting Ian's estate to their financial advantage and such meaning is true and the defendant has a defence of justification pursuant to the common law or Defamation Act s 25.
The defendants admit that Lauren sent the first email but do not admit that it was sent to the recipients pleaded by the plaintiffs. The defendants deny that the first email carries the imputations pleaded by the plaintiffs at [19] of the statement of claim. The defendants advance a number of affirmative defences. First, the first email was published on an occasion of qualified privilege at common law in that the matter was published as a reply to an attack upon the defendants. Secondly, the first email was published on an occasion of qualified privilege at common law and/or pursuant to Defamation Act s 30. Thirdly, if the first email conveyed a meaning defamatory of the plaintiffs then it conveyed the meaning that the plaintiffs have told lies to the recipients of the first email concerning Lauren and Ian's estate and such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. Fourthly, if the Abridged Document (which appears to be an erroneous reference to the first email) conveyed the meanings described at [19.2], [19.4] or [19.5] of the statement of claim then such meanings are true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25.
The defendants admit that Lauren sent the second email but not that it was sent to the recipients alleged by the plaintiffs. The defendants appear to intend to deny that the second email carried the imputations pleaded at [24] of the statement of claim, although they do not expressly say so. The defendants plead a number of affirmative defences in relation to the second email. First, the second email was published on an occasion of qualified privilege at common law in that it was a reply to an attack upon the defendants. Secondly, the second email was published on an occasion of qualified privilege at common law and Defamation Act s 30. Thirdly, if the second email conveyed any of the meanings alleged by the plaintiff then the Abridged Document conveyed a common sting meaning that the plaintiffs had embarked upon and implemented a manipulative scheme to deprive Lauren of her entitlements under the will and other documents governing Ian's estate to their financial advantage and the defendant has a defence of justification pursuant to the common law or Defamation Act s 25. Fourthly, if the second email conveyed the meanings alleged at [24.1], [24.5], [24.8], [24.9] or [24.10] of the statement of claim then such meanings are true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25.
The defendants do not admit that Mr Stanlake is liable for the republication of the Abridged Document in the second email. Alternatively, the defendants say that Mr Stanlake is not liable for any republication of the Abridged Document as his publication of matter to Lauren was upon an occasion of qualified privilege and/or any republication also occurred in circumstances of qualified privilege. Further, any such matter republished is true and subject to defences of justification.
The strike out application
The plaintiffs applied to strike out [15] ‑ [20], [24] ‑ [30], [34] ‑ [41] and [45] ‑ [46] of the amended defence. The plaintiffs' application is made on the grounds that those paragraphs disclose no reasonable defence, may prejudice, embarrass or delay the fair trial of the action or are otherwise an abuse of the process of the court.
Abuse of process
The plaintiffs' abuse of process argument is as follows. A large part of the defence relates to the conduct of the plaintiffs and their sister Claire and her husband Mr Phillip Davison (who I will refer to as Mr Davison). The defendants make serious allegations in respect of the defendants' conduct and in particular (vii) subjoined to [18] of their defence say that the plaintiffs' conduct constitutes undue influence and unconscionable conduct in respect of Lauren. However, the defendants seek no counterclaim and have not issued any fresh proceedings to obtain relief. It is an abuse of process to require the plaintiffs to respond in defamation proceedings to a justification plea that makes serious allegations in respect of the transactions entered into by the parties and others in circumstances where the defendants do not seek final relief in respect of those allegations. If future proceedings were brought in respect of the impugned transactions, the issue would effectively have to be re‑litigated with the correct parties joined.
Central to an abuse of process is the institution of proceedings, or the taking of some step in proceedings, by a party for a purpose or to effect an object beyond that which the legal process offers. The categories of abuse of process are not closed. It may be an abuse of process for a defendant to file a defence which makes allegations for a purpose other than to answer the claim made by the plaintiff. It will be a rare case where a pleading in a defence that is relevant to a plaintiff's claim is struck out as an abuse of process.
There is no evidence of, or from which the court may infer that, the defendants have raised matters in their defence for a collateral purpose, that is for some purpose other than answering the plaintiffs' claims. In the course of considering the plaintiffs' challenge to particular paragraphs of the defence I will consider the relevance of the pleas raised by the defendants. However, the plaintiffs have not established that in so far as the defence raises matters that may amount to undue influence or unconscionable conduct or otherwise give rise to a claim by the defendants (or either of them) that amounts to an abuse of the processes of this court.
Use of the word 'including'
The plaintiffs submit that a number of particulars in the defendants' defence are not sufficient and not pleaded with proper particularity. The plaintiffs say that some particulars which use the word 'including' lack proper particularity. I will make some general observations about the use of the word 'including' before considering each of the particulars which uses that word or similar words.
The vice of the word 'including' in a pleading is that it leaves open to the pleader to rely upon things not specified or not specified with sufficient particularity and therefore of which the opponent has had no or no proper notice. The word 'including' means containing part of a set. The idea that what is being spoken about is not limited to what is actually said is inherent in the meaning of the word 'including'. If it is clear from the context that although the allegations listed are part of a set, the pleader relies only on the allegations listed then the opponent knows the case he has to meet. If on the other hand the pleader lists only some allegations in a set whilst in effect reserving the right to rely on other unspecified allegations then the opponent does not know the case he has to meet. Like other aspects of pleading the answer will usually be found in considerations of practical justice rather than detailed analysis of the language employed.
Sufficiency and adequacy of particulars
The plaintiffs object to many of the particulars of the defences of triviality and qualified privilege and particulars of justification pleaded by the defendants. The plaintiffs say that the defendants' particulars have a tendency to cause prejudice, embarrassment or delay in the proceedings. The plaintiffs say that the defendants do not plead sufficient particulars or particulars with sufficient particularity to enable the plaintiffs to know the case that is put against them and to prepare their response to it. I will consider the sufficiency and adequacy of particulars generally before considering each of the plaintiffs' specific objections.
The Rules of the Supreme Court 1971 (WA) (RSC) O 20 r 13(1) requires that every pleading contain the necessary particulars of any defence. The purpose of particulars is to:
(1)inform the opponent of the case that will be required to be met at the trial;
(2)control the generality of the pleadings and define the issues of fact to be tried;
(3)avoid surprise at the trial; and
(4)enable the opponent to be prepared with the necessary evidence at the trial.
See Halsburys Law of Australia [325‑3610].
It is sometimes said that a statement of conclusion drawn from matters of fact not themselves alleged in the pleading is not a statement of a material fact: see eg Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109, 114. On the other hand, in Charlie Carter Pty Ltd v The Shop Distributive & Allied Employees' Association of Western Australia (1987) 13 FCR 413 at 481 French J said that a conclusion may constitute a material fact. In his Honour's view, the real issue where an objection is raised that a conclusion only is pleaded is whether the facts are pleaded at too greater a level of generality to allow the pleading to serve its intended purpose. The permissible level of generality at which material facts may be pleaded differs depending on the subject matter, but it must be consistent with the goal of defining the issues and informing the parties of the case to be met. In the ordinary case, an allegation of a conclusion without disclosing the primary facts on which the conclusion is based is likely to render the pleading objectionable.
The observations of French J in relation to the pleading of material facts may be applied to the giving of particulars. The permissible level of generality of particulars depends on the nature of the case and the allegation of which particulars are being given but the degree of particularity must be consistent with the object of informing the opponent of the case they have to meet and enabling them to know what evidence they should collect.
A defendant must give particulars of the matters on which they rely in support of a plea of justification. In Foley v Lord Ashcroft [2012] EWCA Civ 423 Pill LJ and Sharpe J said:
Particulars provided in support of a plea of justification must be both sufficient and pleaded with proper particularity. The former requirement is met if the (properly pleaded) particulars are capable of proving the truth of the defamatory meaning sought to be justified. The latter requirement is a factor to be judged not by the number of particulars provided, but by the pleading of a succinct and clear summary of the essential (and relevant) facts relied on, enabling a claimant to know the precise nature of the case against him, and providing him with sufficient detail so he can meet it [49].
Particulars and 'topics'
Counsel for the defendants, Mr MacLaurin, submitted that particulars of justification do not themselves indicate the outer limits of what may be proved. Rather, Mr MacLaurin submitted, they indicate topics upon which evidence may be led. Mr MacLaurin referred to the judgment of Hodgson JA in Hayson v John Fairfax Publications Pty Limited [2007] NSWCA 376 where his Honour said:
For my part I would accept that there could be circumstances where particulars fall so far short of being capable of supporting the truth of imputations that it could be justified to strike out imputations. However, the particulars do not themselves indicate the outer limits of what may be proved. They indicate, in effect, topics on which evidence may be led. But the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate [20].
The particulars of justification must identify the facts, matters and things that will be relied upon to prove the truth of the pleaded meaning. The particulars do not confine the defendants to leading evidence in the terms of the facts identified in the particular. For example, where a particular identifies an incident, the defendants will be entitled to lead evidence of the whole of the relevant circumstances making up that incident, including for example details of conversations, where different people were sitting and so on, whether or not such matters are specified in the particular. The remarks of Hodgson JA address the sufficiency of the particulars to sustain the defence that the imputation was justified. His Honour was addressing how the court should approach an argument that particulars of justification are not capable of proving the truth of an imputation. His Honour did not say anything about the separate question of the precision with which particulars must be stated. The remarks of Hodgson JA do not derogate from the principle that particulars of justification must conform to the requirement of precision ‑ the particulars must be sufficiently precise to inform the opponent of the case he has to meet and to enable him to collect evidence to meet it.
Paragraph 15 - Abridged Document - qualified privilege
At [15] of the their defence the defendants plead that Mr Stanlake provided the Abridged Document to Lauren on an occasion of qualified privilege at common law or pursuant to Defamation Act s 30.
The defendants plead in [15(a)] that the matter was published in the course of Mr Stanlake providing Lauren with information upon a subject Lauren had an interest or an apparent interest in receiving and at [15(b)] of their defence that the publication of the matter was, in all the circumstances, reasonable. That is a plea of statutory qualified privilege under Defamation Act s 30. The defendants give particulars of the plea. The plaintiffs submit that the particulars lack the necessary specificity in order for the plaintiffs to understand the case they are to meet.
A defendant relying upon the defence of qualified privilege under Defamation Act s 30 must give at least the following particulars:
(1)the subject on which information was given to the recipient in the course of which the defamatory matter was published and on which the recipient has an interest or apparent interest in having information;
(2)whether the defendant relies upon the recipient of the publication having an interest, or only an 'apparent' interest, in receiving information on the subject;
(3)where an 'apparent' interest in the recipients of the publication is relied upon, the reasonable grounds for the defendants' belief that those recipients had such an interest; and
(4)the conduct of the defendant in publishing the matter complained of which he contends was reasonable in the circumstances.
I find that the defendants' particulars of statutory qualified privilege are likely to prejudice, embarrass or delay the fair trial of the action. First, the defence does not properly plead whether Mr Stanlake relies upon Lauren having an interest or only an apparent interest in receiving information on the pleaded subject. Paragraph 15(a) pleads that Lauren had an interest or an apparent interest in receiving the information. The same formulation (interest or apparent interest) is repeated in particular (xiii). A defendant may plead facts or characterisations of facts in the alternative. But they should be separately pleaded. As I have said, where a defendant relies upon an 'apparent interest', the defendant must give particulars of the reasonable grounds for the defendants' belief that the recipients had such an interest. In so far as the defence relies upon Lauren having an 'apparent' interest, it does not identify, clearly or at all, the reasonable grounds for Mr Stanlake's belief that Lauren had such an interest. The plaintiffs and the court should not be left to trawl through the particulars to try and discern which of the particulars, if any, set out the reasonable grounds for Mr Stanlake's belief that Lauren had an apparent interest in receiving information on the subject.
Secondly, the defendants must clearly state the conduct of Mr Stanlake in publishing the matter complained of which they contend was reasonable in the circumstances. It is not clear what matters the defendants rely upon to establish that. Paragraph 15(b) states that the publication of the matter was, in all the circumstances, reasonable. Subjoined to [15(b)] are particulars. That suggests that all of the subjoined particulars are matters relied upon to establish that the conduct of Mr Stanlake in publishing the Abridged Document was reasonable in the circumstances. However, particular (xiv) states 'the publication of the Abridged Document was reasonable in all the circumstances given' and then follow four sub‑particulars. It is not clear whether the defendants rely only on those sub‑particulars to establish that Mr Stanlake's conduct in publishing the Abridged Document was reasonable or whether they rely upon all of the particulars subjoined to [15(a)] and [15(b)].
For those reasons [15] should be struck out. It is unnecessary to rule on the plaintiffs' objections to specific particulars of [15] to which the plaintiffs objected. However, in the interest of efficient case management it is convenient to do so.
The particulars in support of the statutory qualified interest defence say that the defendants had become aware that several persons in the social circles and/or the community in which they mixed had been given misinformation and were thereby prone to spreading that information. Particular (iii) says that the best particulars the defendants can provide at present are that the persons who had been given the misinformation included the alleged recipients of the first and second emails and the misinformation had also become known to 14 persons who are named in the particular. The persons who the defendants say they had become aware had been given the misinformation is indeterminate. However, it is not necessary for the particulars to identify the persons who the defendants had become aware had been given misinformation with any greater particularity. Mr Stanlake's defence that Lauren had an interest (or apparent interest) in receiving the information in the Abridged Document is that it would assist Lauren in correcting the record for those persons labouring under the misinformation. The defence relies on there being a substantial number of persons labouring under the misinformation but does not depend upon the number or identity of those persons.
The plaintiffs say that no detail is given in respect of the 'misinformation' that had allegedly been spread, how the 'misinformation' was spread or how the defendants became aware of it and it is not stated how the plaintiffs conveyed the 'misinformation'. The plaintiffs say that whether Lauren had an interest or apparent interest in receiving the Abridged Document is dependent on the nature of the misinformation that was allegedly spread. The plaintiffs say that without articulating the nature of the misinformation the plaintiffs cannot assess the defendants' respective interests in the Abridged Document.
The defendants say that the information is clearly and expressly set out at particular (b)(iv) which is:
A major aspect of the misinformation was that it was the first defendant who was challenging and seeking to change the terms of Ian's will and his testamentary intentions, so as to enrich herself to the detriment of Ian's children, and that the second defendant was coercing her to do so.
Mr MacLaurin submitted that in so far as the phrase 'a major aspect of' is objectionable, it can be removed and amended. I find that if the words 'a major aspect of' are removed, the nature of the 'misinformation' is sufficiently identified.
The particulars state that the Abridged Document constituted a considered articulation of the essential facts of the case from a trusted accountant, Mr Priest, who had relevant dealings with Ian and Ian's children. Particular (vii) is that Mr Priest had personal knowledge of Ian's testamentary intentions concerning Lauren and Ian's children and had dealt with them after Ian's death. Particular (viii) then states that the dealings described at (vii):
[I]ncluded meetings, correspondence and conversations concerning Ian's intentions, the effect of his will, the plaintiff's disagreement with the terms and effect of the will, issues in respect to the plaintiff's proposed management of the estate assets and [Lauren's] affairs and the plaintiff reporting to her upon the management of the estate and its assets.
The plaintiffs say that particular (viii) lacks sufficient detail because of the use of the word 'including'. The plaintiffs say that the dealings should be specified.
After some hesitation I have concluded that particulars (vii) and (viii) are sufficiently particularised. Particular (vii) says that Mr Priest had dealings with Ian's children, including Alistair, after Ian's death. The dealings are confined to dealings between Mr Priest and Ian's children. The phrase 'including Alistair' is redundant and appears to make the obvious point that the dealings include dealings with Alistair as well as dealings with Duncan and Claire. Particular (viii) states that the dealings between Mr Priest and Ian's children included meetings, correspondence and conversations concerning the matters being listed. The dealings are confined to meetings, correspondence and conversations although they may be broadly understood. For example, it would include telephone conversations, emails and other electronic communications. The subject of the meetings, correspondence and conversations is sufficiently identified to inform the plaintiffs of the case they have to meet and to enable them to collect evidence to meet it.
The plaintiff objects that particular (ix) is the plea of a conclusion or argument. That is true. However, the particular sufficiently informs the plaintiff of the defendants' contention so as to enable the plaintiffs to know the case they have to meet.
Particular (xiv)(A) is that Mr Stanlake 'believed on reasonable grounds that the contents of [the Abridged Document] were true and from a reliable source (Mr Priest), especially because it had been sent to [Lauren's] solicitors'. RSC O 20 r 13(1)(b) provides that where a party pleading alleges any condition of the mind of any person except knowledge, the party must give particulars of the facts on which the party relies. In this case the defendants have asserted not only that Mr Stanlake believed that the contents of the Abridged Document were true but that his belief was based on reasonable grounds. The defendants must, but have not, state the reasonable grounds on which Mr Stanlake held that belief. Without those particulars the plaintiffs do not know the case they have to meet and the evidence they should collect to meet it.
Paragraph 15(c) is that Mr Stanlake had a duty to convey such information to Lauren who had a corresponding interest in receiving such information and/or Mr Stanlake and Lauren had a common or corresponding interest in the subject matter of the Abridged Document. That is a plea of reciprocal duty and interest qualified privilege at common law. The defendants give particulars of their plea. Particular (i) is to repeat the particulars to [15(b)].
Particular (ii) is that 'the misinformation described above also applied to and affected Mr Stanlake'. The plaintiff objects that it is not clear how that allegation gives rise to a duty on Mr Stanlake to convey the information to Lauren. In response the defendants say that if the misinformation was adverse to Mr Stanlake as well ‑ but in a way that involved Lauren ‑ the relevant duty was to convey information that could be marshalled to rebut the misinformation. I would not have struck out particular (ii) if the 'misinformation' is properly described. However, as the particulars to [15(b)] and hence particular (i) to [15(c)] are to be struck out particular (ii) must also be struck out. As a consequence there are no particulars to [15(c)] and [15(c)] must be struck out.
I will strike out [15] of the defence document.
Paragraph 16 - the Abridged Document - triviality
At [16] of their defence the defendants plead that if the Abridged Document conveyed any of the imputations alleged by the plaintiffs then the circumstances of publication were such that the plaintiffs were unlikely to sustain any harm and Mr Stanlake has a defence pursuant to s 33 of the Defamation Act - the defence of triviality. The particulars given by Mr Stanlake are to repeat the particulars to [15].
I have decided to strike out [15] and the particulars to [15]. As a consequence of striking out [15] the particulars to [16] will be struck out and therefore [16] will be struck out.
Although it is not necessary to do so it is convenient to consider specific objections made by the plaintiffs to the defendants' particulars of [16].
The particulars given at [15] apart from (x) and (xi) are irrelevant to the plea of triviality at [16]. The particulars to [15] may be relevant to whether the contents of the Abridged Document are true, whether Mr Stanlake was justified in sending the Abridged Document to Lauren, whether Mr Stanlake and Lauren had a duty or interest in conveying or receiving the information in the Abridged Document and whether Mr Stanlake's conduct in sending the Abridged Document to Lauren was reasonable in the circumstances. However, those particulars are not relevant to whether or not the circumstances of the publication of the Abridged Document were such that the plaintiffs were unlikely to sustain any harm.
Paragraph 17 - the Abridged Document - justification
At [17] of their defence the defendants plead that if the Abridged Document conveyed the meaning described at [14.1] of the statement of claim, that is that the plaintiffs are greedy in respect of Ian's estate, then such meaning is true and Mr Stanlake has a defence of justification pursuant to the common law or Defamation Act s 25. The defendants give extensive particulars of their plea of justification. The plaintiffs say that the particulars of justification as read together, are vague and lack sufficient detail to support the plea.
Particular (c) is 'Iain's principal intention, and the purpose of his will, as manifested by it, was' and then follow sub‑particulars (i) ‑ (viii). Particulars (c)(vii) and (viii) are:
(vii)[Alistair] was made aware of the above and the reasons for it through, inter alia, Mr Priest, very soon after Ian's death and those matters were reiterated to [Alistair] during subsequent communications, including at a meeting of 12 May 2014 and
(viii)[Duncan] was made aware of these matters, and inter alia, through [Alistair] by his receipt of Ian's will, and through correspondence. Further particulars will be provided after discovery.
The plaintiffs say that these sub‑particulars are not related to the chapeau or introductory words of the particular. That observation is correct. The chapeau sets out Ian's principal intention and the purpose of his will. Sub‑particulars (vii) and (viii) refer to Alistair and Duncan being made aware of things. They should be separate particulars. Sub‑particulars (vii) and (viii) should be struck out.
Particular (e) is:
During Ian's lifetime, each of the children, including the plaintiffs, had received substantial gifts by way of money towards, or the equivalent of money's worth in assistance in, buying a house including [the three matters then set out].
The plaintiffs say that the word 'including' renders the particular uncertain. I disagree. The particular is that each of the children had received substantial gifts by way of money towards or the equivalent of money's worth in assistance in buying a house. The matters stated after the word 'including' (in the third line) are an elaboration upon the principal allegation. The plaintiffs also object to particular (e)(iii) which says that Ian and Lauren rented back off Alistair a house 'at a generous rate'. The usual meaning of paying a generous price is that the payer pays more than is strictly necessary or expected. After some hesitation I have concluded that the particular is adequate. The particular is that Ian and Lauren paid to Alistair more than would have been necessary or expected between people dealing at arm's length. That particular is sufficient to inform the defendants of the case they have to meet and enable them to collect evidence to meet it.
Particular (f) includes that the provision for the tax free income for Lauren was 'relatively modest and reasonable' and that Lauren was not and would not be expected to work after Ian's death. The plaintiffs object that the particular does not specify who did not and would not expect Lauren to work after Ian's death and what is meant by 'relatively modest'. In context, 'relatively modest' refers to the provision for tax free income being limited, not lavish or extensive having regard to the contribution that Lauren had made to the Craib Superannuation Fund. In its context a statement that Lauren was not and would not be expected to work after Ian's death refers to the expectations of Ian and Lauren and what would be reasonably expected by a reasonable person in the stated circumstances. The particular is adequate.
Particular (f)(ii) is that the plaintiffs have not asserted otherwise by way of any application under the Inheritance (Family and Dependants Provision) Act 1972 (WA). The particular may not carry much weight but it does not cause embarrassment. I will not strike it out.
The plaintiffs say that particulars (g), (h) and (i), are vague and not sufficiently particularised. I do not agree.
Particular (j) is deficient. In so far as it says that the plaintiffs had formed the view stated, that is the pleading of a condition of the mind and O 20 r 13(1)(b) requires that the defendants give particulars of the facts on which they rely. In so far as the particular uses the word 'including' that is embarrassing in its context.
The plaintiffs say that particular (k) is not sufficiently particularised. I disagree.
Particular (m) is that the effect of actions taken by the plaintiffs or with their approval or at their behest involved the matters then specified. The plaintiffs say that the effect of the word 'involved' is to introduce uncertainty and not inform them of the case they have to meet. I do not agree. In its context the word 'involved' sets out the effect of actions taken by the plaintiffs or with their approval or at their behest upon which the defendants rely. The plaintiffs are sufficiently informed of the case they have to meet.
Particular (n) also uses the word 'involved'. In its context that word does not introduce uncertainty. However, the particular refers to 'the GSEB monies' which are not otherwise identified. They should be.
The plaintiffs object that particular (p) fails to inform them of the case they have to meet. I do not agree.
Particular (q) [incorrectly labelled (i) in the amended defence] says that the purpose and effect of the transactions described was as set out. The plaintiffs object that the particular does not say who had the alleged purpose. I agree. The particular appears to differentiate between the 'purpose' and 'effect' of the transactions. The particular should state whose purpose is referred to.
Particulars (c)(vii) and (viii), (j), (n) and (q) of [17] should be struck out. I am not persuaded that the remaining particulars to [17] are not capable of proving the truth of the defamatory meaning sought to be justified. Accordingly, I will not strike out [17] other than the particulars to [17] which I have specified.
Paragraph 18 - Abridged Document - justification of common sting
The defendants plead that if the Abridged Document conveyed any defamatory meaning then it conveyed a common sting meaning that the plaintiffs had embarked upon and implemented a manipulative scheme to deprive Lauren of her entitlements under the will and other instruments affecting Ian's estate to their financial advantage and such meaning is true and the defendants have a defence of justification pursuant to the common law or s 25 of the Defamation Act. The defendants give particulars. Particular (i) repeats [17] and the particulars thereto. I assume that the defendants intend to adopt the particulars to [17] and not the separate defence pleaded in [17]. In so far as the defendants adopt the particulars to [17], the effect of striking out particulars (c)(vii) and (viii), (j), (n) and (q) to [17] is to strike out those particulars from [18].
The defendants give further particulars. Particular (ii) is that the plaintiffs portrayed the transactions and documents which they asked Lauren to enter into as being necessary in the interests of the whole Craib family when this was not the case and in fact were in the interests of the plaintiffs and Claire.
The particular could have been more eloquently drafted. It would have been clearer if the defendants had identified the 'transactions and documents which they asked the first defendant to enter into'. However, the 'transactions and documents' are those identified in the particulars to [17] which are repeated by particular (i) to [18]. Particular (ii) is sufficient.
Paragraphs (iii) and (iv) plead matters the plaintiffs knew. The plaintiffs say that the pleading is deficient in that it does not say how the plaintiffs allegedly knew the matters set out. Order 20 r 13(1) does not require a party pleading knowledge of any person to give particulars of the facts on which the party relies. In this case, the plaintiffs do not require such particulars to know the case they have to meet.
Particular (vii) is that the plaintiffs' conduct as described above constituted undue influence and unconscionable conduct in respect to Lauren and was done for their benefit rather than Lauren's benefit. Mr MacLaurin stated that the defendants will amend the particular by substituting the words 'involved unfair pressure and deception' for the words 'constituted undue influence and unconscionable conduct'. With that amendment the particular is sufficient to inform the plaintiffs of the case they have to meet and is not embarrassing.
I will not strike out [18] or the particulars to that paragraph.
Paragraph 19 - Abridged Document - justification of imputation 14.9
At [19] of their defence the defendants plead that if the Abridged Document conveyed the imputation at [14.9] of the statement of claim, that is, that the plaintiffs locked Lauren out of her second home, then such meaning is true and the defendant has a defence of justification pursuant to the common law or s 25 of the Defamation Act. The defendants give particulars of that justification. Particular (a) incorrectly refers to the first defendant when it is intended to refer to the first plaintiff. Otherwise, the particulars sufficiently inform the plaintiffs of the case they have to meet and the evidence they should collect to meet it.
Paragraph 20 - Abridged Document - justification of imputation 14.10
At [20] of their defence the defendants plead that if the Abridged Document conveyed the imputation set out at [14.10] of the statement of claim, that the plaintiffs deprived Lauren of access to her personal effects then such meaning is true and the defendants have a defence of justification pursuant to the common law or Defamation Act s 25. The defendants repeat [19] as particulars of justification. Again, I assume that the defendants intend to repeat the particulars of justification subjoined to [19] rather than the defence pleaded at [19].
The plaintiffs say that the particulars subjoined to [19] of the defence do not include any plea that Lauren kept any personal effects at the property. I will not strike out [20] of the defence or the particulars given. The pleading adequately informs the plaintiffs of the case they have to meet and does not cause any embarrassment.
Paragraph 24 - first email - qualified privilege
At [24] of their defence the defendants plead that if the first email conveyed any of the defamatory imputations alleged by the plaintiffs then it was published on an occasion of qualified privilege at common law in that the matter was published as a reply to an attack upon Lauren and Mr Stanlake. The defendants give particulars of that plea. The essence of the particulars is that the alleged recipients of the email had been given misinformation by or emanating from the plaintiffs or with their approval or knowledge about the defendants and the dealings regarding Ian's estate which was derogatory to Lauren and Mr Stanlake. The defendants repeat particulars (i) to (iv) subjoined to [15]. Those particulars give some information about the 'misinformation'.
The plaintiffs say that the particulars are bereft of any proper detail as to the content of the misinformation, when the misinformation was allegedly given to the recipients and when and how each of the alleged recipients had raised the matters the subject of the misinformation with the defendants. I have decided that [15] of the defence will be struck out. As a consequence the particulars to [24] do not support the plea of justification. However, if the particulars (i) to (iv) subjoined to [15] are incorporated into the particulars to [24], the particulars are adequate. The particulars sufficiently inform the plaintiffs of the case they have to meet and enable them to gather evidence to meet it.
Mr Bennett noted that particular (v) refers to the plaintiffs when it should presumably refer to the defendants.
Paragraph 24 will be struck out as a consequence of striking out [15].
Paragraph 25 - first email - qualified privilege
At [25] of their defence the defendants plead that if the first email conveyed the defamatory imputations alleged by the plaintiffs then it was published on an occasion of qualified privilege at common law or under Defamation Act s 30. The pleading follows the scheme of the pleading of the defence of qualified privilege in [15] of the defence. Paragraphs 25(a) and 25(b) plead that the matter was published in the course of Lauren providing the recipient with information upon a subject Lauren had an interest or an apparent interest in receiving and the publication of the matter was in all the circumstances reasonable. The particulars given commence with the repetition of [15], by which I assume the defendants intend to refer to the particulars subjoined to [15(a)] and [15(b)] or possibly additionally the particulars subjoined to [15(c)]. Paragraph 25 should be struck out for the same reasons as [15].
Paragraph 26 - first email - justification
At [26] the defendants plead that if the first email conveyed a meaning defamatory of the plaintiffs then it conveyed the meaning that the plaintiffs have told lies to the recipients of the first email concerning Lauren and Ian's estate and such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. The particulars of justification given repeat [24(i)] and [15(i)] to [15(iv)] 'in respect of the misinformation'. The further particulars are that the defendants knew the misinformation was false and repeat [17].
The plaintiffs say that the particulars lack specificity and repeat their arguments in relation to [24(i)] and [15(i)] to [15(iv)].
I have decided that [15] should be struck out and as a consequence the particulars to [26] are not capable of supporting the plea of justification and [26] must be struck out.
Paragraph 27 - first email - imputation 19.2 justified
At [27] of their defence the defendants say that if the first email (incorrectly referred to as the Abridged Document at [27] of the defence) conveyed the meaning described at [19.2] of the statement of claim, that is that the plaintiffs are greedy in respect of Ian's estate, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [17]. Presumably the defendants intend to repeat the particulars subjoined to [17] and not the defence pleaded in [17].
I have decided that particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17] should be struck out. I am not satisfied that the remaining particulars are not capable of proving the truth of the defamatory meaning sought to be justified. Paragraph 27 will not be struck out.
Paragraph 28 - first email - imputation 19.4 justified
At [28] of their defence the defendants plead that if the first email conveyed the meaning described at [19.4] of the statement of claim, that is the plaintiffs deliberately deprived Lauren of her entitlements under Ian's will, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [17] and [18], by which I assume they intend to repeat the particulars subjoined to [17] and [18] and not the defences advanced in those paragraphs. I have decided that particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17] should be struck out. However, I am not satisfied that the remaining particulars are not capable of proving the truth of the defamatory meaning sought to be justified. Paragraph 28 will not be struck out.
Paragraph 29 - first email - imputation 19.5 justified
At [29] of their defence the defendants plead that if the first email conveyed the meaning described at [19.5] of the statement of claim, that the plaintiffs were and are selfish and unfeeling towards Lauren following Ian's death, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [17] and [18]. I have decided that particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17] should be struck out. I am not satisfied that the remaining particulars are not capable of proving the truth of the imputations sought to be justified. Paragraph 29 will not be struck out.
Paragraph 30 - second email - publication
At [30] of their defence the defendants plead that save as to not admit the time the email was sent or the recipients or attachment, the defendants admit that Lauren sent an email on 7 September 2017 under the subject line 'Fwd: The Truth' but otherwise does not admit [20] of the statement of claim. At [20] of the statement of claim the plaintiffs pleaded that on 7 September 2017 at or about 6.33 pm Lauren published by forwarding to six of the seven recipients of the first email an email (the second email) attaching the Abridged Document under the subject line, 'Fwd: The Truth'.
The plaintiffs object that the admission that Lauren sent the email but the non‑admission of the balance of [20] of the statement of claim is bad at law as a pleading. The plaintiffs say that the admission of sending must have attached to it particulars as to whom it was sent. The defendants say that there is nothing inconsistent or bad at law in admitting that an email was sent but not admitting publication at law, that is receipt and reading of an email.
Paragraph 30 of the defence is embarrassing. It is not clear whether the defendants admit that Lauren sent an email on 7 September 2017 under the subject line 'Fwd: The Truth' but do not admit that she sent them to the persons alleged in [20] of the statement of claim or the defendants admit that Lauren sent the email to those persons but does not admit that they received or read the email. Secondly, if the defendants plea is that Lauren sent the email to persons other than the persons named in [20] of the statement of claim then the plaintiffs are entitled to particulars of that positive assertion, that is to particulars of the email the defendants say they sent including the persons or email addresses to which they were sent.
Paragraph 30 will be struck out.
Paragraph 34 ‑ second email - qualified privilege
At [34] of their defence the defendants plead that if the second email conveyed any of the defamatory imputations alleged by the plaintiff then it was published on an occasion of qualified privilege at common law in that the matter was published as a reply to an attack upon the defendants (incorrectly referred to as the plaintiffs in [34] of the defence). By way of particulars the defendants repeat [24] of the defence, by which I assume they intend to repeat the particulars subjoined to [24] not the defence there pleaded.
I have decided to strike out [24] of the defence. As a consequence, [34] will be struck out.
Paragraph 35 - second email - qualified privilege
At [35] of their defence the defendants plead that if the second email conveyed any of the defamatory imputations alleged by the plaintiffs then it was published on an occasion of qualified privilege at common law or pursuant to Defamation Act s 30. The pleading follows the scheme of the pleading of the defence of qualified privilege in [15] and [25] of the defence. Paragraphs 35(a) and 35(b) plead that the matter was published in the course of Mr Stanlake providing recipients with information upon a subject Lauren had an interest or an apparent interest in receiving and the publication of the matter was in all the circumstances reasonable. The particulars given are the particulars to [25]. Paragraph 35(c) pleads that Lauren had a duty to convey such information to the recipients who had a corresponding interest in receiving such information and/or Lauren or the recipients had a common or corresponding interest in the subject matter of the publication. The particulars given are to repeat the particulars to [25(c)] which in turn repeated the particulars to [25(a)] and [25(b)].
Paragraph 35 should be struck out for the same reasons as [15] and [25].
Paragraph 36 - second email - justification
At [36] of their defence the defendants plead that if the second email conveyed any meanings alleged by the plaintiffs then the Abridged Document conveyed a common sting meaning that the plaintiffs had embarked upon and implemented a manipulative scheme to deprive Lauren of her entitlements under the will and other documents governing Ian's estate to their financial advantage and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. The particulars of justification are to repeat [18] and the particulars thereto. I have decided that some of the particulars to [18] should be struck out. However, I am not satisfied that the remaining particulars to [18], which are repeated as particulars to [36], are not capable of proving the truth of the defamatory meaning sought to be justified. Paragraph 36 will not be struck out.
Paragraph 37 - second email - justification of imputation 24.1
At [37] of their defence the defendants plead that if the second email conveyed the meaning alleged by the plaintiffs at [24.1] of the statement of claim, that the plaintiffs are greedy in respect of Ian's estate, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. The particulars of justification are to repeat [17]. I have decided that particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17] should be struck out. However, I am not satisfied that the remaining particulars to [37] are not capable of proving the truth of the imputation sought to be justified. Paragraph 37 will not be struck out.
Paragraph 38 - second email - justification of imputation 24.5
At [38] of their defence the defendants plead that if the second email conveyed the meaning described at [24.5] of the statement of claim, that the plaintiffs deprived Lauren of independent advice so as to take advantage of her, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. The particulars of justification are to repeat [17] and [18(i)] to (vi).
I have decided to strike out particulars (c)(vii) and (viii), (j), (n), (m) and (q) subjoined to [17] and parts of the particulars to [18]. I am not satisfied that the remaining particulars to [38] are not capable of proving the meaning sought to be justified. Paragraph 38 will not be struck out.
Paragraph 39 - second email - justification of imputation 24.8
At [39] of their defence the defendants plead that if the second email conveyed the meaning described at [24.8] of the statement of claim, that the plaintiffs deliberately deprived Lauren of her entitlements under Ian's will, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [17] and [18]. I have decided that parts of the particulars to [17] and [18] should be struck out. I am not satisfied that the remaining particulars are not capable of proving the meaning sought to be justified. Paragraph 39 will not be struck out.
Paragraph 40 - second email - justification of imputation 24.9
At [40] of their defence the defendants plead that if the second email conveyed the meaning described at [24.9] of the statement of claim, the plaintiffs forced Lauren out of her second home, then such meaning is true and Lauren has a defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [19]. The particulars are sufficient. I will not strike out [40].
Paragraph 41 - second email - justification of imputation 24.10
At [41] of their defence the defendants plead that if the second email conveyed the meaning described at [24.10], the plaintiffs deprived Lauren of access to her personal effects, of the statement of claim then such meaning is true and Lauren has the defence of justification pursuant to the common law or Defamation Act s 25. As particulars of justification the defendants repeat [20] of their defence. I am not satisfied that the particulars are not capable of proving the truth of the meanings sought to be justified. Paragraph 41 will not be struck out.
Paragraph 45 - liability of Mr Stanlake for republication of Abridged Document
At [45(a)] of their defence the defendants plead that Mr Stanlake is not liable for any republications of the Abridged Document because Mr Stanlake's publication of matter to Lauren was upon an occasion of qualified privilege and/or where any republications also occurred in circumstances of qualified privilege for the reasons set out at [15]. The defendants give particulars which are to repeat [15], [16], [24] and [15]. I presume that the second reference to [15] is intended to be a reference to [25]. I have decided to strike out [15], [16], [24] and [25]. As a consequence [45(a)] will be struck out.
At [45(b)] the defendants plead that any such matter republished is true and subject to the defence of justification. By way of particulars Mr Stanlake repeats [17], [18], [19], [20], [26], [27], [28], [29], [36], [37], [38], [39], [40] and [41]. I have decided to strike out [26] and some of the particulars to [17] and [18]. I am not satisfied that the remaining particulars are not capable of proving the truth of the meanings sought to be justified. Paragraph 45(b) will not be struck out.
Paragraph 46 - alleged aggravating conduct
At [46] of the defence the defendants deny [28] of the statement of claim which alleges that Lauren's publication of the first and second emails was and her conduct has been improper, unjustifiable and lacking in bona fides in a manner which has aggravated the hurt, damage and distress suffered by the plaintiffs.
The plaintiffs say that the plea in [46(b)(iii)] of the defence is inadequately pleaded. Paragraph 46(b)(iii) of the defence responds to [28.1.2] of the statement of claim. Paragraph 28.1.2 of the statement of claim says that the second email contains the following factual error:
An allegation that the children 'had her resign as a trustee, and appoint a company with the children as directors. Again in effect causing … to lose control of the farm' in circumstances where [Lauren] is a director and shareholder of the trustee company.
In response the defendants plead at [46(b)] that the allegation that Lauren had been made to take actions which resulted in her losing control of the farm was not materially incorrect in substance and in fact because:
(i)as sole trustee of the Other Craib Trust she had control over the affairs of the trust;
(ii)as joint trustee of the Wychwood Trust her joint agreement was required for decisions of the trust while as a shareholder and director of a trustee company; and
(iii)her joint agreement is no longer required, which was the object of causing [Lauren] to resign as trustee and replacement by a corporate trustee.
The paragraph is not embarrassing. It is tolerably clear that the defendants' pleading is that the children caused Lauren to resign as trustee and be replaced by a corporate trustee with the object of removing the requirement of Lauren's joint agreement to matters affecting the affairs of the trust being removed and that has been achieved because her joint agreement is no longer required. I will not strike out [46].
Conclusion
I have decided to strike out [15], [16], [24], [25], [26], [30], [34] and [35] and [45(a)] of the defence and to strike out particulars (c)(vii) and (viii), (j), (n) and (q) subjoined to [17]. The defendants will have leave to re‑plead.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO LE MIERE J13 APRIL 2018
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