Craib v Craib
[2018] WASC 110
•13 APRIL 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: CRAIB -v- CRAIB [2018] WASC 110
CORAM: LE MIERE J
HEARD: 21 FEBRUARY 2018
DELIVERED : 13 APRIL 2018
FILE NO/S: CIV 2786 of 2017
BETWEEN: ALISTAIR DESMOND CRAIB
Plaintiff
AND
LAUREN JILL CRAIB
Defendant
Catchwords:
Procedure - Pleadings - Strike out application - Application to strike out paragraphs of defence - Whether reasonable defence is disclosed
Defamation - Defences - Triviality - 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:
| Plaintiff | : | Mr M L Bennett |
| Defendant | : | Mr J D MacLaurin |
Solicitors:
| Plaintiff | : | Bennett + Co |
| 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
Trade Practices Commission v David Jones (Aust) Pty Ltd (1985) 7 FCR 109
Warren v Random House Ltd [2009] QB 600
LE MIERE J:
Summary
The late Ian Craib (who I will refer to as Ian) had three children ‑ the plaintiff, 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). The defendant, Lauren Craib (who I will sometimes refer to as Lauren), was the second wife of Ian, having married Ian on 28 October 1996.
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 and other property 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. Differences have arisen between Lauren on the one hand and Alistair on the other hand in relation to the disposition of Ian's estate.
In this action Alistair says that Lauren posted on the social media platform Pinterest material which is defamatory of him. Lauren has filed an amended defence in which, in addition to denying or not admitting elements of the claims against her, she puts forward affirmative defences of justification, qualified privilege and triviality. Alistair has applied to strike out paragraphs of the amended defence on the grounds that they 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.
For the reasons which follow [21], [22], [25] and [28] of the amended defence should be struck out with leave to re‑plead.
Alistair's claim
Alistair pleads that Lauren posted defamatory material on Pinterest, that Alistair is identifiable as the subject of the defamatory material and that the defamatory material was downloaded by, and thereby published to, persons other than Alistair. The two publications complained of consist of an image and text which Alistair calls the 'Alistair to a Tee' image and an image and text which Alistair calls the 'Alistair Again' image. Alistair says that each of the images gives rise to imputations defamatory of him in its natural and ordinary meaning. Further, Alistair says that by reason of extrinsic facts known to persons who downloaded the images each of them gives rise to imputations defamatory of him by way of true innuendo.
In [25] of his statement of claim Alistair says that the 'Alistair to a Tee' image in its natural and ordinary meaning meant and was understood to mean that Alistair:
25.1is a narcissistic sociopath;
25.2is a narcissistic sociopath in his dealings with Lauren;
25.3reacts poorly to negative feedback in his dealings with Lauren;
25.4is the type of person who may react violently to receiving negative feedback; and
25.5has previously reacted violently after receiving negative feedback from others.
At [26] of his statement of claim Alistair says that the 'Alistair Again' image in its natural and ordinary meaning meant and was understood to mean that Alistair:
26.1is a narcissist;
26.2is a narcissist in his dealings with Lauren; and
26.3is ungrateful in respect of the acts that Lauren has done for his benefit in the past.
At [28] of his statement of claim Alistair pleads that some persons to whom the Pinterest images were published knew extrinsic facts and to those persons the 'Alistair to a Tee' image meant and was understood to mean that:
28.1Alistair is a narcissistic sociopath in his dealings with Lauren in respect of Ian's estate;
and the 'Alistair Again' image meant and was understood to mean that:
28.2Alistair is a narcissist in his dealings with Lauren in respect of Ian's estate.
Amended defence
In her amended defence, Lauren does not admit that she posted the material alleged by Alistair or that the images were viewed by anyone. Lauren denies that the images are defamatory of Alistair or that they give rise to the imputations pleaded by Alistair.
Lauren pleads three defences that apply if the 'Alistair to a Tee' image was published as Alistair alleges and contain any defamatory meanings. First, the circumstances of publication were such that the plaintiff was unlikely to sustain any harm ‑ the defence of triviality under s 33 of the Defamation Act 2005 (WA). Secondly, the image conveyed the common sting meaning that Alistair exhibited the qualities of a narcissistic sociopath, including a strong reaction to and an inability to handle negative feedback or criticism and the need for constant praise and deference from other people and that meaning is true ‑ the defence of justification under the common law or s 25 of the Defamation Act. Thirdly, imputations 25.3 ‑ 25.5 are true and Lauren has a defence of justification under the common law or s 25 of the Defamation Act.
Lauren pleads two defences that apply if the 'Alistair Again' image was published as alleged by Alistair and contained any defamatory meanings. First, the circumstances of publication were such that Alistair was unlikely to sustain any harm - the defence of triviality. Secondly, the image conveyed the common sting meaning that the plaintiff exhibited qualities of a narcissist in his dealings with Lauren including by being ungrateful for all Lauren has done for him in the past and that meaning is true ‑ the defence of justification.
Lauren pleads that if the images conveyed defamatory meanings by way of a true innuendo as alleged by Alistair, such images conveyed the common sting meaning that Alistair exhibited qualities of a narcissist in his dealings with Lauren including by being ungrateful for all Lauren had done for him in the past and that meaning is true ‑ the defence of justification.
The strike out application
The plaintiff applied to strike out [20], [21], [22], [24], [25] and [28] of the amended defence on the grounds that those paragraphs disclose no reasonable defence and are an abuse of process. On the hearing of the strike out application counsel for Lauren, Mr MacLaurin, foreshadowed proposed amendments to the defence in response to some of the plaintiff's objections. Lauren subsequently filed a minute of proposed further amended substituted defence (defendant's minute) which incorporated the foreshadowed amendments. I will consider Lauren's defence as if it had been amended in accordance with the defendant's minute.
Counsel for the plaintiff, Mr Bennett, accepted that some but not all of the foreshadowed amendments cured the pleading faults of which the plaintiff complained. Mr Bennett addressed the defendant's foreshadowed defence in the defendant's minute. In doing so Mr Bennett extended the grounds of the strike out application to submit that parts of the defence may prejudice, embarrass or delay the fair trial of the action.
The plaintiff objected to several paragraphs of the defence on the ground that they used the word 'including' which renders the pleading imprecise and unclear. Both counsel made submissions about the use of the word 'including' in a pleading. I will therefore make some general observations about the use of the word 'including' in a pleading before considering the use of that word, or similar words, in specific paragraphs of the defence.
Use of the word 'including'
The vice of the word 'including' in a pleading is that it leaves it 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 of particulars
The plaintiff objects to many of the particulars of the defence of triviality and particulars of justification pleaded by the defendant. The plaintiff says that the defendant's particulars have a tendency to cause prejudice, embarrassment or delay in the proceedings. The plaintiff says that the defendants do not plead sufficient particulars or particulars with sufficient particularity to enable the plaintiff to know the case that is put against him and to prepare his response to it. I will consider the sufficiency and particularity of particulars generally before considering each of the plaintiff's 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 418 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 exposure of 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 he has to meet and enable him to know what evidence he should collect.
A defendant must give particulars of the matters on which they rely in support of the 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].
Defence paragraph 20 - 'Alistair to a Tee' image - triviality
Lauren does not admit that the 'Alistair to a Tee' image was published in the manner, and contained any defamatory meanings, as alleged by Alistair but at [20] of her defence pleads that if it was so published and contained defamatory meanings, then the circumstances of publication were such that Alistair was unlikely to sustain any harm and Lauren has a defence pursuant to Defamation Act s 33. Defamation Act s 33 creates the defence of triviality. It is a defence to the publication of defamatory matter if the circumstances of publication were such that the plaintiff was unlikely to sustain any harm.
Lauren states the facts said to give rise to the defence in particulars subjoined to [20] of her defence. The particulars are that any publication was to a very confined number of persons and that such persons knew Alistair and Ian and that there were issues between Lauren and Alistair, amongst other things, in relation to Ian's estate. I will refer to those facts as the family relationship facts.
Alistair says that the defence does not identify to whom the 'Alistair to a Tee' image was published yet pleads knowledge of them and at particular (d) pleads that any recipient of the publication that would identify Alistair as the subject of the publication knew the family relationship facts. Further, Alistair says the particulars are too vague to adequately support the defence.
Lauren's pleading concerning the persons to whom the image was published is as follows. Lauren denies that the image was downloaded and read by persons other than Alistair. In the alternative, she says that the image was downloaded and read only by persons who knew the family relationship facts or in the further alternative the only persons who downloaded and read the material and identified Alistair as the subject of the material knew the family relationship facts. Each of those pleas is a legitimate conditional plea. It is not necessary that the defendant identify the persons who downloaded the material and knew the family relationship facts ‑ beyond stating that they are the persons, if any, who the plaintiff proves downloaded and read the material. The particulars are stated with sufficient particularity to enable the plaintiff to know the precise nature of the case against him and provide him with sufficient details so he can collect evidence to meet it.
There may be cases where the evidence shows that no serious reputational harm has been caused or is likely for reasons unrelated to the meaning conveyed by the defamatory statement complained of. It is possible that the defence will be made out that the number of publishees was very limited and no one thought any less of the plaintiff by reason of the publication. I am not satisfied that the facts pleaded in [20] of the defence are not capable of satisfying the elements required to make out the defence of triviality. I will not strike out [20] of the defence.
Paragraph 21 - 'Alistair to a Tee' image - justification
At [21] of her defence Lauren pleads that the 'Alistair to a Tee' image conveyed the common sting meaning that:
(a)the plaintiff exhibited the qualities of a narcissistic sociopath, including a strong reaction to and an inability to handle negative feedback or criticism, and a need for constant praise and deference from other people; and
(b)such meaning is true.
Alistair says that the use of the word 'including' rendered the imputation unclear. In the defendant's minute Lauren has substituted the word 'being' for the word 'including'. The proposed amendment overcomes the plaintiff's objection. The foreshadowed pleaded meaning is that the plaintiff exhibited only the qualities of a narcissistic sociopath specified, that is a strong reaction to and an inability to handle negative feedback or criticism and a need for constant praise and deference from other people.
The plaintiff submits that the 'Alistair to a Tee' image is not capable of giving rise to the meaning pleaded by the defendants in the defendant's minute.
A defendant may contend that apparently separate allegations in a publication are no more than variants on a generalised theme, and that the generalised allegation can be proved to be substantially true. The seemingly separate allegations are said to possess a 'common sting'. A defendant is entitled to justify a common sting derived from parts of a publication, taken as a whole, in so far as they are relevant to the meaning of the words complained of and to the sting of the alleged libel: Gatley on Libel and Slander (12th ed, 2013) [11.12] citing Warren v Random House Ltd [2009] QB 600 [103] per Sir Anthony Clarke MR. The question of whether the seemingly separate allegations may be treated as possessing a common sting is one of fact and degree. A defendant must specify the defamatory meaning he or she intends to justify.
The 'Alistair to a Tee' image text consists of four sentences. The first sentence identifies the main idea of the pin or image, what it is about: a narcissistic sociopath reacts strongly and sometimes even violently to negative feedback. The third sentence elaborates on that idea, stating that a narcissistic sociopath is unable to tolerate criticism and needs constant praise, as well as deference from other people. The fourth sentence says that many narcissistic sociopaths present themselves in the best light possible and are able to easily charm others to gain their trust. The image is accompanied by the comment 'OMG … Alistair to a Tee!' On the face of it, the meaning conveyed by the comment is that the image text describes Alistair exactly.
The defendant's pleading is that the image text and comment convey the meaning that Alistair exhibited the qualities of a narcissistic sociopath, of reacting strongly to and being unable to handle negative feedback or criticism, and needing constant praise and deference from other people. That meaning follows the words of the first and third sentences except that it omits the statement in the first sentence that a narcissistic sociopath sometimes reacts violently to negative feedback. I am not persuaded that the image text and comment are incapable of the meaning pleaded by the defendants. Whether or not they do bear the meaning is a matter for trial.
The plaintiff submits that many of the particulars of justification pleaded by the defendants are not relevant or inadequately particularised.
Particular (i) is:
The plaintiff has reacted strongly to negative feedback and has shown an inability to handle criticism in both his personal and professional life.
On one view that particular states facts but it is at such a high level of generality that it fails to inform the plaintiff of the case he has to meet. The particular is really nothing more than a repetition of the libel that the defendant seeks to justify. It is embarrassing. The particulars must give appropriate details of the facts and circumstances which the defendant relies on to justify the libel. In the usual case the particulars must state facts not expressions of opinion or arguments. If particular (i) was permitted to stand the plaintiff would not have any notice of the acts which the defendants say he committed and in relation to which he may seek to collect evidence and the court would not be able to control the evidence so as to ensure a fair trial.
Particular (ii) is that as a sportsman, and when in his final years in cricket and football matches at Christ Church Grammar School, the plaintiff displayed the attributes and behaviour set out in subparagraphs (A ‑ D) of the particular. This particular fails to state the facts relied on with sufficient particularity. The matters set out in the particular are conclusions or facts stated at such a high level of generality that they do not enable the plaintiff to know the precise nature of the case against him and provide him with sufficient detail so he can collect evidence to meet it.
Particulars (c) to (g) and (n) relate to the plaintiff's reaction when informed of the contents of Ian's will. Those particulars are adequate, except for particular (g). Particular (g) is:
[T]he plaintiff then embarked upon schemes to alter the arrangements under his father's will to enhance his position and diminish the defendants' interests, the plaintiff considering that he was in a position to determine the defendant's reasonable entitlements, regardless of his father's wishes.
The defendant must particularise the 'schemes'. Furthermore, the plea that the plaintiff considered that he was in a position to determine the defendant's reasonable entitlements is a pleading of a 'condition of the mind of any person' and RSC O 20 r 13(1)(b) requires the defendant to give particulars of the facts on which she relies to establish that state of mind.
Particular (h) says that the plaintiff has spread or caused misinformation to be spread to several people in the social circles and/or the community in which he and the defendant mixed 'including' close acquaintances of his father, Ian and the defendant and that those people 'include' the people there named. Particular (i) and (k) state the nature of the misinformation. However, the particulars do not say how, when, where or how the plaintiff spread the misinformation or to whom other than to say that it was to several people in the social circles and/or community in which he and the defendant mixed 'including' close acquaintances of his father and Ian and that those people 'include' those named. The particular is not sufficiently precise to inform the plaintiff of the case he has to meet and give him a fair opportunity to collect evidence to respond to it.
Particular (j) is that the dissemination of the misinformation was 'calculated' to enhance the plaintiff's reputation. That is a pleading of a condition of the mind and must be accompanied by particulars of the facts on which the defendant relies as required by RSC O 20 r 13(1)(b).
Particular (l) refers to the plaintiff writing self‑serving and disingenuous correspondence to the defendant and others 'including' his relatives. The particular fails to inform the plaintiff of the persons to whom he is alleged to have written the self‑serving and disingenuous correspondence and fails to adequately inform him of the case he has to meet and give him a fair opportunity to collect evidence to respond to it.
Particular (n) is that the plaintiff has constantly talked about himself repeatedly and obsessively in the presence of his late father Ian and the defendant on the subjects there set out. That particular is not relevant to proving the truth of the meaning pleaded by the defendant. That meaning is that the plaintiff exhibited a strong reaction to and an inability to handle negative feedback or criticism and a need for constant praise and deference from other people. That the plaintiff was self‑obsessed in the manner set out in particular (m) does not tend to prove the alleged meaning. Furthermore, the particular is at too high a level of generality.
Particular (o) is that the plaintiff has failed to make an effort at family functions to make such occasions enjoyable for the group but rather has acted sulkily, self‑centredly, declined to participate in conversation and generally been unpleasant company. That is not relevant to proving the meaning sought to be justified. The particular says nothing about the plaintiff strongly reacting to and being unable to handle negative feedback or criticism or his need for constant praise and deference from other people.
Particular (p) is that the plaintiff has a bad temper when confronted with situations where what he wants or has demanded is denied or when things have not gone his way. The particular lacks sufficient particularity. It does not inform the plaintiff of the essential and relevant facts relied on so as to enable him to know the case against him and provide him with sufficient details so he can meet it. Particular (q) seeks to elaborate upon the allegation that the plaintiff has a bad temper by saying that he has manifested it in incidents 'such as' open arguments and angry behaviour towards 'inter alia' his father, his wife and siblings 'such as' the matters then set out. The qualifications 'such as' and 'inter alia' have the effect that the defendant is merely giving examples of incidents in which the plaintiff has manifested a bad temper and some of the people towards whom he has directed angry behaviour but the defendant does not restrict her case to those incidents or those persons. Particulars (p) and (q) do not provide a succinct and clear summary of the essential and relevant facts relied on to enable the plaintiff to know the precise nature of the case against him and provide him with sufficient detail so he can collect evident to meet it.
Particular (r) is conclusionary. It fails to state the primary facts ‑ that is the occasions on which it is said the plaintiff acted in the way alleged.
Particular (t) is that the plaintiff was charged with criminal damage at Sydney Casino when he was refused entry to the casino or otherwise had his conduct at the casino questioned by authorities. The particular fails to state the alleged conduct of the plaintiff with sufficient particularity to show that it is relevant to proving the truth of the meaning alleged by the defendants.
Particulars (i), (ii), (g), (h), (i), (j), (k), (l), (m), (n), (o), (p), (q), (r) and (t) of the particulars of justification subjoined to [21] are either not relevant or contain insufficient details to enable the plaintiff to know the precise nature of the case against him and provide him with sufficient details so that he can collect evidence to meet it. The remaining particulars are not sufficient to be capable of proving the truth of the meaning sought to be justified. Accordingly, [21] should be struck out.
Paragraph 22 - justification - imputations [25.3] ‑ [25.5] ('Alistair to a Tee' image)
The imputations pleaded at [25.3] to [25.5] of the statement of claim are:
25.3the plaintiff reacts poorly to negative feedback in his dealings with the defendant;
25.4the plaintiff is the type of person who may react violently to receiving negative feedback; and
25.5the plaintiff has previously reacted violently after receiving feedback from others.
The defendant pleads that if the 'Alistair to a Tee' image conveyed those meanings then such meanings are true. The defendant gives particulars of justification. The particulars are to repeat [21] of the defence and the particulars thereto. Presumably, the defendant intends to repeat the particulars to [21] not the alleged common sting meaning pleaded in [21].
The plaintiff says that many of the particulars pleaded at [21] are irrelevant to the plea at [22]. For example, very few of the particulars to [21] disclose any reaction, violent or otherwise, to 'negative feedback'.
The defendant says that in contending that the particulars are irrelevant the plaintiff impermissibly seeks to confine and determine at this interlocutory stage what the tribunal of fact may find is the import and content of such terms as 'feedback' and 'negative feedback' having regard to the full terms of the alleged meaning and of the published matter.
The defendant's reference to what the tribunal of fact may find is the import and content of terms such as 'feedback' and 'negative feedback' is misconceived. The meaning of 'feedback' and 'negative feedback' in the 'Alistair to a Tee' image is a matter to be determined at trial. The plaintiff has pleaded that the material published bears the meanings pleaded at [25.3] to [25.5] of the statement of claim. The plaintiff says that, in relation to imputation [25.3], the publication means that the plaintiff reacts poorly to negative feedback in his dealings with the defendant. In pleading the imputation the defendant uses the word 'feedback' in its natural and ordinary or usual dictionary meaning, that is, a critical or corrective response or reaction (Oxford Online Dictionary). That is the meaning which the plaintiff says the publication bears. That is the meaning which the defendant seeks to justify by [21] of her defence. The questions at trial will be whether or not the publication bears that meaning and, if so, whether the defendant has proved it to be true. The defendant's particulars must be relevant to that meaning.
Particular (ii)(B) refers to the plaintiff's reaction to unfavourable outcomes, not his reaction to a critical or corrective response or reaction. Particular (g) refers to the plaintiff embarking upon schemes to alter the arrangements under his father's will not to any reaction to a critical or corrective response or reaction. Particulars (h) to (k) refer to the plaintiff spreading misinformation but it is not said that he did so in reaction to any critical or corrective response or reaction he had received. Particular (l) refers to the plaintiff writing self‑serving and disingenuous correspondence to the defendant but it is not said that he did so in reaction to any negative feedback, that is any critical or corrective response or reaction received by him. Particular (n) refers to the plaintiff constantly talking about himself repeatedly and obsessively. That does not refer to any reaction to negative feedback from others, that is any critical or corrective response or reaction received by the plaintiff. Particular (o) does not refer to any reaction to any negative feedback. Particular (p) refers to the plaintiff's reaction when what he wants or has demanded is denied or when things have not gone his way not his reaction to any negative feedback, that is, any critical or corrective response or reaction received by the plaintiff. Particular (q) is an elaboration of particular (p). Particular (s) refers to the plaintiff's reaction to a dispute with the defendant, not his reaction to negative feedback.
The particulars to [22] should be struck out. It follows that [22] should be struck out.
Paragraph 24 - triviality defence ('Alistair Again' image)
The plaintiff seeks to strike out [24] of the defendant's defence where she pleads the defence of triviality in relation to the 'Alistair Again' image. The plaintiff repeats his submissions in relation to [20] of the defendant's defence where the defendant pleads the triviality defence in relation to the 'Alistair to a Tee' image. I reject the application to strike out [24] of the defence for the same reasons that I rejected the plaintiff's challenge to [20] of the defence.
Paragraph 25 - justification of common sting ('Alistair Again' image)
At [25(a)] the defendant pleads that the 'Alistair to a Tee' image (which appears to be an error and should refer to the 'Alistair Again' image) conveyed the common sting meaning that the plaintiff exhibited qualities of a narcissist in his dealings with the defendant including by being ungrateful for what the defendant has done for the plaintiff in the past. In his submissions the plaintiff objects that the plea suffers from the lack of specificity caused by the use of the word 'including'. In the defendant's minute the defendant substitutes the words 'and in particular' for the words 'including by'.
The use of the words 'and in particular' is embarrassing. In the context of the pleaded meaning the words 'and in particular' have the same meaning as 'including by'. They convey the meaning that the qualities of a narcissist that the plaintiff exhibited are not limited to the particular quality of being ungrateful for what the defendant has done for the plaintiff in the past. In effect, the pleading refers to one quality of a narcissist which the defendant relies upon whilst reserving the right to rely on other unspecified qualities. The plaintiff does not know the case he has to meet.
The defendant gives particulars of justification. It is strictly unnecessary to consider the adequacy or sufficiency of those particulars because I have decided to strike out [25]. However, I will give the defendant leave to re‑plead and it is therefore efficient to rule on the adequacy and sufficiency of the defendant's particulars. Particular (i) repeats [21] and [22], presumably intending to refer to the particulars of justification subjoined to [21]. The plaintiff says that the defendant has not identified which particulars subjoined to [21] are intended to justify the plea of the plaintiff being ungrateful for what the defendant has done for the plaintiff in the past. The plaintiff says it is clear that particulars (i) to (f), (o) to (q) and (t) have no relationship with the plea that the plaintiff exhibited qualities of a narcissist in his dealings with the defendant by being ungrateful for what the defendant has done for the plaintiff in the past. Some of the matters particularised do not include any dealings with the defendant. In response the defendant says that all the matters set out in [21] to [22] are matters that the defendant witnessed, was involved with, and had to put with and tolerate as part of her relationship with the plaintiff.
The particulars should be struck out. Some of them are not relevant to the plaintiff being ungrateful for what the defendant has done for him in the past. For example, particulars (b)(ii), (c), (d), (e), (f), (n), (o), (p), (q), (r) and (t) have nothing to do with the plaintiff being ungrateful for what the defendant has done for the plaintiff in the past or indeed any response or reaction to the defendant. The plaintiff should not be left to trawl through the particulars to try and work out which of them relates to the plaintiff being ungrateful for what the defendant has done for the plaintiff in the past and how they relate to that alleged meaning.
The plaintiff says that particulars (b)(ii) to (j) are scandalous and in so far as they appear to plead criminal conduct are hopelessly deficient of the requisite particularity.
The defendant says that particulars (b)(ii) to (j) are not allegations of criminal conduct in the sense suggested by the plaintiff but are necessary to explain why the actions of the defendant have a particular quality ‑ and why the plaintiff's subsequent actions are to be seen as ungrateful. In oral submissions Mr MacLaurin said that the plaintiff's ingratitude can only be viewed in the context of what the defendant has done for him in the circumstances; in other words, the plaintiff's ingratitude is linked to the situation that he put the defendant in, what the defendant was dealing with. The defendant says that the quality of what the defendant had to deal with in relation to the plaintiff is relevant to the question of ingratitude.
Striking out scandalous matter is discussed by Dr Kendall and Curthoys J in Civil Procedure Western Australia Vol 1 (2015) at [20.19.8]. The authors say, and I accept, that the mere allegation of a scandalous fact does not render the pleading liable to be struck out; material which is degrading and therefore scandalous will not usually be struck out unless it is also irrelevant.
The particulars refer to the state the plaintiff has been in when the defendant cared for the plaintiff. That is what the defendant says relevantly she has done for the plaintiff and is therefore relevant to the proof of the truth of the meaning pleaded by the defendant. I would not strike out the particulars on the ground that they are scandalous.
Particulars (b)(ii), (c), (d), (e), (f), (n), (o), (p), (q), (r) and (t) should be struck out. Paragraph 25 should be struck out.
Paragraph 28 - justification (true innuendo meaning)
The plaintiff pleads that some persons to whom the images were published knew that the plaintiff is the son of the defendant's late husband, the plaintiff and the defendant are both directors of Wychwood Holdings and at the time of the publication to those persons the plaintiff was and still is an executor and trustee of the defendant's late husband's will. The plaintiff says that to persons who were aware of those extrinsic facts the images are defamatory of the plaintiff and:
28.1the 'Alistair to a Tee' image meant and was understood to mean that the plaintiff is a narcissistic sociopath in his dealings with the defendant in respect of Ian's estate; and
28.2the 'Alistair Again' image meant and was understood to mean that the plaintiff is a narcissist in his dealings with the defendant in respect of Ian's estate.
The defendant pleads that if, which she denies, the images conveyed the defamatory meanings by way of a true innuendo as alleged then such images conveyed the common sting meaning that the plaintiff exhibited qualities of a narcissist in his dealings with the defendant, and in particular being ungrateful for what the defendant had done for the plaintiff in the past and such meanings are true. The defendant gives particulars of justification. The particulars repeat [21], [22] and [25] of the defence.
The use of the words 'and in particular' in pleading the common sting meaning is embarrassing for the same reasons that the pleading of the common sting meaning in [25] of the defence is embarrassing. The particulars of justification are deficient to the same extent as the particulars to [25] of the defence. Paragraph 28 should be struck out.
Abuse of process
The plaintiff says that the defendant gives particulars throughout her defence of various matters relating to Ian's estate. For example, in [25(d)] and [25(f)] there are references to the alleged spread of misinformation about the defendant in respect of Ian's will and the management of the estate generally. The defendant has not brought separate proceedings concerning these matters. The plaintiff says that if findings are made in these proceedings in relation to the various transactions bearing upon the estate, those findings will not be binding on those persons not party to these proceedings and orders could not be made setting aside those transactions if they were in fact found to be improper. The plaintiff says that the pleas in this action if allowed may require the joinder of additional parties. The plaintiff says it is an abuse of process and a breach of RSC O 1 r 4B.
I do not agree with that submission. It is not an abuse of process for the defendant to plead in defence to a defamation action matters which might give rise to some other cause of action provided they disclose a reasonable defence and are not pleaded for a collateral purpose. For example, in an action where a plaintiff alleged that the defendant had published words imputing fraud to him, the defendant may seek to justify the imputation by proving that the plaintiff had committed fraud notwithstanding that the facts alleged by the defendant may give rise to a cause of action in an appropriate case.
There is no evidence that the defendant has pleaded matters relating to Ian's estate for a collateral purpose. I have dealt with the relevance of the defendant's pleading in the course of considering the plaintiff's other challenges to the pleading. I will not strike out the defence, or any part of it, on the ground of abuse of process.
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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