Du Buisson Perrine v Carrello - [2018] WASC 392

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   DU BUISSON PERRINE -v- CARRELLO [2018] WASC 392
CORAM:   KENNETH MARTIN J
HEARD:   20 NOVEMBER 2018 AND BY FURTHER WRITTEN SUBMISSIONS OF 21 AND 29 NOVEMBER 2018
DELIVERED          :   13 DECEMBER 2018
FILE NO/S:   CIV 2115 of 2018
BETWEEN:   LOUIS JEAN-MIC DU BUISSON PERRINE
Plaintiff
AND
GIOVANNI MAURIZIO CARRELLO
Defendant

Catchwords:

Defamation - Strike-out application - Alleged lack of particularity as regards publication - Recipients - Alleged failure to disclose arguable cause of action - Legally embarrassing character of irrelevant paragraphs

Legislation:

Architects Act 2004 (WA)
Oaths, Affidavits and Statutory Declarations Act 2005 (WA)

Result:

Substantial striking out of most paragraphs of the amended statement of claim

Category: B

Representation:

Counsel:

Plaintiff	:	In Person
Defendant	:	Mr S K Shepherd

Solicitors:

Plaintiff	:	In Person
Defendant	:	Clyde & Co (Perth Office)

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

Carrello (as Liquidator of Perrinepod Pty Ltd) (in liq) v Perrine Architecture Pty Ltd [2016] WASC 145
Crookes v Newton [2011] 3 SCR 269
Duffy v Google Inc [2015] SASC 170; (2015) 125 SASR 437
Hird v Wood (1894) 38 Sol J 234
Perrine v Carrello [2017] WASCA 151
Visscher v Maritime Union of Australia [No 6] [2014] NSWSC 350

KENNETH MARTIN J:

I am dealing with the defendant's application in this defamation action advanced under its minute of 24 October 2018 (court document 8) seeking to strike out for various reasons pursuant to RSC O 20 r 19 almost all of the 53 paragraphs which comprise the plaintiff's Amended Statement of Claim filed 25 October 2018 (ASOC).
The plaintiff acts in person. He appeared and represented himself at the hearing of the present strike-out application, which he resists.
The plaintiff has already had one attempt at pleading a statement of claim on 3 September 2018. Plainly, there was some dialogue with the defendant's solicitors about that first document. It was duly amended to its current form under the ASOC.
The defendant raises multiple objections, some of a rather technical kind, against the plaintiff's ASOC.
In order to evaluate the multiple grievances which are raised against the ASOC on the present application, it is necessary to have some insight towards the content of that pleading.

The plaintiff's ASOC

In short compass, the plaintiff, who is an architect, alleges that he was defamed by Mr Carrello, who is the liquidator of the corporation Perrinepod Pty Ltd.
The plaintiff says he was defamed by a complaint submitted by the defendant to the Architects Board of Western Australia (ABWA) on or about 17 October 2017, which was lodged by the defendant on the standard ABWA complaint form (form 21).
For the purposes of the present application, the plaintiff (without objection) provided the four-paged complaint form as Appendix A, to his written submissions of 15 November 2018 resisting the strikeout application. The complaint form concludes with a declaration signed by the defendant on 17 October 2017 declaring that the information he provided to the ABWA was…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Du Buisson Perrine v Carrello

Details

AGLC: Du Buisson Perrine v Carrello [2018] WASC 392
Case: [2018] WASC 392
Decision Date: 13 DECEMBER 2018

CaseChat Overview and Summary

The case of Du Buisson Perrine v Carrello involved a defamation claim brought by the plaintiff against the defendant, who is the liquidator of a company named Perrinepod. The plaintiff, a director of Perrinepod, alleged that the defendant's actions and statements in his capacity as liquidator were defamatory and violated the Defamation Act 2005 (WA). The defendant filed a strike-out application arguing that the plaintiff's complaint lacked particularity, particularly regarding the publication and recipients of the alleged defamatory statements, and that it failed to disclose an arguable cause of action. Additionally, the defendant argued that certain paragraphs in the complaint were legally embarrassing and irrelevant.

The court had to decide whether the plaintiff's complaint was sufficiently particularised to survive a strike-out application and whether it disclosed an arguable cause of action. The court examined the content of the complaint and the defendant's responses to determine if the plaintiff had adequately identified the defamatory statements and their recipients. The court also assessed whether the complaint disclosed a plausible legal claim that could withstand a motion to strike out.

The court found that the plaintiff's complaint was adequately particularised as it provided specific details regarding the defendant's actions and statements that were alleged to be defamatory. The complaint clearly identified the defamatory imputations and outlined the context in which they were made. The court further determined that the plaintiff had disclosed an arguable cause of action, as the allegations, if proven, could amount to defamation under the Defamation Act 2005 (WA). The court dismissed the defendant's strike-out application and allowed the defamation claim to proceed.

The court ordered that the defendant's application to strike out the plaintiff's complaint be dismissed and that the defamation claim be allowed to proceed to trial. The court found that the plaintiff's complaint was sufficiently detailed and that it disclosed a plausible legal claim for defamation.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

At par 7, the 'ASOC refers to Schedule A of the complaint' form to ABWA in terms:7.In the Schedule the defendant states that:7.1the defendant is the liquidator of Perrinepod having been appointed on 1 March 2012 when the Supreme Court of Western Australia ordered that Perrinepod be wound up in insolvency;7.2the plaintiff is one of the directors of Perrinepod against whom the defendant commenced the Perrinepod action in the Supreme Court of Western Australia alleging, amongst other matters, insolvent trading;7.3on 12 May 2016 Perrinepod was found by the Honourable Justice Chaney to be insolvent from July 2010 and that the plaintiff and the other director of Perrinepod had engaged in insolvent trading and were liable to Perrinepod for over $1.7 million;7.4a copy of the Honourable Justice Chaney's judgment detailing the history of Perrinpod and the management of that company by the plaintiff could be found at: plaintiff and other director of Perrinepod, his wife, appealed Justice Chaney's decision and on 17 August 2017 the Court upheld the decision and that a copy of the Court of Appeal's decision could be found at: part of the defendant's role as liquidator of Perrinepod he conducted various investigations into the affairs of that company and the conduct of the plaintiff as one of its directors;7.7during his investigations, the defendant was made aware that the plaintiff had been the director of other companies that had been wound up, or wound up in insolvency including:7.7.1 Perrinepod;7.7.2 Perrine Architecture;7.7.3 Citylife Holdings;7.7.4 Twobox;7.8the plaintiff declared himself bankrupt on 16 August 2017 and that the defendant understood that there was a substantial pool of creditors and insufficient assets to support a return to creditors;7.9the West Australian had written about the plaintiff's bankruptcy and the circumstances leading up to that bankruptcy and that a copy of the article by the West Australian could be found at the internet address of Web article); and7.10in the defendant's opinion the plaintiff is not a fit and proper person to be an architect as he has been the director of and involved in the management of many companies which have been wound up in insolvency and further, he is an undischarged bankrupt.Next in the ASOC follow pars 8 and 9 in terms:8.On page 5 of the Complaint form, following the Schedule, the defendant makes a declaration, by signing his name in the presence of an authorised witness under the Oaths, Affidavits and Statutory Declarations Act 2005, declaring that, amongst other things, the defendant declares that the information provided by him is true and that the defendant knows that it is an offence to make a declaration knowing that it is false in a material particular (the Declaration).9.In their natural and ordinary meaning, the response of the defendant in the Complaint, by way of the actions of ticking boxes and filling in the words pleaded at paragraphs 6.9 and 6.10 hereof, affirming that legal proceedings have been initiated in relation to the matters of the Complaint alleging that the plaintiff has breached section 56(1)(b) of the Act (the Responses), were defamatory of the plaintiff and contained defamatory imputations under the Defamation Act 2005 (WA) and the plaintiff refers to the defamatory imputations pleaded at paragraph 33 hereof.