Findlay v Grimmer [No 2]
[2013] WASC 247
•5 JULY 2013
FINDLAY -v- GRIMMER [No 2] [2013] WASC 247
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 247 | |
| Case No: | CIV:1128/2013 | 29 APRIL & 3 MAY 2013 | |
| Coram: | KENNETH MARTIN J | 5/07/13 | |
| 22 | Judgment Part: | 1 of 1 | |
| Result: | Imputations struck out Leave to replead | ||
| B | |||
| PDF Version |
| Parties: | LAWRENCE JAMES HEAN FINDLAY BRIAN GRIMMER |
Catchwords: | Defamation Practice and procedure Strike out Imputations False innuendos Identification |
Legislation: | Rules of the Supreme Court 1971 (WA), O26 r 8 |
Case References: | Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142 Harris v Warre (1879) 2 CPD 125 Lewis v Daily Telegraph [1964] AC 234 Mirror Newspapers v Monte [1979] 2 NSWLR 663 Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 Taylor v Jecks (1993) 10 WAR 309 The Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 Tournier v National Provincial & Union Bank of England [1923] All ER Rep 550; [1924] 1 KB 461 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- (Consolidated by order dated 1 March 2013)
- Plaintiff
AND
BRIAN GRIMMER
Defendant
- Plaintiff
AND
BRIAN GRIMMER
Defendant
Catchwords:
Defamation - Practice and procedure - Strike out - Imputations - False innuendos - Identification
(Page 2)
Legislation:
Rules of the Supreme Court 1971 (WA), O26 r 8
Result:
Imputations struck out
Leave to replead
Category: B
Representation:
CIV 1128 of 2013
(Consolidated by order dated 1 March 2013)
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff : Bennett & Co
Defendant : Lavan Legal
CIV 1314 of 2013
Counsel:
Plaintiff : Mr M L Bennett
Defendant : Mr M C Goldblatt
Solicitors:
Plaintiff : Bennett & Co
Defendant : Lavan Legal
(Page 3)
Case(s) referred to in judgment(s):
Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gillick v Brook Advisory Centres [2001] EWCA Civ 1263
Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142
Harris v Warre (1879) 2 CPD 125
Lewis v Daily Telegraph [1964] AC 234
Monte v Mirror Newspapers [1979] 2 NSWLR 663
Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1
Taylor v Jecks (1993) 10 WAR 309
The Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50
Tournier v National Provincial & Union Bank of England [1923] All ER Rep 550; [1924] 1 KB 461
(Page 4)
1 KENNETH MARTIN J: The defendant raised a series of objections against the plaintiff's statement of claim in this consolidated defamation action. The statement of claim is dated 8 March 2013.
2 In the wake of the strike-out application pursued under the defendant's chamber summons of 8 April 2013, the plaintiff provided a minute of proposed amended statement of claim to the court on 27 April 2013. It took that course although it has an open-ended right to amend as at this time. Argument proceeded across special appointments over two afternoons by reference to the minute of statement of claim, which runs to 49 pages. It alleges, overall, some 13 distinct instances of allegedly defamatory publications by the defendant (Mr Grimmer) of and concerning the plaintiff (Mr Findlay).
3 As did Le Miere J in The Australian Medical Association (WA) Inc v McEvoy [2012] WASC 50 [6], I find a helpful place to start, as regards the assembling what are well travelled legal principles, is the synthesis of many case authorities by Eady J in Gillick v Brook Advisory Centres [2001] EWCA Civ 1263 [7] (subsequently endorsed by the Court of Appeal) (and in Gatley 'Libel & Slander' (11th ed, 2008) [32.5]), in these terms:
The court should give the article the natural and ordinary meaning which it would have conveyed to the ordinary and reasonable reader reading the article once. Hypothetical reasonable readers should not be treated as either naïve or unduly suspicious. They should be treated as being capable of reading between the lines and engaging in some loose thinking, but not as being avid for scandal. The court should avoid an over-elaborate analysis of the article, because an ordinary reader would not analyse the article as a lawyer or accountant would analyse documents or accounts. Judges should have regard to the impression the article has made upon them themselves in considering what impact it would have made on the hypothetical reasonable reader. The court should certainly not take too literal approach to its task.
The 13 allegedly defamatory publications
4 The 13 impugned publications complained of can be divided into two tranches. The first tranche embraces four communications on 26 and 27 February 2012.
5 These communications present in the minute under a heading, 'Communications To WorleyParsons' at par 4 and following. They comprise three emails and one telephone conversation.
(Page 5)
6 The three emails are reproduced respectively at par 4 (26 February 2012 at 12.12 pm), par 7 (26 February 2012 at 12.46 pm) and par 14 (27 February 2012 at 10.19 am).
7 The third communication of the first tranche is a telephone call made on the morning of 27 February 2012 by Mr Grimmer some time before 10.19 am, allegedly to Mr William McGillivray of WorleyParsons (see par 11).
8 The minute alleges the same imputations recur throughout the four communications. I deal first with the imputations from the first WorleyParsons email. The assessment will result in carryover consequences to similarly formulated imputations in subsequent publications.
9 A second tranche of allegedly defamatory communications presents in the minute under the heading above par 18, 'Internal Communications within the Present Group'. These concern communications by Mr Grimmer within a corporation, of which he is both the managing director and a substantial shareholder.
Background
10 'The Present Group' is defined at par 2.2 of the minute by a linkage to Mr Grimmer, as being 'presently the Managing Director of and substantial shareholder of the Present Group Pty Ltd (ACN 150 760 768)'. It is contended an earlier company referred to in par 1.2.1, namely Powertech Combined Industrial Services Pty Ltd, 'is now also known as the Present Group, following incorporation in or about May 2011'.
11 Essentially, pars 1 - 3 of the minute contend there was a prior working history between Mr Grimmer and Mr Findlay, in the latter's capacity as a 'substantial shareholder, director and CEO of Powertech', from about 1990 to 1998 (par 1.3).
12 Mr Grimmer is said to have been the manager of Pro Source Pty Ltd (another defined company, see par 1.2.2) in 1997 and 'therefore an employee of Powertech' (par 1.3).
13 At par 1.4 it is pleaded Mr Findlay 'is now the Commissioning and Completions Manager (Construction Services) at FAST (being Flour SKM Iron Ore Joint Venture).
14 It is also pleaded that as an employee of Powertech, Mr Grimmer was required to report to Mr Findlay, in or about 1997 (par 2.1).
(Page 6)
15 Concerning more recent events, par 3 pleads on or about 22 February 2012 WorleyParsons Services Pty Ltd (WorleyParsons) made Mr Findlay an offer of employment as 'Senior Completions and Commissioning Manager' and that this offer was accepted by Mr Findlay on or about 24 February 2012. Then, it is pleaded that five days later, on or about 29 February 2012, WorleyParsons advised Mr Findlay by email:
For reason (sic) that are confidential to WorleyParsons we will not be progressing any further with our engagement or employment discussions with you.
16 That plea at par 3 founds a claim for special damages, seen at par 43. It is said Mr Grimmer's allegedly defamatory communications to WorleyParsons caused Mr Findlay specific loss and injury, including (see par 48.1) 'loss of expected future revenue'.
17 Essentially, it is pleaded WorleyParsons reneged on a completed agreement to employ Mr Findlay.
18 It is next pleaded in par 48.1.4 that on or about 21 May 2012 Mr Findlay accepted employment elsewhere with FAST as Commissioning and Completions Manager (Construction Services). However, this position was not an executive role like the position previously offered by WorleyParsons. The FAST position is also said to be for a lesser salary than WorleyParsons offered. It was for only a one-year term, in contrast to the WorleyParsons' five-year term.
19 That series of pleas as to special damage was attacked by counsel for the defendant as causatively deficient, incoherent or illogical. However, on my assessment, the essential underlying facts are pleaded. It is clear to all but the intentionally obtuse where the plaintiff's claim is directed in terms of special damages. A series of allegedly defamatory communications - the four communications made by Mr Grimmer directly to WorleyParsons as Mr Findlay's putative new employer - are to be assessed as to their negative impact against that employment relationship ultimately not proceeding.
20 Before seeking to evaluate various imputations which are the subject of strike-out attacks, I will address another plenary objection raised by the defendant.
21 As seen in par 4 of the minute and recurrently in subsequent pleas, the plaintiff uses the word 'including', in making a plea concerning publication of the email to 'persons employed by WorleyParsons'.
(Page 7)
- Paragraph 4 goes on to identify Mr William McGillivray and Mr Andrew Wood as having received the allegedly defamatory email published anonymously by the defendant on 26 February 2012 at 12.12 pm.
22 The plenary criticism essentially is that the relevant email has been produced and identified. Hence it is said its recipients are a closed and identified class: see attachment NER6 to the affidavit of Nicola Emma Randall affirmed 20 April 2013. It is then said that it is impermissible and embarrassing for the word 'including' to be used, thereby expanding the potential class of persons to whom the email was published beyond the email's expressly designated recipients, namely Mr McGillivray and Mr Wood.
23 On the other hand, the plaintiff through counsel says that use of the word 'including' is fully appropriate, particularly as regards an email. An email may have been blind carbon copied to other recipients, presently unknown ('bcc'). The plea keeps the range of the publication's recipients open to embrace other persons should they emerge, in that respect. Alternatively, the evidence at trial may show an email was read by others at points along the way, after receipt by the expressly nominated recipients.
24 I am satisfied the plenary criticism is very minor. The explanations offered for the plaintiff's use of the word 'including' are, on my view, more than reasonable in the present circumstances.
25 This plenary criticism presents to me as carping in nature. I do not detect real pleading embarrassment, even in a context of a complex defamation action, where pleading sensitivities may be measured as legitimately greater than in ordinary general civil litigation (compare Barclay Mowlem Construction Pty Ltd v Dampier Port Authority [2006] WASC 281; (2006) 33 WAR 82).
First WorleyParsons email - 26 February 2012
26 A more specific criticism concerning par 4 was the challenge to the asserted anonymity of the sender of the email at the time. This arose subsequent to a request for and production of the document pursuant to O 26 r 8 of the Rules of the Supreme Court 1971 (WA). The response showed Mr Grimmer as the sender. I am not persuaded that there is any merit in the grievance, notwithstanding what was produced in answer to the defendant's solicitors was probably the wrong version of the email. It is clear that sender was anonymous at the time of transmission.
(Page 8)
27 The 26 February 2012 email was sent at 12.12 pm from the email address [email protected] with a subject heading 'Lawrence James Hean Findlay'.
28 On behalf of Mr Findlay, five distinct (impugned) imputations, are pleaded to arise from the natural and ordinary meaning of the words of this email - that is, popular (false) innuendos.
29 The alleged meanings contended for at par 5 are:
The first WorleyParsons Email was defamatory in its natural and ordinary meaning and was understood to mean that the Plaintiff:
5.1 in his professional career is a psychopathic liar;
5.2 in his professional career is a psychopathic manipulator of innocent people;
5.3 in his professional career is a person who psychopathically inflicts pain on other persons;
5.4 is a person who in his professional career suffers a violent mental disorder so at (sic) to make him dangerous to others; and
5.5 is a person so suffering from a mental disorder as to cause fear to his work colleagues and associates.
30 A host of conceptual criticisms were directed against each of these imputations, essentially casting them as unsustainable on a fair reading of the email, or for legal embarrassment by reference to other asserted deficiencies. These were said to include a lack of clarity, or the conceptual failure to distil the derogatory imputation its absolute defamatory essence. Sometimes criticism was made of rolling together of more than one pejorative meaning, producing mixed meanings, resulting in unacceptable confusion. This was in circumstances where the requirement was for each distinct defamatory meaning to be discretely identified.
31 As regards pleading embarrassment challenges as regards imputations, I will first note some well-known case authorities, in particular Sungravure Pty Ltd v Middle East Airlines Airliban SAL [1975] HCA 6; (1975) 134 CLR 1. In that case Stephen J referred, at page 14, to the need for a 'precise meaning', in an innuendo attributed to words and, at page 15, to a requirement for a 'final distillation of the absolute defamatory essence' (my emphasis); see also Monte v Mirror Newspapers [1979] 2 NSWLR 663, 678 (Hunt J). Those cases dealt with
(Page 9)
- s 5 of the Defamation Act 1958 (NSW). But I would also mention Taylor v Jecks (1993) 10 WAR 309. There, Anderson J delivering the majority reasons in the Full Court, addressed the pleading requirement not to roll together, or mix distinct imputations, as a plea so formulated, was
open to the additional criticism that two imputations are rolled into the one plea. I think that is so, and that it is fatal. The rule of practice is that imputations should be separately pleaded. It is part of the wider rule that pleadings must not be embarrassing. Distinct imputations should be distinctly pleaded so that the defendant can deal with them separately, otherwise there is potential for much confusion. The potential for embarrassment also lies in the doubt, inherent in the rolled up plea, as to whether different imputations are indeed sought to be relied on or whether it is the same imputation differently expressed (320 - 321).
33 I move to deal with the imputations.
Imputation 5.1 (first WorleyParsons email - 26 February 2012)
34 Imputation 5.1 contends the plaintiff
in his professional career is a psychopathic liar.
35 The defendant launched another plenary attack against the use in the pleading of the phrase '[i]n his professional career' in this and other imputations in the minute.
36 It was contended it would be impossible for a psychopath to function differentially as between their working (ie, professional) and private lives. So therefore, the pleaded 'career' limited delineation of the imputation, as formulated, was conceptually flawed.
37 I reject the criticism, although the submission might ultimately find favour with a jury or judicial trier of fact. On my assessment, evaluating the submission at the interlocutory level of arguability, the second paragraph of the 26 February 2012 email provides an arguable platform to sustain a delineation as to 'career'. It says:
(Page 10)
- Something has gone seriously wrong if LJHF has slipped through our net, but then again he would not be much of a career psychopath if he could not seek out fresh victims? (emphasis added)
38 The defendant sought to rationalise this reference to 'career psychopath' on the basis the phrase ought not be understood as directed to Mr Findlay's career. Rather, it meant, correctly understood, something along the lines of Mr Findlay being attacked as a lifetime psychopath.
39 The may ultimately be the view taken by a jury, but at this level, it seems to me a delineation of this imputation to Mr Findlay's 'professional career' is fairly arguable. I do not strike it out. (Likewise for references to 'professional career' in following imputations 5.2, 5.3 and 5.4 and correlative formulations in the subsequent imputation pleas in the minute.)
40 By a distinct further attack against par 5.1, the defendant argued that the plaintiff had not raised, under par 5, any imputation arising out of this publication as to the email publication being understood to mean, by its natural and ordinary meaning, that the plaintiff is 'a psychopath'. Such an imputation, it is said, would have been open from the terms of the email (and clearly arguably defamatory).
41 It is, of course, for a plaintiff to choose which imputations it wishes to complain of, from the words complained of. But there is said to be a wider significance in the decision not to raise such a clearly open imputation as to 'psychopath' in the required evaluation of the asserted derogatory sting carried by the par 5 imputations.
42 The defendant's end criticism is that the imputation seen at 5.1 is unacceptable because, as constructed, it blurs two distinct grievances by use of the phrase 'psychopathic liar'. It is accepted by the defendant an imputation that the plaintiff is a psychopath, by itself, would be defamatory. Beyond that, a separate imputation that the plaintiff is a liar also presents as defamatory. It is said that to mix the two distinct meanings together, by using the phrase 'psychopathic liar', with the word 'psychopathic' used as an adjective vis-à-vis the noun 'liar', blurs distinct concepts confusingly and is unacceptable. The word 'psychopathic' is not used in the email, although the word 'psychopath' is used repeatedly.
43 I agree. I must uphold the criticism that there is a mixing or blurring of distinct concepts in 5.1 by the term 'psychopathic liar'. The distinct aspects in the imputation plea should be separated. I would allow leave to amend.
(Page 11)
44 For longer term clarity's sake, I would observe that pleading separate imputations along the lines below would present as acceptable, namely that the plaintiff:
5.1(a) is a psychopath;
5.1(b) in his professional career, is a compulsive liar.
Imputation 5.2 (second WorleyParsons email - 27 February 2012)
45 A similar conceptual criticism over an unacceptable blurring of distinct concepts in one rolled together imputation is made of par 5.2, towards the phrase 'is a psychopathic manipulator'.
46 'Psychopathic' is again used, this time as an adjective vis-à-vis the noun, 'manipulator'.
47 There was also a distinct attack directed at the plaintiff's use of the phrase, 'innocent people'. I reject the criticism of use of the word 'innocent' in the imputation. The first line of the email reads:
I beg you for the sake of the innocent within the organization to read (emphasis added)
48 There follows a reference in the email to 'fresh victims' and then to 'an innocent victim'. In my view, an attack on the use of the word 'innocent' fails.
49 However, I would uphold the duality of meaning criticism put against the phrase 'psychopathic manipulator' in imputation 5.2.
50 Having said that, longer term, a relatively minor pleading adjustment, by deleting the word 'psychopathic' would meet the criticism.
51 I would allow an amended imputation in terms 'in his professional career, is a manipulator of innocent people'.
Imputation 5.3 (Telephone call Grimmer to McGillvray of WorleyParsons - 27 February 2012)
52 This imputation presently reads:
[i]n his professional career is a person who psychopathically inflicts pain on other persons.
53 The word 'psychopathically' presents, used before the verb 'inflicts', in reference to a subject matter of 'pain'.
(Page 12)
54 The word 'psychopathically' is not used in the email, although 'psychopath' is used repeatedly.
55 Again, a duality criticism raised is that the terminology 'psychopathically inflicts' pain mixes distinct concepts and so, is unacceptable.
56 This time I disagree. The imputation as formulated is not unclear. I can detect no mixing of significantly different meanings within this imputation. It may stand.
Imputation 5.4 (third WorleyParsons email, 27 February 2012)
57 This reads:
[i]s a person who in his professional career suffers a violent mental disorder so as to make him dangerous to others.
58 Numerous criticisms were raised, particularly concerning use of the word 'violent' as an adjective vis-à-vis a condition, 'mental disorder'. The word 'dangerous' was also criticised as unjustified.
59 I reject the criticisms over use of the word 'dangerous'. The text of the email, particularly its warning message tone and its reference to 'victims' and to 'pain', does provide an arguable foundation for a jury or judicial trier of fact to resolve at trial whether it will accept that formulation.
60 However, I uphold the conceptual criticism of the phrase 'violent mental disorder'. On my assessment, it is imprecise, illogical and confusing. A mental disorder which afflicts a psychopath may, or may not, manifest in acts of violence. But, in my view, it is wrong and diverting to describe a mental disorder itself, as violent - especially when the email publication refers instead to the putative psychopath seeking 'money, power, sex or influence' - rather than to acts of violence. The distinction is obvious even to the casual, but reasonable, reader.
61 As discussed with counsel, a reformulation by amendment to 'a chronic mental disorder which may manifest in violence, to make him dangerous to others' would, on my assessment, be open.
Imputation 5.5
62 Imputation 5.5 currently reads:
(Page 13)
- [i]s a person so suffering from a mental disorder as to cause fear to his work colleagues and associates.
63 This was criticised as not open, or being, as formulated, unclear.
64 Certainly, there is ample foundation within the text of the email to provide an arguable basis for a reference to 'fear' in work colleagues and to associates: see, for instance, the words 'fearful referees'.
65 Also see in the text, '[w]ho is not too frightened to tell the truth'.
66 However, on my assessment, the imputation does not manifest a sufficient level of clarity, as required.
67 A person suffering a base mental disorder would not only by that feature alone cause fear to work colleagues or associates. Rather, it would be the exhibited manifestations of the mental disorder as suffered by a psychopath which would generate possible fear in work colleagues or in associates.
68 If imputation 5.5 were reformulated by amendment to:
Is a person whose mental disorder leads him to conduct himself in ways that cause fear to his work colleagues and associates.
- it would then be arguably open.
69 Imputations in similar terms recur subsequently through the minute. I now move to assess subsequent manifestations in light of the conclusions reached to date, which have carryover consequences.
Second WorleyParsons email
70 For the second WorleyParsons email of 26 February 2012 at 12.46 pm, I reject the conceptual criticism of use of the word 'including' for reasons now given.
71 Vis-à-vis par 7.2, I reject the criticisms of the particulars of identification. They are more than arguable.
72 I do accept a lesser criticism of the introductory phrase by which the plaintiff repeats pars 1 to 3 of the minute. But those earlier pars 1 to 3 do not go any distance towards providing any factors towards Mr Findlay being arguably identified as a subject of the second WorleyParsons email. However, the subsequent factors seen of 7.2.1, 7.2.2 and 7.2.3 do meet
(Page 14)
- that standard as regards an arguable basis for the identification of the plaintiff.
73 As regards imputations contended for from this email, they present in two classes. Both are challenged.
74 Paragraph 8 pleads one popular (false) innuendo, that 'the Plaintiff suffers from a violent mental disorder'. As I earlier observed by reference to par 5.4, the term 'violent mental disorder' is problematic.
75 Paragraph 9 alternatively pleads further true (legal) innuendos, but essentially replicating imputations seen earlier at 5.1 through 5.4.
76 The core criticism is that the plaintiff is not actually relying on a republication of the first WorleyParsons email that might arguably carry imputations 5.1 to 5.5, when reformulated in the fashion I have indicated above.
77 For the second WorleyParsons email, the content in the first (earlier) WorleyParsons email, is raised only because of its argued role in the identification of the plaintiff.
78 The imputation as currently formulated is unacceptable.
79 Criticism of par 9 must be upheld on the basis the imputations contended for concern only the first WorleyParsons email, not the second email as they should.
80 Paragraph 9 as a whole should be struck out, with leave to replead.
Telephone call (Grimmer to McGillivray of WorleyParsons - 27 February 2012)
81 Three imputations contended for, arising out of a telephone call between Mr Grimmer and Mr McGillivray, are that the plaintiff:
12.1 unethically seeks confidential information
12.2 was a violent person who threatens persons; and
12.3 was a violent person who causes others to be personally endangered.
82 Criticism of 12.1 as regards its use of the term 'unethically', when juxtaposed against a following phrase 'seeks confidential information' in my view, must be upheld.
(Page 15)
83 Some reference was made to ethical values at the start of this phone call. A lot later followed the words about the plaintiff 'seeking confidential information relating to chargeout rates for personnel and test equipment'.
84 Reference to 'ethical values' presents, in respect of an early observation upon the plaintiff, as to him not having the same business and ethical values the defendant felt 'WorleyParsons aspire to'. But the subsequent seeking out of confidential information by the defendant from The Present Group is a distinct and unrelated topic in this discussion. Without more, it is not defamatory to suggest a person seeks or sought out confidential information. I assess imputation 12.1 as flawed.
85 Imputation 12.2 attracted criticism through use of the word 'violent'. The term 'psychopath' was not used in this verbal communication. Imputation 12.2 cannot stand as presently formulated. There is no basis for use of the term 'violent person'. Threats alone do not equate to someone being characterised as a violent person as a matter of pure logic. However, 12.2 could, longer term, be amended to either:
12.2 was a person who threatens, or
12.2 was a person who had made threats.
86 An equally valid criticism is put against the term 'violent person' in par 12.3. Paragraph 12.3 could be recrafted to:
12.3 was a person who caused others to feel endangered.
87 This adjustment would then align to a passage in the record of the phone conversation, 'Laurie made threats to various Powertech employees at the time and these individuals felt personally endangered'.
88 I also uphold the criticism of par 22 by its use of the phrase, in the chapeau: 'to the following effect'. That terminology infringes what may be referred to as the Harris v Warre principle, applicable to what were once slanders. See Harris v Warre (1879) 2 CPD 125, 128 (Lord Colerdige CJ), applied by Master Newnes, as he then was, in Hambly v Joseph Charles Learmonth Duffy Pty Ltd [2004] WASC 142 [7] - [8].
89 The present relatively minor formulation deficiency can be addressed by deletion of the impugned words and a rephrase, for par 11 to read:
telephoned Mr William McGillivray of WorleyParsons and uttered the words below that were of and concerning the plaintiff.
(Page 16)
90 If, at trial, the exact words as pleaded are not proved, but there is proven an utterance of words to substantially similar effect, the plaintiff may still make good its case. See Hambly v Warre [10] applying Atkin LJ in Tournier v National Provincial & Union Bank of England [1923] All ER Rep 550; [1924] 1 KB 461.
The third WorleyParsons email - 27 February 2012
91 Only par 15.1 is attacked. This imputation is that the plaintiff:
15.1 is a violent person who threatens others.
92 I note reference in the email to the words 'fear', 'whistleblower', 'threats and intimidation' and that 'LF targeted one of our managers over the weekend'.
93 There is still a problem with the word 'violent' as an adjective vis-à-vis the noun, 'person'. Ensuing reference to 'who threatens others' displays a duplication of blurred derogatory concepts, which is confusing. Paragraph 15.1 could be rehabilitated if it were amended to:
15.1 is a person who threatens others
94 However, use of the word 'violent', currently displayed, is problematic.
95 Attempted true (legal) innuendo pleas by par 16, invoked by reference to extrinsic facts suffer the same conceptual flaw as par 9. They invoke the par 5.1 to 5.5 imputations arising out of the first WorleyParsons email. But, in fact, any available imputations should be derived only from what can be found to arise from the text of the third WorleyParsons email (supplemented by any relevant extrinsic facts known to a reader).
Second tranche: nine impugned (of 10) internal communications within the Present Group
First internal email (13 February 2012)
96 No defamatory imputation is said to arise from what is identified as the first internal email (quoted at par 18) of 13 February 2012 at 6.27 pm. The par 18 plea is contextual only to what follows. Paragraph 18 stands unchallenged.
(Page 17)
Second internal email (13 February 2012)
97 The second internal email is at par 19 of the minute. This is an email referring to a Spiderman movie and the conduct of a villainous character therein (Green Goblin) 'making Spidey choose between saving his girl or a cable car full of civillians' (sic).
98 There was an attack raised against the particulars of identification at par 19.2, particularly pars 19.2.3 and 19.2.4.
99 The attack fails in that the four particulars invoked are not to be viewed or evaluated as stand alone identification indicators. They are significant in character. The plaintiff is entitled to aggregate some or all of these factors contextually, thereby raising an argument as to his arguable identification which is for a jury or the judicial trier of fact to resolve in the end.
100 The imputations themselves are argued as popular (false) innuendos, arising out of the asserted natural and ordinary meaning of the words used. Par 20.1 reads:
is a person who suffers from a mental disorder
- and 20.2:
is a person in business devoid of human values.
102 For par 20.2 the attack was raised upon the term 'human values', used in the wider phrase, 'devoid of human values'.
103 The second internal email does criticise the plaintiff, on the basis of his values being incompatible with those of WorleyParsons and because the plaintiff:
sees values as weakness … Ultimately all people like Laurie do is make you fight for your values even more when you realize they would use them in such a cynical way.
104 The par 20.2 imputation is open. It can be finally evaluated at trial, notwithstanding my initial reservation over the word 'devoid', as regards values. 'Deprecates' or 'exploits' may have been more appropriate but as formulated the imputation is open.
(Page 18)
105 I find nothing objectionable in the adjective 'human', used as regards 'values'. The email's text refers to a fictional inhuman villain (from the Spiderman movie) and to a dilemma this villain deliberately imposed on the hero (Spiderman). This provides an arguable basis for the use of 'human' in the imputation as a clarification concerning the noun 'values'.
Third internal email (13 February 2012)
106 Four asserted imputations appear at par 23 of the minute. Objection was pressed only against par 23.4, as regards the plaintiff being 'a person who cannot work with others'.
107 The email was challenged on the basis it is not arguably defamatory to say of someone that they cannot work with others. However, the context is everything. In my view, bearing in mind the present overall context of the communications, this imputation is more than open and arguably defamatory.
108 From the terms of the email the imputation, on my assessment, is open, bearing in mind a recounting of the historic alleged incidents of personnel departures as referred to in the Sydney Morning Herald article of 15 March 2004 and attached to that email. I particularly refer to two paragraphs mentioning the turnover of directors, and resignation of the company's geologist Stuart Robinson, as well as the chief financial officer and company secretary, Mr Malcolm Smartt. The result says the article was that the company 'now has only Findlay, a receptionist and a book-keeper on its payroll'. The imputation is open.
Fourth internal email (25 February 2012 at 2.59 pm)
109 Towards its end this email contains this:
I hope Ryan C [a reference to the person earlier identified at par 2] does not go from Anakin to Darth with all those rotten role models?
110 Only one imputation is contended for from this publication, namely (par 26)
the plaintiff in his business dealings is an evil person.
111 The email's reference to going 'from Anakin to Darth' can easily be read as a reference to the character from 'Star Wars' movies, namely Anakin Skywalker, who was notoriously corrupted and ultimately turned from the path of righteousness to the 'dark side' of 'the force', ultimately evolving to become Darth Vader, the iconic movie villain who is
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- quintessentially an embodiment of evil. The George Lucas 'Star Wars' movies and their principal characters form a part of modern day culture.
112 However, this email's reference to someone possibly evolving (as did Anakin to Darth) to an evil person is 'Ryan C', not the plaintiff. The text's reference to Laurie (the plaintiff) is more distant - as to he being one of a number of 'rotten role models'.
113 The pleaded imputation does not seem to me to be open, at least on the natural and ordinary meaning of the words albeit their notoriety. It does not accurately capture the vice raised against the plaintiff. That vice is more directed at the plaintiff as being a corrupter of the innocent - by reason of him being a rotten role model. I strike out par 26 with leave to replead.
Fifth internal email (26 February 2012)
114 This email's text does manifest the extensive use of the word 'psychopath'. It explains three phases of that condition using the quoted extract from authors Hare and Babiak, under a heading 'Basic manipulative strategy of a psychopath'.
115 The imputations pleaded in the natural and ordinary meaning of the fifth internal email are seen at par 29. They essentially replicate par 5.1 through 5.4. There is an error in par 29.3 of the minute, which refers to 'persona' when what was obviously intended was 'person'. The observations I made earlier in respect of pars 5.1 to 5.4 apply equally here, for pars 29.1, 29.2, 29.3 and 29.4, respectively.
Sixth internal email (26 February 2012)
116 Paragraph 32 repeats the par 5 imputations, verbatim. As seen in the plea at par 31.0, the first WorleyParsons email is also set out verbatim and accompanies this email. Its terms must, therefore, be assessed with and in conjunction with the sixth internal email, which reads:
Screw the Karma.
I cannot sit idly by and watch this unfold especially now I know LF has us in his sights.
Best regards,
Brian Grimmer
Managing Director
Present Group
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117 Earlier observations concerning par 5 of the minute apply mutatis mutandis to this aggregate communication.
Seventh internal email (26 February 2012)
118 Surviving imputations in the minute at par 35, essentially carry counterpart pleas to pars 5.2 and 5.4, as regards repeating the terminology 'psychopathic manipulator' and 'violent mental disorder'.
119 The plaintiff still does not plead any imputation that he has been defamed on the basis of being a psychopath. This is so notwithstanding that the seventh internal email's text uses the words 'psychometric' and 'psychopathy'.
120 In my view, pars 35.1 and 35.2 in the minute could stand, if adjusted, to accord with the observations I earlier made concerning par 5.2 and 5.4.
Eighth internal email (4 March 2012)
121 This email, sent a week after the previous (seventh email), must be read as a stand alone communication. It is essentially about Mr Grimmer taking the psychometric test himself.
122 It is significant to my assessment of both this and the next email that there is a significant temporal gap after the seventh internal email of 26 February 2012. That gap and the lack of reference to Mr Findlay in the text provides too great a buffer, in my view, to reasonably read the eighth communication as necessarily being about the plaintiff, even bearing in mind the strong subject matter of these prior communications and their undoubted references to the plaintiff as a psychopath.
123 This communication does not mention Mr Findlay. I cannot assess it even arguably, therefore, as being of and concerning Mr Findlay. Paragraph 37.2 should be struck out with leave to re-plead, only if some further facts can be identified to sustain a properly arguable identification plea, as regards the plaintiff.
124 Likewise, the plea in par 38, which replicates at 38.1, 38.2 and 38.3 the 5.1, 5.2 and 5.4 imputations, is not sustainable. It is not a plea of and concerning the plaintiff.
Ninth internal email (4 March 2012)
125 This was sent the same day as the eighth internal email.
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126 Again there is nothing to identify this communication as being of and concerning the plaintiff. Hence, the same outcomes as regards the eighth internal email pertain for the ninth. Therefore, I strike out 40.2. Likewise for imputations at 41.1, 41.2 and 41.3, which replicate 5.1, 5.2 and 5.3 respectively.
127 As regards the eighth and ninth internal emails, there is, of course, nothing to prevent the plaintiff potentially raising these publications as arguable aggravations of preceding email communications.
Tenth internal email (5 March 2012)
128 The last email complained of does sufficiently identify the plaintiff: see its reference to 'LF'. Its text says, in part:
My last email to him (Bill McGillivray) is below and I am prepared to tell LF that I outed him as a career psychopath if it comes to it? Although we will see if Worley have the balls to clear up their own mess without implicating me … at any rate, I am prepared Jedhi-like for the empire to strike back …
129 There follows, repeated, the text of the third WorleyParsons email (see par 14 of the minute).
130 There is no challenge to arguability of the particulars of identification at par 43.2.
131 The imputations at par 44.2, 44.3 and 44.4 replicate the earlier imputations at 5.3, 5.4 and 5.5 with a slight distinction that par 44.4 refers to causing fear to 'people in the industry' as well as 'work colleagues [and] associates'. My earlier observations and conclusions apply, mutatis mutandis. Subject to making the required refinements I have mentioned earlier as necessary to par 5, they are essentially sustainable, at least assessed at the interlocutory level of arguability, and supported significantly by the email's extensive use of the word 'psychopath'.
132 Imputation 44.1 is formulated uniquely. It reads:
44.1 in his professional career is a psychopathic person. (emphasis added)
133 There is no basis to disallow the imputation's use of the terminology 'professional career', for reasons I have previously expressed.
134 The email does, as I mentioned, contain the passage concerning LF being outed as a 'career psychopath': see imputation 44.1.
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135 Reference to 'psychopathic person' in this imputation is unique in the plaintiff's minute. It comes closest to putting the imputation plea, unseen to this point in the minute, that the plaintiff is a psychopath - undoubtedly open.
136 However, the adjective 'psychopathic' is not used, in the text of the email. Instead the noun, 'psychopath', is used. In the end that does not matter.
137 On my view, the contended for meaning is arguably open. I assess it as of a genre within observations in Lewis v Daily Telegraph [1964] AC 234, 234, 277 - 278 (Lord Devlin) concerning words that speak for themselves. The example given by Lord Devlin in Lewis v Daily Telegraph at page 278 was for the word 'fornicator', as a word that could not be enlarged further by innuendo. So also for words such as 'liar', 'thief' or 'cheat'. They speak for themselves and require no further elaboration, clarification or refinement in terms of the derogatory sting they carry.
138 The imputation seen at par 44.1 may stand.
Costs
139 There has been a measure of success and failure on both sides across extensive arguments on both sides which spanned extensive written submissions and consumed two afternoon special appointments. My prima facie view is that costs should lie in the cause of the ultimate action. I will, however, hear the parties on the papers as to that assessment, should they care to present a submission to the contrary.
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