Findlay v Grimmer [No 3] - [2014] WASC 228

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: FINDLAY -v- GRIMMER [No 3] [2014] WASC 228

CORAM: KENNETH MARTIN J

HEARD: 15 APRIL 2014

DELIVERED : 30 JUNE 2014

FILE NO/S: CIV 1128 of 2013
(Consolidated by order dated 1 March 2013)

BETWEEN: LAWRENCE JAMES HEAN FINDLAY
Plaintiff
AND
BRIAN GRIMMER
Defendant

FILE NO/S :CIV 1314 of 2013

BETWEEN :LAWRENCE JAMES HEAN FINDLAY
Plaintiff
AND
BRIAN GRIMMER
Defendant

Catchwords:

Defamation - Strikeout application - Multiple pleas of statutory justification - Challenge to pleaded defence as unarguable or embarrassing - Plea of bad reputation - Not particularised - Rules of the Supreme Court 1971 (WA) O 34 r 6 considered

Legislation:

Defamation Act 2005 (WA), s 25, s 26

Result:

Application allowed
Defence struck out

Category: B

Representation:

CIV 1128 of 2013

(Consolidated by order dated 1 March 2013)

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Bennett & Co
Defendant: Gilchrist Connell

CIV 1314 of 2013

Counsel:

Plaintiff: Mr M L Bennett
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Bennett & Co
Defendant: Gilchrist Connell

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

Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430
Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; (2010) 278 ALR 232
Findlay v Grimmer [No 2] [2013] WASC 247
Godman v Times Publishing Co Ltd [1926] 2 KB 273
Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB)
Ives v The State of Western Australia [No 8] [2013] WASC 277
J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357
Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347
Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 87 ALJR 110
Scott v Sampson (1882) 8 QBD 491
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Wootton v Sieiver [1913] 3 KB 499
KENNETH MARTIN J:

Background

This is the plaintiff's application to strike out numerous paragraphs of the defendant's currently pleaded defence.
The application was initiated by the plaintiff's minute of proposed orders of 30 October 2013. Subsequently, I made consensual programming directions for the hearing of argument.
The dimensions of the parties' pleadings are of some magnitude.
Some background to the plaintiff's statement of claim is found within my previous decision, Findlay v Grimmer [No 2] [2013] WASC 247 regarding 13 allegedly defamatory publications, the subject of the plaintiff's defamation grievances against the defendant. Resolution of the attacks against the statement of claim led to an amended statement of claim (ASOC) filed 30 July 2013 (of 52 pages).
The publications complained of by Mr Findlay remain capable of being divided into two distinct categories. The first embraces external communications by Mr Grimmer (the defendant) to a third party company, WorleyParsons - then a prospective employer of the plaintiff.
The second tranche of impugned communications are Mr Grimmer's internal email communications which were circulated within the Present Group Pty Ltd, of which Mr Grimmer was both managing director and substantial shareholder. I refer to [4] through [14] of the earlier reasons.
On 6 September 2013, the defendant filed his defence. This was also a response of some magnitude. Now it was the plaintiff's turn to raise his (numerous) pleading objections.
Under my programming orders the plaintiff filed written submissions to strike out parts of the defence (against the defence pleading filed 6 September 2013).
The plaintiff's written submissions were filed on 27 November 2013. Subsequently, on 13 February 2014 there was a directions hearing. Then counsel for the defendant (Mr Goldblatt) foreshadowed likely amendments to the defence 'limited to particulars'.
An amended defence pleading emerged, of 14 March 2014. This was of some 86 pages magnitude. The variations were not limited to the mere supply of particulars. There were a number of excisions, but a number of substantially new pleas as well.
The same day the defendant's newly appointed solicitors filed an outline of written submissions of a mere six paragraphs. These submissions identify some substantial amendments to the defence but otherwise advise, where there had not been any amendment, essentially, that there was a traverse against the plaintiff's strikeout grievances - expressed under the plaintiff's first written submissions of 27 November 2013 (comprising 24 pages of submissions plus a schedule).
The implicit assumption by the defendant's new legal advisers that the amended defence pleading of 14 March 2014 had resolved the majority of the pleading grievances of the plaintiff, proved to be seriously misplaced. On 11 April 2014, the plaintiff's lawyers filed a further 24 pages of reply submissions (plus a schedule) notifying that the majority of the strikeout grievances previously raised had not, in their view, been adequately addressed under the amendments to the defence.
There followed the defendant's outline of written submissions, expressed as being in reply of 14 April 2014 (of some 10 pages).

Hearing on 15 April 2014

The magnitude of the amended defence document and the dimensions of the many grievances still raised against the pleading has dictated as a matter of practicality that only a selection of the pleading grievances asserted by the plaintiff were capable of being canvassed at the hearing of the plaintiff's strikeout application.
At the hearing it was frankly said by newly appointed counsel for the defendant (Mr Anderson) that he had effectively inherited the amended defence pleading. He faced an unenviable task of resuscitating a pleading which carried a number of obvious formatting and paragraph numbering deficiencies - which were accepted and would be corrected in future. Many errors of that nature were exposed during Mr Bennett's submissions on behalf of the plaintiff.
In the circumstances, the parties' arguments could deal only with strikeout issues surrounding the defence of the first publication complained of. This was the first WorleyParsons email of 26 February 2012, seen set out in full, at par 4 of the ASOC.
These reasons necessarily direct their attention only to the more substantive grievances raised during the argument between the parties, which crystallised to some extent during that exercise.
It is necessary to mention two underlying background matters. First, the plaintiff now contends, by ASOC par 5, for six distinct defamatory imputations arising upon the argued natural and ordinary meaning of this publication. The six imputations respectively are that the plaintiff:
5.1in his professional career, is compulsive liar;
5.2in his professional career, is a manipulator of innocent people;
5.3in his professional career, is a person who psychopathically inflicts pain on other persons;
5.4is a person who, in his professional career, suffers a chronic mental disorder which may manifest in violence, as to make him dangerous to others;
5.5is a person whose mental disorder leads him to conduct himself in ways that cause fear to his work colleagues and associates; and
5.6is a psychopath.
Needless to say, these imputations, all said to arise from the first WorleyParsons email, are of a serious character.
The second underlying matter to record is that the first WorleyParsons email is accepted by the defendant to have been published by him anonymously to Messrs William McGillivray and Andrew Wood of WorleyParsons (see the admission at par 4.1 of the amended defence).

Qualified privilege

The first substantive argument concerns the defendant's attempted pleading of a defence of common law privilege - raised in defence of this first publication by par 4.2 of the amended defence.
The common law qualified privilege plea in the amended defence is both lengthy and convoluted. I will set out only a small aspect, as regards the attempted raising of a qualified privilege defence in the following terms:
4.2The defendant says that, in the event of the Court finding that the First WorleyParsons Email bore any of the meanings pleaded by the plaintiff in [par] 5 of the amended statement of claim, defamatory of him:
4.2.1the First WorleyParsons Email was published on an occasion of qualified privilege in that, at the time of its publication:
4.2.1.1WorleyParsons had made an offer of employment to the plaintiff
4.2.1.2the defendant was the managing director of Powertech and wrote and caused to be published the first WorleyParsons email in that capacity;
The substantive pleading issue that arises is whether it is open to the defendant to invoke this privilege, bearing in mind an undemanding arguability threshold that is applicable on a strikeout application, and what is admitted to have been his anonymous email communication to WorleyParsons. The plaintiff argues this is simply not open conceptually, as a respectably arguable defence. The defendant, of course, disagrees.
Counsel for the plaintiff was prepared to accept that there could be occasions, such as a report to the Police or to the Crime Stoppers hotline, where an anonymous communication may be protected by qualified privilege.
Nevertheless, it was put that where it was clear the information had been volunteered by the defendant to Messrs McGillivray and Wood of WorleyParsons - under circumstances of a pending offer of employment to the plaintiff by WorleyParsons, an invocation of the common law privilege for this anonymous communication was wholly untenable.
Against that proposition the defendant's written reply submissions contended:
What is relevant is whether there is a sufficient community of interest between the defendant and the recipients of the email. The defendant has to demonstrate that he had an interest or a legal, social or moral duty to make the publication to the person to whom it is made and that the person to whom it is made, had a corresponding interest or duty to receive it. He must plead the relevant facts that he relies upon as giving rise to that duty or interest.
The defendant contends he acted legitimately, by par 4.2.1.2 and was
not required [to] demonstrate that the recipient understood, or appreciated the basis upon which he was making the publication.
Various subparagraphs within par 4.2 of the amended defence repeat that the first WorleyParsons email communication was published by the defendant (albeit anonymously) in Mr Grimmer's capacity as the managing director of Powertech (see 4.2.1.2), or that Powertech had certain interests in the communication of such matter to WorleyParsons (see 4.2.1.10.1). The amended defence also refers to the asserted common and corresponding interests of Powertech, the defendant and WorleyParsons in the subject matter of this communication (4.2.1.10.3). There followed a reference to Powertech's asserted social or moral duty to disclose certain matters (about Mr Findlay) to WorleyParsons (4.2.1.11).
I note as well references to Mr Grimmer acting 'in his capacity as the managing director of Powertech' in publishing this communication 'in the reasonable protection of Powertech's own legitimate interests' (see 4.2.1.12). That plea is highly problematic. Clearly, it is Mr Grimmer, not Powertech, who seeks the protection of this privilege against defamation. Nothing on the face of the plea can suggest that the anonymous email was sent on behalf of that corporation. Because it was sent anonymously the email could not meet that description, in any event.
Towards the common law concerning the availability of a qualified privilege as a defence to defamation, I should mention the High Court's recent decision Papaconstuntinos v Holmes à Court [2012] HCA 53; (2012) 87 ALJR 110 (French CJ, Crennan, Kiefel and Bell JJ). For the circumstances of that appeal (which concerned a volunteered communication by the respondent to the State Secretary of the Construction, Forestry, Mining and Energy Union (CFMEU)) the plurality said:
The defence of qualified privilege at common law has been held to require that both the maker and the recipient of a defamatory statement have an interest in what is conveyed. This is often referred to as a reciprocity of interest, although 'community of interest' has been considered a more accurate term because it does not suggest as necessary a perfect correspondence of interest. The interest spoken of may also be founded in a duty to speak and to listen to what is conveyed. [8] (citations omitted)
The Papaconstuntinos plurality also concluded there was no necessary requirement in order to attract protection of common law qualified privilege that a publisher of a defamatory publication show any 'pressing need' to justify the making of the volunteered statement (see [21], [32] and [33]).
Returning to par 4.2, to evaluate what is argued by the plaintiff to be the fatal conceptual anonymity obstacle, my view is that for the presenting circumstances of this defence pleading, the plaintiff's strikeout objection must be upheld - even applying the undemanding interlocutory threshold to this foreshadowed defence. The present case is anything but a Crime Stoppers reporting scenario. The 'poison pen' character of this anonymous communication inherently detracts from any serious suggestion of a legitimate interest in the communicator, as regards the chosen subject matter of the communication vis‑a‑ vis the plaintiff.
Even more substantively, however, what interest could the recipient of (putative employer of Mr Findlay) this email hold in the content of what was received as an entirely anonymous communication? This can hardly be a community of interest where half the community is, by choice, unidentifiable. Anonymity of the underlying source casts an immediate doubt upon the veracity of the communicated information. For all the recipient knows, the information conveyed might be fourth-hand or worse, pub gossip, or even pure malevolent character assassination. The veracity of the information given simply cannot be checked from its (anonymous) source.
One could, perhaps, just (theoretically) accept a potential arguability as privileged of a volunteered communication of this kind, if it was openly sent by an identified managing director of a corporation. But that is far from this case.
On my assessment, this anonymous email communication sent in the present circumstances lacks an essential ingredient of credibility in order to be assessed, even potentially, as the kind of communication this recipient might have held a 'sufficient interest' in.
This anonymity deficiency is fatal, in my view, to the common law plea of qualified privilege, currently seen under par 4.2.
By extension, my conclusion equally undermines an attempted incorporation of the same material into a plea of statutory qualified privilege, by s 30 of the Defamation Act 2005 (WA) (Defamation Act) seen at par 4.2.2.
The par 4.2 defence plea culminates at par 4.2.1.11.4, concerning Powertech's (not Mr Grimmer's) alleged social or moral duty to disclose to WorleyParsons matters bearing upon WorleyParsons' decision to employ Mr Findlay:
[H]aving regard to the plaintiff's character disclosed by the matters set out herein, the plaintiff was not a person with whom employees of Powertech and/or WorleyParsons desirably ought have further contact. (my emphasis in bold)
The reference to 'herein' means the whole defence pleading. That is an entirely unacceptable and embarrassing 'kitchen sink' plea. The 'matters set out herein' indiscriminately vacuums up whatever is liberally displayed anywhere across 85 pages of pleaded material.
Quite properly, that plea was not sought to be defended by counsel for the defendant. It is the paradigm example of an embarrassing plea. It must be struck out.

Justification pleas and contextual truth

Next arises the expressed multiple concerns over the defendant's pleas of truth, and also discretely invoking s 25 of the Defamation Act 2005 (WA), to all of the plaintiff's six imputations, as found under par 5 of the ASOC.
Here, the relevant pleas of justification are seen under par 5.2 (as regards imputation par 5.1, seen set out above) par 5.5 (as regards the imputations as seen set out in par 5.2 of the ASOC) par 5.7 (as regards the imputation under par 5.3 of the ASOC), par 5.10 (as regards the imputation seen under par 5.4 of the ASOC), par 5.12 (as regards the plea of substantial truth in respect of the imputation under par 5.5 of the ASOC), and finally, at par 5.14 (as regards the imputation under par 5.6 of the ASOC).
During the course of argument attention came to focus as well upon the defendant's alternate pleas of contextual truth, invoking s 26 of the Defamation Act. They are raised by the defendant under his pleas in the amended defence, seen at pars 5.3, 5.8 and 5.13. Since that attack raises a fairly confined series of arguments, it is convenient to dispose of that issue before moving to evaluate the far lengthier arguments affecting the justification pleas.

Contextual truth plea

A plea of contextual truth proceeds on the basis a defendant may prove that published matter carries, beyond the defamatory imputation, one or more further imputations, that are substantially true. These further imputations are of such a magnitude that other defamatory imputations, even if established, are effectively subsumed - in terms of their defamatory impacts - by the greater magnitude of the more serious imputation being proved as true. Hence, as is sometimes said, there cannot be any further harm done to the reputation of a plaintiff, due to more overwhelming damage caused by reason of the substantial truth of the contextual imputation. See to that end observations rendered in Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd [2013] WASC 347 [57] - [58] and the citation of authority at [58], particularly by Le Miere J in Ives v The State of Western Australia [No 8] [2013] WASC 277 [81] – [89] and the cases there summarised.
Here it was accepted by counsel for the defendants that the contextual imputations enumerated at pars 5.3, 5.8 and 5.13, if made out, would be materially less damaging to the plaintiff's reputation than the imputations which the plaintiff contends for in the ASOC. On that basis, they must be struck out as conceptually misconceived. No serious attempt was made to defend these attempted pleas of contextual truth.
As an aside, the defendant's written submissions (by reply of 14 April 2004) expressly confirm that the defendant does not attempt to raise any (lesser level) Polly Peck imputation defences: see par 22. A possible view to that end by the plaintiff was said to be a 'misconception' of the defence pleading. The defendant's written submissions admitted:
Paragraph 5.2 and its equivalents are not styled as Polly Peck defences. They do not raise alternative imputations. They set out the material facts upon which a defence of substantial truth is raised (see s 25 of the Defamation Act 2005).
I turn back finally then to the multiple pleas of substantial truth by s 25 of the Defamation Act. It is (unfortunately) necessary to individually examine all six distinctly pleaded responses to the plaintiff's six argued imputations said to arise under the first WorleyParsons email.

Statutory truth defence pursuant to s 25 of the Defamation Act

Essentially, I am concerned, as regards the first WorleyParsons email, with par 5 of the amended defence. This begins with par 5.2, dealing with ASOC imputation 5.1.
In essence, it will be seen that apart from imputation 5.6 each of the six imputations in par 5 of the ASOC are denied by the defence as even arising - and are said, in the alternative, to be substantially true, under s 25 of the Defamation Act.
The plaintiff advances an in principle, twofold attack against each of the defence pleas of justification. First, the plaintiff contends that even at a relatively undemanding interlocutory strike out standard, the assembled particulars do not rise, assessed either alone or together, to delivering what is even a conceptually arguable defence (of statutory justification) against each imputation.

Second, it is said that scant or wholly irrelevant materials as foreshadowed by the justification particulars are, on analysis, so bereft of substantive content as to be viewed, overall, as embarrassing under Rules of the Supreme Court O 20 r 19(1)(d) (RSC).
Evaluations of the first publication will necessarily carry 'knock-on' consequences for most of what follows, within the balance of the amended defence document concerning its residual responses to the 12 further publications complained of. The amended defence currently drawn repeats and seeks to incorporate by reference many of the first publication defence pleas under scrutiny, as well as multiple justification particulars as assembled for the defence seen pleaded to the first WorleyParsons email.
Given the highly pejorative content visible in many of the impugned particulars of justification currently provided, my reasons at points must necessarily skate over some underlying pleaded details, so as to not unnecessarily exacerbate or render extra harm prior to a substantive trial.

Justification of ASOC imputation 5.1

As now seen, ASOC imputation 5.1, drawn from the first WorleyParsons email, is that the plaintiff 'in his professional career, is a compulsive liar'.
The statutory justification response which is presented under amended defence par 5.2 (in the event of such meaning being established and also being found to be defamatory) is:
The imputation was substantially true in that the plaintiff is a compulsive liar, or alternatively a liar, evidenced by, or to be inferred from the following facts:
There follow, at pars 5.2.1 through 5.2.18, a discrete assembly of mostly unrelated incidents - ranging across a time period from 'about the 1990s' (particular 5.2.1) to 'December 2005' (particular 5.2.9).
I repeat again that it was clarified and confirmed by the defendant's written submissions of 14 April 2014, par 2.2, in the face of the expressed doubts on that issue on behalf of the plaintiff, that these were not Polly Peck pleas and, rather, represented the (attempted) invocation of s 25 of the Defamation Act.
Noting that position, my view is that what is pleaded is clearly not an acceptable plea of substantial truth against the first imputation that the plaintiff is, in his professional career, a compulsive liar.
Merely to seek to prove at trial the truth of a plainly lesser imputation, namely, that the plaintiff is a liar, is an unhelpful and essentially unresponsive defence plea.
Nor is it acceptable to seek to justify against the plaintiff's imputation of 'compulsive liar', matters that are not directed at the plaintiff 'in his professional career'.
To the extent the provided particulars of justification are only directed to prove or support lesser pleaded imputations (in the accepted absence of any Polly Peck plea) the current pleas, in my view, are unresponsively disengaged. They are conceptually misconceived and must be struck out as untenable.
With the excision of pars 5.2.4, 5.2.5 and 5.2.16 there would then be essentially 15 distinct particularised incidents still relied upon. The defendant says that these incidents should not be viewed in isolation. They need, it is put, to be aggregated - to ascertain their combined effects. I acknowledge the merit in that holistic perspective which is advocated. Nevertheless, merely contending the force of an end creation is ultimately greater than the weight of individual parts, cannot shield individual components from some degree of legitimate empirical scrutiny.
Whilst reticent about setting out in these reasons too much detail of the impugned particulars of justification lest they possibly entrench reputational harm, I must observe against particular 5.2.1 that whatever might be said about its unresponsiveness to support a contention the plaintiff is a compulsive liar, it also raises nothing pointing to any incident from the plaintiff's past professional career. It only raises an incident about the plaintiff supposedly making accusations in the 1990s against another man about allegedly having had an affair with the plaintiff's daughter.
It is pleaded in the defence that the accusation was untrue, uttered spontaneously, and was made by the plaintiff without any reasonable basis. But even so, showing all that to be the case cannot arguably assist one iota towards the end objective showing the plaintiff to be liar, and let alone a compulsive liar, and let alone a compulsive liar in his professional career. The exercise is wholly misconceived.
Other impugned particulars raise disparate non-specific incidents concerning the plaintiff's alleged issuing of inflated invoices (5.2.2), a (false) report of stealing, said to have been made by the plaintiff against certain individuals to the South African police (in August and October 2004) (5.2.3), causing an announcement to be made on the Australian Stock Exchange (ASX) concerning a listed corporation as to the magnitude of its order book (5.2.6), alleged wrongful disputation of the authority of a corporate employee to validly effect a consultancy contract with another person in 2004 (5.2.7), causing in November 2004 a counterclaim to be filed in proceedings in the High Court of South Africa asserting (by a sworn supporting affidavit) that an individual had misappropriated funds belonging to a corporation with which the plaintiff was associated (5.2.8); swearing an affidavit that the plaintiff had returned from a trip to the Democratic Republic of Congo in December 2005, when this is said not to be true (5.2.9); and finally, contending that the plaintiff had asserted to some unknown person in May 2005 (on behalf of a corporation) that the corporation was the owner of an arc furnace transformer, when this was not true (5.2.13).
Taken alone, none of these incidents, even if proved at a trial, can raise any realistic prospect of ever being assessed as capable of assisting to sustain the truth of an imputation that the plaintiff is a liar, let alone compulsive liar - even if one accepts that these matters are fact scenarios from the plaintiff's past professional career.
From a trial and case management perspective, these disparate incidents taken together manifest as alarming potential excursions, in terms of their foreshadowing a whole series of potential mini‑trials - which might in the end generate at best a 'he said, she said' scenario concerning whether there was ever some lie by the plaintiff, in contrast to a mere misunderstanding, or some other exculpatory feature.
Assuming the ordinary meaning of the word 'liar' applies, as I think it must, what needs to be shown is some underlying factual base to contend out of these individual incidents that the plaintiff articulates or communicates to someone else what are false statements of fact, whilst also knowing these statements are, indeed, false at the time. The materials as assembled are shaky, at best, to that end. Nor taken in combination do they rise to a status higher than the weakness of each individual component.
I mention two more paragraphs, pars 5.2.17 and 5.2.18, as an illustration of the overall threadbare character of the present justification particulars.
5.2.17.As managing director of [a corporation in WA] the plaintiff represented to shareholders that the government of [the Democratic Republic of] the Congo had demonstrated its commitment to fiscal and mining reform and that a new wave of confidence had returned to the region which he knew to be false when:
5.2.17.1it was not true;
5.2.17.2there was no reasonable basis to do so.
A contention that a statement to shareholders concerning some fuzzy commitment by or in the government of the Democratic Republic of the Congo (DRC) (at some unstated point in time) clearly goes nowhere. Invoking bare rhetorical puffery as a basis to justify the imputation of 'liar', let alone 'compulsive liar', against the plaintiff, is wasteful and disturbing.
From a case management perspective, to countenance a mini-trial within the trial, to explore such a mercurial issue as a foreign government's stated 'commitment' to fiscal and mining reform is pointless. The plaintiff's statements about such a 'commitment' do not advance the cause of showing him to be a compulsive liar. The mooted exercise would be an uncontrollable and wasteful diversion, with no trial benefits. I cannot allow the trial to go 'off the tracks' in this fashion, before it even begins.
Next, pars 5.2.18 to 5.2.20 present in these terms:
5.2.18As managing director of [a corporation in WA] the plaintiff represented to shareholders, in 2003, that the project he proposed of smelting copper in the Congo, mined by an impoverished Congolese workforce, was 'low cost and low risk' and that the board of [the corporation in WA] was confident that nothing could stand in the way of the successful production of blister copper and strong cash flows in the first quarter of 2004 which he knew to be false when:
5.2.19it was not true;
5.2.20there was no reasonable basis for doing so.
Again, this aspect of the attempted justification exercise only needs to be glanced at for its conceptual deficiency to be apparent. It is self evidently untenable as any sort of basis to justify what is a serious imputation that the plaintiff is a liar, indeed, a compulsive liar.
Allowing the opening up at trial of debates over impoverished workforces in African countries in a context of assessing some mining venture against the wholly porous criteria of 'low cost and low risk' - to show the plaintiff is a liar based on something said back in 2003 by way of what at best would be a prediction, would be an outrageously wasteful and unproductive excursion into irrelevance. This aberrant plea must be excised immediately, before it causes further costs to be incurred. It stands no prospect of advancing any rational line of defence. It should be put out of its present misery immediately and permanently. Nor can it be sheltered under some aggregated grafting together process of its proximity to other, less heretical particulars.
By my assessment, all of par 5.2 must be struck out as failing to disclose any arguable defence towards s 25 of the Defamation Act 2005.

Substantial truth of ASOC imputation 5.2

The imputation with which par 5.5 of the defence would engage, by the defence of substantial truth under s 25, contends the plaintiff:
In his professional career, is a manipulator of innocent people.
Particulars seeking to make good that contention are seen to incorporate by reference particulars from par 5.14.5.
A long march required within the pleading to those particulars (found at page 21 of the amended defence) ultimately shows no great leap forward. Finally, it unearths only one particular - otherwise raised in a distinct context of forming part of the defence of truth raised against imputation 5.6 (ie, attempting to meet the imputation that the plaintiff is a psychopath). This one particular (with truncations to protect certain parties) reads:
On or about 15 March 2012, the plaintiff sought to influence, manage, use or control R [name redacted] an employee of WorleyParsons, to his own advantage by artful or indirect means, in that the plaintiff, a former South African, sought to induce R, also a former South African, by appealing to their shared South African heritage, into breaching the duty of confidence which R owed to R's employer WorleyParsons, by requesting R, in writing in Afrikaans, to provide the plaintiff with information, which [the plaintiff] knew to be confidential to WorleyParsons, as the reason why WorleyParsons had withdrawn whatever employment arrangements it had with [the plaintiff].
The obvious deficiency in this plea is that it does not manifest in relation to any incident in the plaintiff's professional career, noting particularly the (late) asserted date of the incident. The contention under par 5.5 of the amended defence is that this is unnecessary - as the plea of substantial truth is only in relation to the plaintiff being a manipulator of innocent people. But that is not a sufficient response joining issue against what is the plaintiff's pleaded imputation, in my view. What is raised under the amended defence is conceptually inadequate, on that basis alone.
Even if that issue were not a problem, however, what looks to be a bare request as allegedly made to WorleyParsons employee R, conveyed in a language other than English, and made as between two former South African citizens (so-called by the plea) does not, on my assessment, without a lot more, amount to arguable manipulation. On that further basis, I must strike out the plea as untenable.

Justification of ASOC imputation 5.3

The next imputation giving rise to the defendant's impugned plea of justification and particulars is:
5.3In his professional career, [the plaintiff] is a person who psychopathically inflicts pain on other persons.
The defendant's justification response under the amended defence is found at par 5.7 of the amended defence. It is necessary to set out par 5.7, although I will again omit providing some substantive details of the surviving particulars, save to the extent necessary.
The defence plea seen at par 5.7 relevantly provides:
[T]he imputation [in par 5.3 ASOC] is substantially true in that the plaintiff is a person who has inflicted both real and metaphorical pain on other people, evidenced by, or to be inferred from the following facts. (my emphasis in bold)
It can readily be observed that, again, this defence plea of justification also omits any reference to the plaintiff's 'professional career', but as well to address the work of the plaintiff's adverb, 'psychopathically'.
The approach of proving only 'metaphorical pain', in contrast to proving real pain, in my view, is brazenly disingenuous. It is legally misconceived. It provides a basis for the court to sanction this plea by an indemnity cost order. That in its own right is more than enough for the plea and its accompanying particulars to be struck down as wholly untenable. Nevertheless, I offer some extra observations for the benefit of any further iteration of a defence.
The attempted incorporation at this point of aspects from the later par 5.14 is confusing and unhelpful. As seen when the reader eventually arrives at that destination, par 5.14 invokes substantial truth as a defence in relation to an imputation at par 5.6 of the ASOC, namely, that the plaintiff is a psychopath. That plea carries its own deficiencies, as I explain in dealing with that imputation in due course. Incorporation by reference of the underlying deficiencies via par 5.7(a) of the particulars, simply imports what is a terminal infection.
Next, justification particular 5.7(b) can be seen as directed to conduct over a time period, 'in or about 1997 and 1998'. A geographic location for the conduct is given as 'Kapar Malaysia'. The contention is that, 'without any or any adequate reason, [the plaintiff] verbally abused, on a weekly basis (and so frequently as to be abnormal in a business environment) some nine identified employees of Powertech CIS', as well as some unidentified Malaysian employees (it is said their names cannot be recalled by the defendant). I assume that this was an attempt to meet the chosen criteria of 'metaphorical pain'. Even so, no actual incident of verbal abuse then emerges. Nor is the precise content of any abuse ever identified. Nor is there any context provided for alleged incidents of so-called 'weekly abuse' of employees of Powertech CIS.
Hence, even if this material could surmount the hurdle of being assessed as an infliction of pain (on the basis 'pain' might encompass an infliction of mental anguish) what emerges is still nowhere near enough. To justify the plaintiff's imputation such pain infliction conduct would need to be shown to be undertaken 'psychopathically'. There is no attempt at proving that. This is another terminal conceptual problem.
Paragraph 5.7(c) attempts a similar goal, as regards incidents 'in or about the 1990s, at Powertech CIS's offices in Osborne Park … where [the plaintiff] verbally abused [employees] on approximately a weekly basis (so frequent as to be abnormal in a business environment)'. But no employees are identified. This plea suffers the same deficiencies as particular (b), save it is more vague.
Paragraph 5.7(i) sees a 1997 incident, now involving some unidentified South African employee of Powertech CIS being raised - this time in a context of the plaintiff's alleged screaming at that employee and the throwing of a broom. It is not clear whether the broom and the unidentified employee ever intersected. But the plea does not come close to supporting the contention that the plaintiff psychopathically inflicts pain on people in his professional career.
Paragraph 5.7(j) seeks to raise a series of so-called admissions, allegedly made by the plaintiff to a person named as a 'Robert Charles'. The first of the admissions is as regards admitted acts of violence to members of the plaintiff's family. But the plea has no arguable connection to the plaintiff's professional career. Nor could this very vague alleged admission be used to justify a contention that pain had been inflicted psychopathically upon the plaintiff's family members.
Further admissions supposedly made by the plaintiff to Mr Charles under subpars (b), (c) and (j) are so sparsely bereft of real detail as to be legally embarrassing. Perhaps it is appropriate at this point to recall the observations made pre‑Judicature Act in J'Anson v Stuart (1787) 1 TR 748; 99 ER 1357 by the Court of Common Pleas (and still cited as authority by Gatley On Libel And Slander (12th ed, 2013) par [27.11] at footnote 65) per Ashurst J at 752.
When [the defendant] took upon himself to justify generally the charge of swindling, he must be prepared with the facts which constitute the charge in order to maintain his plea: then he ought to state those facts specifically, to give the plaintiff an opportunity of denying them; for the plaintiff cannot come to the trial prepared to justify his whole life.
Like observations were rendered in Wootton v Sieiver [1913] 3 KB 499 per Lord Kennedy:
In every case in which the defence raises an imputation of misconduct against him, the plaintiff ought to be enabled to go to trial with knowledge not merely of the general case he has to meet, but also of the acts which it is alleged he has committed and upon which the defendant wishes to rely as justifying the imputation (508).
Bankes LJ in Godman v Times Publishing Co Ltd [1926] 2 KB 273, 270 said:
Until sufficient particulars of the plea of justification are given the issues in the actions are not defined.
In Hunt v Times Newspapers Ltd [2012] EWHC 110 (QB) Eady J in the Court of Queen's Bench at [25] applied Ashurst J's venerable observations from J'Anson v Stuart at 752 above. He assessed them as still of contemporary viability, by reference to the right to a fair trial (under article 6 of the European Convention on Human Rights (1950)).
The Hunt case is important. It provides a modern evaluation of justification pleas raised, attempting to meet the general allegation that the claimant was, amongst other things, a 'senior crime figure': see, for instance, [48], [62] and [63]. See as well the 2013 edition of Gatley at [27.11].
The defendant's particulars manifestly fail to meet these expectations, which are well understood for justification pleas.
The last particular of justification under par 5.7(k) is that the matters stated by the plaintiff (essentially by way of admission) to Mr Robert Charles (see (j)) were said to scare and intimidate that person (ie, Mr Charles).
But Mr Robert Charles stands otherwise as unidentified by the defence pleading - save the so-called admissions made by the plaintiff to Mr Charles rather look to be said as having been made in South Africa, at a wholly unspecified past time.

There presents no plea, for instance, of an employment relationship as between the plaintiff and Mr Charles. Hence, two men (Mr Findlay and Mr Charles) might just have been sitting on adjacent bar stools somewhere in South Africa at some time in the past for all that is said. How then all that was said between them at the time might somehow be said by the plaintiff to 'scare and intimidate', to thereby constitute an exercise in the plaintiff psychopathically inflicting pain on Mr Charles - presents only as an agonising mystery to me. Again this is all unacceptable, wholly inadequate and legally embarrassing.

Plea of truth to ASOC imputation 5.4

Imputation 5.4 in the ASOC is that the plaintiff:
[I]s a person who in his professional career suffers a chronic mental disorder which may manifest in violence, so as to make him dangerous to others.
The defence plea seen at par 5.10 and attempting to raise substantial truth under s 25 of the Defamation Act, is:
[T]he imputation is substantially true in that the plaintiff is a person who displayed chronic antisocial behaviour, including behaviour that was sufficiently violent as to make him a danger to others.
That attempted plea of justification is devoid of all reference to the plaintiff's professional career. It also omits any engagement against the plaintiff suffering from a chronic mental disorder (the plea being 'displayed chronic antisocial behaviour'). Likewise, manifestations of violence as regards the chronic mental disorder are ignored, other than the reference to making him a danger to others.
The base plea is a misconceived foundation for essentially incorporated particulars (from elsewhere) which follow. The given particulars would incorporate by reference material under either subparagraphs (5.14), or from previous subparagraphs in 5.7.
The particulars provided (such as they are) are, in effect, a lazy direction to the reader to wallow elsewhere to derive information, effectively on a self help basis.
After lurching through a forest of irrelevance, the journey ends at a barren desert - where a justification exercise by reference to unearthing any possibly relevant facts perishes, starved completely of any intellectual sustenance. Nothing can ultimately be found even hinting at how or why it might possibly be shown that this plaintiff in his professional career truly does suffer a chronic mental disorder which may manifest in violence. That task is not even approached.

Justification of ASOC imputation 5.5

Next, I turn to ASOC imputation 5.5, which is sought to be justified by par 5.12 of the amended defence. I remind myself of the plaintiff's imputation. Relevantly, it is the plaintiff 'is a person whose mental disorder leads him to conduct himself in ways that cause fear to his work colleagues and associates'.
The amended defence, par 5.12, pleads the imputation is substantially true 'in that the plaintiff is a person who displayed chronic antisocial behaviour, including behaviour that caused fear in his work colleagues and associates'.
That plea first omits any reference to, or engagement with, the notion of a mental disorder. Second, the defendant's phrase 'chronic antisocial behaviour' has no link to what is found under imputation 5.5. The justification plea culminates in a characterisation of some alleged antisocial behaviour as including behaviour that has caused fear to work colleagues or associates.
Given it is always accepted, and for all justification paragraphs I have mentioned, that what is being offered should not be viewed as an attempted Polly Peck plea to the truth of lesser imputations, it can be swiftly concluded that the formulation of this justification plea is not sufficiently responsive to the plaintiff's imputation.
Examination of an ensuing collage of five particulars only confirms that to be the case. The particulars commence with an attempt to incorporate a subsequent defence plea towards ASOC imputation 5.6, namely that the plaintiff is a psychopath. Again this is confusing and unhelpful, as will be apparent once that imputation is reached. So also is a reference back to particulars of amended defence par 5.7.
The amorphous reference to so-called 'attributes of the plaintiff', as seen under par 5.12(c), supposed to be identifiable elsewhere, is also vague and unacceptable.
Paragraph 5.12(d) merely identifies a person who some 16 or 17 years ago whilst in Malaysia and said to be under the alleged supervision of the plaintiff, supposedly felt such fear and personal endangerment he armed himself with a screwdriver whilst at work. This goes nowhere. Nor does par 5.5(e), mentioning the same person, as having apparently called a meeting of Powertech CIS's Malaysian employees in March 1998. This is non-responsive. So also is par 5.7(f), as regards that person's hurried leaving of Malaysia, also in March 1998.
None of this material comes within a 'bull's roar', even aggregated, towards potentially sustaining as true the imputation of a mental disorder in the plaintiff leading him to acts of conduct causing fear in work colleagues and associates.

Justification of ASOC imputation 5.6

The final imputation, potentially the most grave against Mr Findlay, at least on paper, is found at ASOC 5.6, namely that the plaintiff 'is a psychopath'.
By par 5.14 of the amended defence this imputation is admitted as arising out of the first WorleyParsons email (in contradistinction to the preceding par 5 ASOC imputations, none of which are admitted).
A defence of justification is attempted again, this time in terms that the imputation is substantially true, in that:
the plaintiff is a person who displays psychopathic behaviour, evidenced by or to be inferred from [events then described].
Again, I reiterate this plea is not offered as a Polly Peck plea to some lesser imputation. That leads me to the correlative conclusion that this attempted raising of a defence of substantial truth is by its terms clearly not directly or sufficiently responsive to this imputation. Merely because someone may have displayed psychopathic behaviour in the past is no proper basis to contend the person is necessarily 'a psychopath'. There is a gulf between those two conditions. One is behavioural, the other is diagnostic - ie, has antisocial personality disorder formerly known as psychopathy (see, eg, American Psychiatric Association, DSM-5 (5th ed, 2013) pages 659 - 663)). That obvious disconnect renders what follows as conceptually misconceived: see, in that respect, the par 5.14.4 (the plaintiff is a liar), par 5.14.5 (the plaintiff is manipulative in that he seeks to influence, manage, use or control people to his own advantage by artful or indirect means), par 5.14.6 (the plaintiff lacks feelings of remorse or guilt for the losses, pain and suffering suffered by people as a result of his conduct). Again I seek to presently diminish the impacts from this misconceived material by not setting it out any more fully.
There is nothing new here not already canvassed. Attempts at wide incorporations by reference display no sufficient connection to this imputation. Paragraph 5.14.8 contends, for instance, the plaintiff is unreasonably rude and aggressive. But no basis looks to be advanced for why this condition makes any contribution towards supporting an outcome that this plaintiff displays psychopathic behaviour, let alone is a psychopath in the diagnostic sense.
Particulars to par 5.14.8 then mention a 1998 incident of the plaintiff screaming at the defendant. Then in 2003 emerges a reference to an unidentified Iranian businessman, whom the plaintiff is alleged to have called a 'camel trader' (and then who was asked to close the door on his way out).
These pleas above are almost laughably inept as regards meeting the seriousness of the psychopath imputation. The paucity of detail as regards alleged persons on the receiving end of the asserted rudeness is a lesser deficiency of particularity - but valid nonetheless.
The same observation can be made about the particulars to par 5.14.9, as regards a plea that the plaintiff 'has inadequate control of his anger and temper'.
The plea at par 5.14.10 that the plaintiff is impulsive, is inadequately supported under particulars referring to two incidents in 1998 at Kapah, Malaysia, involving the plaintiff and the defendant. These are all equally underwhelming. The unnecessary and oppressive reference back to the matters earlier raised at par 5.7 of the amended defence merely vacuums up more deficiencies which I earlier identified.
The end position is that the defendant's exercise in attempted justification manifestly fails by a long distance and must be struck out.
Leave to replead is not opposed. That exercise should happen on a fresh canvas as requested by counsel for the defendant (who was not the author of the amended defence pleading).

General plea of bad character

The culmination plea in respect of the first WorleyParsons email, seen at par 6 of the amended defence traverses in all events the plaintiff's assertion of injury to his reputation or distress from the first WorleyParsons email's publication. This is now seen as advanced on a basis of the plaintiff's asserted bad reputation. Paragraph 6 in the amended defence reads:
6.The defendant denies each and every allegation in this paragraph and says further that if, which is denied, the first WorleyParsons email conveyed the meanings contended for by the plaintiff in par 5 of the amended statement of claim, or any of them, the plaintiff is not entitled to any award of damages owing to his bad reputation as at the time of the publication he had the (bad) reputation of a person who:
6.1lies;
6.2manipulates people for his own personal gain;
6.3unreasonably verbally abuses people;
6.4unreasonably physically abuses people;
6.5demonstrates no remorse or guilt for the unreasonable way he treats people.
The initial attack against this plea under the plaintiff's first tranche of written submissions said:
102.Throughout the defence, the defendant does not plead in whose estimation the plaintiff was apparently held.
103.Taking the First WorleyParsons Email as an example, if the estimation was held by the recipients of the first WorleyParsons email [Messrs McGillivray and Wood], this is unsustainable – Messrs McGillivray and Wood were the persons offering employment to the plaintiff on behalf of WorleyParsons.
104.Even if 'bad reputation' could be established (which is denied) the plaintiff would still be entitled to special damages. The plea that the plaintiff is 'not entitled to any award of damages' cannot stand.
Upon the hearing before me, the par 104 submission above was accepted. Some words within par 6 were also accepted as appropriate for excision. It was accepted that the phrase 'any award of' was to be removed in any new iteration of the defence.
Some particulars provided under par 6 (subsequently removed) had been criticised by the plaintiff as not 'confined to the sector of the plaintiff's character relevant to the [defamation]', invoking Scott v Sampson (1882) 8 QBD 491, 504 (Cave J). These observations were recently affirmed by the New South Wales Court of Appeal in Australian Broadcasting Corporation v McBride [2001] NSWCA 322; (2001) 53 NSWLR 430 [28] (Ipp AJA) - concerning the need for evidence of bad reputation to 'be relevant to the part of a plaintiff's reputation capable of being harmed by the defamatory material'.
Whilst the first particulars originally provided by the defendant as to alleged bad reputation were removed under the amended defence, a number look to have been rebadged as asserted material facts, under subparagraphs of par 6 (see pars 6.1 through 6.5).
The Reply submissions by the plaintiff of 11 April 2014, at par 102, then further contended that the reframed assertions as to bad reputation were no longer sufficiently particularised and that a bland assertion of bad character was not clearly open to the defendant.
Against that attack, attraction was then directed by the defendant to RSC O 34 r 6 with that rule's express requirement that where evidence in mitigation of damages was to be led by a defendant in a libel or slander case 'or as to the character of the plaintiff' that such evidence‑in‑chief shall not be allowed without leave unless seven days prior to trial the defendant 'furnishes particulars to the plaintiff of the matters as to which he intends to give evidence'. Hence the defendant was responding by suggesting that the time for it to provide proper details of bad character had not yet arrived and that seven days before trial would suffice under RSC O 34 r 6.
Today any notion of a plea of bad reputation could be supported by details only provided under a time frame of (at least) seven days before the trial is untenable. Clearly, RSC O 34 r 6 now looks well out of harmony with modern notions of early disclosure and sensible case flow management. Late surprises have no place in sensibly managed civil litigation.
Furthermore, RSC O 34 r 6 also presents as out of harmony with the practice of an almost invariable pre‑trial exchange of witness statements ordered in most civil defamation trials in superior courts. Witness statements are generally exchanged significantly earlier than under the RSC O 34 r 6 one week time frame just prior to trial.
The plaintiff also complains at par 104 of its reply submissions that the defendant's bad reputation pleas against the plaintiff are not sufficiently confined to a sector of the plaintiff's relevant reputation, referring to Channel Seven Sydney Pty Ltd v Mohammed [2010] NSWCA 335; (2010) 278 ALR 232 [162]. There it was said:
The fundamental requirement of evidence of good or bad character is that it 'should be directed to that sector of a man's character which is relevant': Plato Films Ltd v Speidel (at 1140) per Lord Denning, a proposition accepted in the Court of Appeal in Morosi v Mirror Newspapers Ltd [1977] 2 NSWLR 749 (at 801). As Ipp AJA observed in ABC v McBride (at [17]) by 'character', Lord Denning meant 'reputation'. As the court explained in Morosi (at 801), 'relevant' meant 'relevant to the libel'.
I am not prepared to strike out this plea. I reach that view on the basis, first, that well before any trial begins witness statements are likely to be delivered and exchanged from the defendant. They will presumably provide some basis to support what is a serious plea. As to this, see Gatley at [33.30]. In the absence of such material being provided at that time the plea would be vulnerable to potentially being struck out as an abuse of process. Moreover, evidence amounting to no more than rumour or particular acts of misconduct will not be admissible: Gatley [33.35].
Furthermore, it is not possible to reach any conclusion as to whether such particulars as may later emerge would be incapable of being seen as bearing upon some relevant aspect of the plaintiff's character. That must be an issue for later.
In the end, par 6 of the amended defence may stand for the present, albeit as explained earlier, the amended defence as a whole needs to be redrawn completely.

Conclusion

The magnitude of the pleading deficiencies manifest under the amended defence, currently assessed merely against the first (of 13) publications as complained of is notable. The scale of the deficiencies and their oppressively assembled character warrants a very clear sanction from the court against this misconceived pleading: see Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. It is appropriate, in my view, prima facie, that there be an order for indemnity costs be made in the plaintiff's favour, which are ordered to be paid immediately. I will hear the parties about that if necessary.