Fletcher v POS Solutions Australia Pty Ltd - [2004] VSC 507

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 6582 of 2003

MARK TIMOTHY FLETCHER

TOWER SYSTEMS INTERNATIONAL (AUST) PTY LTD (ACN 007 009 752)

First Plaintiff

Second Plaintiff

POS SOLUTIONS AUSTRALIA PTY LTD
(ACN 006 195 400) AND ORS

Defendants

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JUDGE:	ASHLEY J
WHERE HELD:	Melbourne
DATE OF HEARING:	25 November 2004
DATE OF JUDGMENT:	9 December 2004
CASE MAY BE CITED AS:	Fletcher and Anor v POS Solutions Australia Pty Ltd
MEDIUM NEUTRAL CITATION:	[2004] VSC 507

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Defamation – application for leave to file Further Amended Defence and Counterclaim – proposed “Polly Peck” defence – whether available in light of David Syme & Co and Anor v Hore Lacy (2000) 1 VR 667 – proposed pleading of fair comment – rolled-up plea – need to plead the substance of alleged comment – proposed plea of qualified privilege – deficiencies of intended pleading.
Injurious falsehood – pleading – malice.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiffs	Mr C. Golvan, SC with Mr G. Hardy	The Law Offices of Barry Fried
For the Defendants	Mr M. Goldblatt with Mr B. Shaw	Adam Kempton

HIS HONOUR:

Statement of the Case

The corporate plaintiff and corporate defendant are competitors in the computer industry. It seems that they have been competitors for years. The plaintiffs and defendants other than the companies are closely associated with one or other of them.

The plaintiffs filed a writ on 7 July 2003. It pleaded more than one cause of action. Insofar as a plea of defamation was raised by paragraphs 8-13, it was founded upon an undated one page newsletter allegedly published by the defendants in or about November 2002. The gist of the pleaded meanings was as follows:

In the case of Tower Systems International (Aust) Pty Ltd (“Tower”), that –
·It falsely claimed that its computer software system (conveniently, “product”) was reliable. It did so knowing that its product was defective, and in an endeavour to conceal its deficiencies from the business public.
·The defect in its product caused users to be disturbed in their sleep to the point that it had impacted upon the commercial viability of their business.
·Almost all persons who had gone over to use the software (conveniently, “product”) of the corporate defendant, POS Solutions Australia Pty Ltd (“POS”) had stated the same reasons for doing so – in essence, that the POS product was superior to Tower’s defective product.

In the case of the other plaintiff, Mark Fletcher (alleged to be general manager and a director of Tower), that -
·he was lying when he said that the Tower product was reliable;
·he was complicit in Tower lying about the reliability of its product;
·he was engaging in false denigration of the POS product, and concealment of the defects of the Tower product, in the former case so as to direct attention away from the defects of the Tower product;
·he had intentionally misled the business public concerning the…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2004] VSC 507
Decision Date: 9 December 2004

CaseChat Overview and Summary

The case of Fletcher v POS Solutions Australia Pty Ltd involves an application for leave to file a further amended defence and counterclaim, focusing on issues of defamation and injurious falsehood. The dispute arose from allegations of defamatory statements made by the defendant, POS Solutions Australia, about the plaintiff, Mr Fletcher. The matter was heard in the Supreme Court of Victoria.

The central legal issues that the court had to address were whether the plaintiff could plead a "Polly Peck" defence, given the precedent set in David Syme & Co and Anor v Hore Lacy. Additionally, the court examined the sufficiency of the proposed pleadings regarding fair comment, the requirements for a rolled-up plea in defamation, and the adequacy of the plea of qualified privilege. The court also scrutinised the elements of malice in the context of the pleaded injurious falsehood.

The court concluded that the proposed "Polly Peck" defence was not available in light of the established case law. It found that the plea of fair comment was insufficient as it did not adequately specify the substance of the alleged comment. Furthermore, the court determined that the rolled-up plea was inadequate as it did not clearly outline the separate defamatory imputations. Lastly, the plea of qualified privilege was deemed deficient because it did not address the necessary conditions for its application. Consequently, the application for leave to file the further amended defence and counterclaim was dismissed.

The final orders of the court were that the plaintiff's application for leave to file a further amended defence and counterclaim was refused, and the matter was to proceed with the existing pleadings.

Orders