Granitto v Gostelow
[2018] WASC 242
•15 AUGUST 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRANITTO -v- GOSTELOW [2018] WASC 242
CORAM: LE MIERE J
HEARD: 23 MAY 2018
DELIVERED : 15 AUGUST 2018
FILE NO/S: CIV 1004 of 2018
BETWEEN: ALESSANDRA GRANITTO
Plaintiff
AND
CHRISTOPHER GOSTELOW
Defendant
Catchwords:
Practice and procedure - Interlocutory application - Application for further and better particulars - Defamation action - Whether particulars provided sufficiently specific and precise
Legislation:
Nil
Result:
Application granted in part
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M L Bennett |
| Defendant | : | Ms C Taggart |
Solicitors:
| Plaintiff | : | Bennett + Co |
| Defendant | : | State Solicitor for Western Australia |
Case(s) referred to in decision(s):
Ashcroft v Foley [2012] EWCA Civ 423
Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376
LE MIERE J:
Summary
In this action, the plaintiff claims damages from the defendant for the publication of an email which she says is defamatory of her. In his amended defence the defendant pleads the defence of truth and a 'Polly Peck' defence of truth. The plaintiff sought particulars of facts pleaded by the defendant in support of his pleas of truth. The defendant objected to answering most of the requests on the ground that he is not required to enunciate the issues that are to be tried, to identify the case that has to be met, or to enable the plaintiff to plead to the defence. The plaintiff now applies for an order that the defendant provide answers to the plaintiff's request for further and better particulars. For the reasons which follow the defendant should provide answers to requests 1, 2, 3, 4 and 6.2 of the plaintiff's request filed 26 February 2018 for further and better particulars of the defendant's defence. The defendant should amend [35.5] and [36.1] of his defence by deleting the word 'including' in each paragraph.
The plaintiff's claim
The plaintiff and Mr Marrapodi are employed by the State within the central office of the Department of Education (the Department) at Royal Street, East Perth (Central Office). Mr Marrapodi is the plaintiff's manager. The defendant is employed by the State within the Department and based at a different office. On 22 August 2017 the defendant met Mr Marrapodi at the Central Office. At the conclusion of the meeting, the defendant says there was an incident involving the plaintiff, Mr Marrapodi and the defendant. The defendant sent an email to his line manager, Ms Brown, recording his observations of the incident. With the defendant's authority, Ms Brown forwarded the email to other employees of the Department. The plaintiff says that the email is defamatory of her.
The statement of claim
In her statement of claim, the plaintiff says the email gives rise to the imputations that the plaintiff had behaved in her workplace in a manner such as:
7.1… to cause her fellow workers to be fearful;
7.2… to cause her fellow workers to feel threatened;
7.3… to give rise to concerns in a fellow worker that the plaintiff would physically attack them;
7.4… to cause a fellow worker to be severely traumatised.
The amended defence
By his amended defence, the defendant admits that he published the email to Ms Brown. He denies that he authorised Ms Brown to forward the email to other employees of the Department. The defendant denies that the email gives rise to the imputations pleaded by the plaintiff. The defendant says that the email gives rise to imputations that the plaintiff had behaved in her workplace in a manner such as:
9.… to cause [Mr] Marrapodi … and the defendant to be fearful;
10.… to cause Mr Marrapodi and the defendant to feel threatened;
11.… to cause the defendant to be concerned that the plaintiff might make physical contact with the defendant without his consent;
12.… to cause Mr Marrapodi to feel distressed.
The defendant pleads that on the basis of the facts pleaded at [20] ‑ [38] of his defence, the imputations set out at [9] to [12] of the defence are substantially true. The defendant pleads alternatively that if the imputations pleaded by the plaintiff at [7] of the statement of claim are found to have been conveyed, then on the basis of the facts set out at [20] ‑ [38] of his defence, those imputations are substantially true.
Paragraphs 20 to 25 of the defence set out the meeting between Mr Marrapodi and the defendant, its purpose, that it occurred at Mr Marrapodi's workstation in an open plan office at the Central Office, in which the plaintiff's workstation is also located, and that the plaintiff was present in the open plan office during at least part of the defendant's meeting with Mr Marrapodi. Paragraphs 26 to 29 refer to the initial exchange between the plaintiff and Mr Marrapodi after Mr Marrapodi's meeting with the defendant had concluded. Paragraphs 29 to 35 describe Mr Marrapodi leaving the office, the plaintiff following him and an exchange between the plaintiff and the defendant.
Paragraph 36 pleads that throughout the period when she spoke to Mr Marrapodi after his meeting with the defendant, until Mr Marrapodi had reached the bottom of the escalator, the plaintiff engaged in the behaviour then described. Paragraph 36 pleads that during the period of time described at [35], the defendant was fearful, removed himself from the plaintiff's vicinity and felt threatened. Paragraph 38 describes the defendant's observations of Mr Marrapodi after the incident.
Plaintiff's request for further and better particulars of defence
The plaintiff requested further and better particulars of [26], [27], [28], [35] and [36] of the defence. The defendant delivered a response to the request for further and better particulars on 8 March 2018. In the meantime, the defendant had amended his defence. However, the amendments are not relevant to the plaintiff's request for further and better particulars and it is sufficient to refer to the defendant's amended defence in these reasons. With one exception, the defendant made the same response to each request for further and better particulars:
The defendant objects to answering this request. The particulars requested are not required to truly enunciate the issues that are to be tried, to identify the case that has to be met or to enable the plaintiff to plead to [the relevant paragraph] of the defence.
The one exception was the response to the request for further and better particulars of [6.2] of the defence, to which I will refer later in these reasons.
Particulars of justification
The defendant must give details of the matters on which he relies in support of his plea of justification (truth); he must set out in his defence the facts and matters which establish that the words complained of are true in the meaning pleaded by the plaintiff, or in the alternative meaning pleaded by the defendant. Those facts and matters are commonly referred to as particulars of justification and pleaded as particulars. In this case the defendant has pleaded the facts and matters on which he relies to establish the truth of the imputations pleaded by the defendant, or alternatively the imputations pleaded by the plaintiff, as separate facts set out in [20] to [38] of the defence. I will sometimes refer to those facts and matters relied upon by the defendant as particulars of justification as a matter of convenience.
The general principles that apply when considering whether the particulars of justification are properly pleaded are well settled and were not in dispute between the parties. It is the application of those principles to the defendant's pleading that is in question. In short, particulars of justification must generally satisfy two requirements. First, they must be capable of proving the truth of the defamatory meanings sought to be justified. Secondly, they must be sufficiently specific and precise to enable the plaintiff to know the precise nature of the case against her and provide her with sufficient detail so she can meet it. See Ashcroft v Foley [2012] EWCA Civ 423, (Phil LJ & Sharp J with whom Elias LJ agreed) [49] - [50].
The imputations
The act with which the plaintiff is charged in the plaintiff's imputation is her behaviour which affected fellow workers in specified ways. The act with which the plaintiff is charged in the defendant's imputations is her behaviour which affected Mr Marrapodi and the defendant, or the defendant or Mr Marrapodi in specified ways. Thus, the defendant's pleading must identify the behaviour of the plaintiff relied upon to prove the truth of the imputations and the context in which that behaviour occurred with sufficient specificity and precision to enable the plaintiff to know the precise nature of the case against her and provide her with sufficient detail so she can meet it.
Defence [26], [27] and [28]
I will consider [26], [27] and [28] of the defence together because they are intertwined. They should also be seen in the context of [29] and [30] and the paragraphs which follow. Paragraphs 26 to 30 are:
26.After the defendant's meeting with Mr Marrapodi had concluded, the plaintiff:
26.1said words to Mr Marrapodi concerning words spoken by Mr Marrapodi to the plaintiff in anticipation of, or as a part of, Mr Marrapodi's departure from his place of work for that day;
26.2asked Mr Marrapodi questions relating to an employment recruitment process in relation to which the plaintiff had submitted an application.
27.Mr Marrapodi answered at least one of the plaintiff's questions referred to at [26.2] of this defence.
28.After providing an answer to at least one of the plaintiff's questions referred to at [26.2] of this defence, Mr Marrapodi declined to continue speaking with the plaintiff.
29.Mr Marrapodi left the open plan office.
30.The plaintiff left the open plan office and followed Mr Marrapodi.
The following paragraphs of the defence set out exchanges between the plaintiff, the defendant and Mr Marrapodi, and the plaintiff's behaviour towards the defendant and Mr Marrapodi. The matters set out in [26] to [28] are the introduction to, and the context in which, the plaintiff's alleged behaviour is said to have occurred. Indeed, that is the defendant's pleading. Therefore, the plaintiff must know what is alleged to have occurred in these initial exchanges.
In relation to [26.1] of the defence, the plaintiff requested that the defendant provide particulars of the words, or the substance of the words, spoken by Mr Marrapodi to the plaintiff, and of the words spoken by the plaintiff to Mr Marrapodi in response. In relation to [26.2], the plaintiff requested the defendant provide particulars of the words or the substance of the words constituting each of the questions asked to Mr Marrapodi by the plaintiff.
In the defendant's written submissions the defendant says that particulars do not themselves indicate the outer limits of what may be proved; they indicate, in effect, topics on which evidence may be led but the full effect of evidence led within the particulars may be greater than what the bare particulars themselves indicate: see Hayson v John Fairfax Publications Pty Ltd [2007] NSWCA 376 [20] (Hodgson JA, with whom Santow & Tobias JJA agreed). That is true, but does not derogate from the requirement of specificity and precision.
In this case, is it sufficient for the plaintiff to know that the defendant's case is that the plaintiff said words to Mr Marrapodi 'concerning words spoken by Mr Marrapodi to the plaintiff in anticipation of, or as part of, Mr Marrapodi's departure from his place of work for that day' and asked Mr Marrapodi 'questions relating to an employment recruitment process in relation to which the plaintiff had submitted an application'? In my opinion it is not. The contents of the email pleaded by the plaintiff, and admitted by the defendant, include that as Mr Marrapodi was leaving the office he spoke to the plaintiff to say 'good night, see you tomorrow'. The email goes on to say that the plaintiff then shouted out to Mr Marrapodi something about 'you didn't say goodnight' and there were further words about that. The email makes no reference to the plaintiff having asked Mr Marrapodi 'questions relating to an employment recruitment process in relation to which the plaintiff had submitted an application'. The defendant's pleading is that after answering one of the plaintiff's questions, Mr Marrapodi declined to continue speaking with the plaintiff and left the office, and the plaintiff then followed Mr Marrapodi and the exchanges between Mr Marrapodi and the plaintiff referred to in [35] and [36] of the defence occurred. What the defendant says Mr Marrapodi said to the plaintiff and the plaintiff said to Mr Marrapodi is the precursor to, and context in which, the subsequent altercation or shouting occurred. The reference in [26.1] and [26.2] to the plaintiff having said words to Mr Marrapodi concerning words spoken by Mr Marrapodi to the plaintiff in anticipation of his departure, and having asked Mr Marrapodi questions relating to an employment recruitment process in relation to which she had submitted an application begs the questions: What did Mr Marrapodi say? What did the plaintiff say? What questions did the plaintiff ask Mr Marrapodi relating to her employment application? Those particulars cannot be looked at in isolation. They are inextricably intertwined with the exchanges which followed.
Paragraph 27 of the defence is a teasing pleading. It says that Mr Marrapodi answered at least one of the plaintiff's questions referred to at [26.2] but does not say which. That may be significant. For example, if the plaintiff asked Mr Marrapodi some question about her employment application and Mr Marrapodi spoke to her but did not respond to that question and walked away, that may make the plaintiff's behaviour in following Mr Marrapodi more reasonable and proportional than if he answered her question about her employment application and she followed him to upbraid him about not giving her a suitable greeting on departing work for the day.
In the defendant's written submissions the defendant says that the general principle that in instances of slander the exact words said to have been spoken are required to be pleaded does not apply in this case. I agree. Whether or not the defendant must particularise words allegedly spoken will depend upon the nature of the defence. In this case it is not necessary for the defendant to state the exact words spoken by the plaintiff or Mr Marrapodi. However, the statements in [26.1] and [26.2] are insufficient. The defendant must state the substance of the words spoken by Mr Marrapodi to the plaintiff and the substance of words spoken by the plaintiff to Mr Marrapodi so that the plaintiff will know the precise nature of the case against her and provide her with sufficient details so she can meet it.
In relation to [27] of the defence the defendant should say which of the plaintiff's questions Mr Marrapodi answered. In relation to [28] of the defence the defendant should say which of the plaintiff's questions Mr Marrapodi provided an answer to.
Paragraph 35
Paragraph 35 of the defence is:
Throughout the period when she spoke to Mr Marrapodi after his meeting with the defendant on the afternoon of 22 August 2017, until Mr Marrapodi had reached the bottom of the escalator, the plaintiff:
35.1.was shouting at Mr Marrapodi;
35.2.followed Mr Marrapodi;
35.3.variously walked at a brisk pace and stopped walking;
35.4.was not moving or walking in a fluid or consistent manner;
35.5.was speaking an irregular way including by:
35.5.1shouting;
35.5.2using offensive language;
35.5.3not waiting for the defendant to answer the question identified at [32] before the plaintiff answered that question herself by saying the words the effect of which are pleaded at [33] of this defence.
The plaintiff requested that the defendant provide particulars of the words or the substance of the words shouted by the plaintiff as alleged in [35.5.1]. The defendant says that the fact that is relied upon by the defendant is that the plaintiff shouted. The defendant has elsewhere pleaded that the plaintiff used offensive language. The defendant does not rely upon the words, or the substance of the words, shouted by the plaintiff.
In my opinion the plea in [35.1] is sufficiently specific and precise. It is sufficient to inform the plaintiff of the nature of the case she has to meet and to enable her to collect evidence to meet it. The defendant is not required to provide the particulars requested of [35.1].
The plaintiff requested that the defendant provide particulars of the words spoken by the plaintiff said to constitute offensive language as pleaded in [35.5.2]. The defendant answered that request:
Answer 6.2: the words said by the plaintiff said to constitute offensive language include words to the effect:
(a)I don't fucking deserve this;
(b)this is fucking wrong; and
(c)you fucking can't do this to me.
At the hearing of this application the counsel for the defendant, Ms Taggart, stated that the defendant would amend [35.5] of the defence by deleting the word 'including' and would give a further answer to request 6.2 of the request for further and better particulars by giving an answer with the word 'include' deleted. In my opinion, when the words 'including' and 'include' are deleted from [35.5] of the defence and in answer 6.2 of the answers to request for further and better particulars respectively, the pleading and answer to the request for further and better particulars are sufficiently specific and precise.
Paragraph 36
Paragraph 36 is:
36.During the period of time described at [35] of this defence, the defendant:
36.1was fearful because he considered the plaintiff to be behaving in an agitated and unpredictable way, including because of matters described at [35] of this defence;
36.2.removed himself from the plaintiff's immediate vicinity to avoid the risk of the plaintiff making physical contact with him in her agitated state;
36.3.felt threatened because of the reasons described at [36.1] and [36.2] of this defence.
The plaintiff requested that in relation to [36.1] the defendant provide particulars of each fact, act, matter, circumstance or thing (other than the matters described at [35] of the defence) which caused the defendant to consider the plaintiff to be behaving in an agitated and unpredictable way.
At the hearing of this application, counsel for the defendant, Ms Taggart, stated that the defendant will amend [36.1] of the defence to delete the word 'including'. In my opinion the pleading so amended will be sufficiently specific and precise. It is sufficient to inform the plaintiff of the nature of the case she has to meet and to enable her to collect evidence to meet it.
In relation to [36.2] of the defence the plaintiff requested the defendant to provide particulars of every fact, matter, act, circumstance, event or thing upon which the defendant relies in support of the existence of a risk of the plaintiff making physical contact with him. In my opinion [36.2] is sufficiently specific and precise. It is sufficient to inform the plaintiff of the nature of the case she has to meet and to enable her to collect evidence to meet it.
Conclusion
The defendant should provide answers to the following requests of the plaintiff filed 26 February 2018 for further and better particulars of the defence: request 1 ([26.1]), request 2 ([26.2]), request 3 ([27]), request 4 ([28]) and request 6.2 ([35.5.2]). The defendant should amend [35.5] and [36.1] of his defence by deleting the word 'including'.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RK
ASSOCIATE TO THE HONOURABLE JUSTICE LE MIERE15 AUGUST 2018
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