Hazeldean v Austal Ships Pty Ltd - [2004] WASC 67

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: HAZELDEAN -v- AUSTAL SHIPS PTY LTD [2004] WASC 67

CORAM: MASTER NEWNES

HEARD: 30 MARCH 2004

DELIVERED : 13 APRIL 2004

FILE NO/S: CIV 1177 of 2003

BETWEEN: BRADLEY WILLIAM HAZELDEAN
Plaintiff
AND
AUSTAL SHIPS PTY LTD (ACN 079 160 679)
Defendant

Catchwords:

Defamation - Application to strike out Polly Peck defence - Turns on own facts

Legislation:

Rules of the Supreme Court 1971 (WA), O 20 r 19

Result:

Defence struck out in part

Category: B

Representation:

Counsel:

Plaintiff: Mr M J McPhee
Defendant: Mr D J Bishop

Solicitors:

Plaintiff: Michell Sillar McPhee
Defendant: Clayton Utz

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

Clark v Richards & Anor [2002] WASC 49
Gardiner v Ray [1999] WASC 140
Gumina v Williams (No 2) (1990) 3 WAR 351
Hazeldean v Austal Ships Pty Ltd [2004] WASC 44
Kerr v Force (1826) 3 Cranch CC 8
Polly Peck Holdings (Holdings) Plc v Trelford [1986] 2 All ER 84
Searle v West Australian Newspaper Holdings Ltd [2004] WASC 11

Case(s) also cited:

Casey v Australian Broadcasting Commission [1981] 1 NSWLR 305
Sutherland v Stopes [1925] AC 47
Tucker v Echo Publications Pty Ltd [2003] NSWSC 554

MASTER NEWNES: This is an application by the plaintiff to strike out parts of the defence and of the further and better particulars of the defence.
The action is a claim for damages for defamation. It was commenced by a writ filed on 21 February 2003. A statement of claim was filed on 28 April 2003. The defence was filed on 13 May 2003 and the particulars which are attacked on this application were filed on 15 July 2003. After service of the pleadings and particulars, an early mediation was arranged and that took place in about mid‑October 2003. The action did not settle at the mediation and the plaintiff's solicitors wrote to the defendant's solicitors on 28 October 2003 raising various objections to the defence. After consultation failed to resolve those objections, this application was filed on 10 December 2003. It was made in conjunction with an application for leave to administer interrogatories, which is the subject of my judgment in Hazeldean v Austal Ships Pty Ltd [2004] WASC 44.
The current application is therefore well out of time under O 20 r 19 of the Rules of the Supreme Court1971 (WA), which requires that any strike‑out application be brought within 21 days of service of the relevant pleading.
Counsel for the plaintiff said that, although this application was late, the action had been pursued diligently. Counsel submitted that an extension of time within which to make the application should be granted because the defects in the defence and in the particulars of defence posed real and substantial difficulties for the future conduct of the action.
It is clear that the object of O 20 r 19 is to ensure that any objections to pleadings are dealt with promptly so that the action can then proceed unaffected by pleading disputes. It is also clear that strike‑out applications should be reserved for those cases where the pleading concerned gives rise to real and substantial difficulties. Such applications are productive of substantial delay and expense to the parties and should not be made except where the problems associated with the pleading in question warrant such delay and expense: Gardiner v Ray [1999] WASC 140; Searle v West Australian Newspaper Holdings Ltd [2004] WASC 11.
The question of whether an extension of time should be granted to bring this application cannot be divorced from the merits of it. If, as the plaintiff contends, substantial problems arise from the present form of the defence and particulars, it may well be that it is better to deal with those problems even at this late stage rather than leave them unresolved, with the prospect that they will lead to additional cost and difficulties in the future, including at trial.
In order to consider the merits, it is convenient to set out the relevant parts of the pleadings. It is sufficient, for present purposes, to set out the words complained of in the statement of claim and the imputations which the plaintiff contends were conveyed by those words. They are as follows:
"6.On or about 6 June 2001 the Defendant, through an employee, acting in the course of his employment for the Defendant falsely and maliciously, spoke and published the following words defamatory of the Plaintiff in the way of his trade to a responsible officer at the said firm of Jervoise Bay Recruitment in answer to a reference check of and concerning the Plaintiff, namely it was said by the Defendant's employee of and concerning the Plaintiff:
'Brad ...
'requires improvement in his safe work practices';
'requires improvement in his team work and communication';
'requires improvement in his overall performance';
'is capable of doing good work, however he needs to work on his safe work practices; team work and communication';
And further, in answer to a further question by the responsible employee of Jervoise Bay Recruitment of the said employee of the Defendant; 'would you re‑hire him', (referring to the Plaintiff), the Defendant, through its said employee speaking of and concerning the Plaintiff said 'No'.
7.In their natural and ordinary meaning the said words were meant and were understood to mean of and concerning the Plaintiff in the carrying out of his trade while employed by the Defendant as a fabricator/welder that:
(a)his safe work practices were not of tradesman standard; and were unsafe;
(b)his teamwork and communication in the carrying out of his job was not of a tradesman standard;
(c)his overall performance was not of tradesman standard;
(d)although the Plaintiff was "capable of doing good work" he did not always do good work or work that was of tradesman standard.
(e)He had not worked at a standard expected for a tradesman welder/fabricator employed in the ship building industry in Western Australia and was not suitable for employment by a leading firm in that industry.
…
12.Further, on 7th June 2001 the Defendant falsely and maliciously wrote and published or caused to be written and published of the Plaintiff in the way of his said trade and to his conduct therein, in a hand written document entitled 'Austal Ships Reference Check on Previous Employees' and signed for or on behalf of the Defendant by persons named Estimoff and Delpup, and sent by the Defendant by facsimile to one Megan Smith of 'Allmet Constructions' the following defamatory words and symbols (a 'tick' in a box provided under the heading 'improvement required'), that improvement was required in the Plaintiff's;
(a)safe work practices;
(b)team work and communication; and
(c)overall performance.
And further, falsely and maliciously, wrote in the same document of and concerning the Plaintiff in the way of his trade and calling the following words: 'Lacks the mentality to be in this industry. A shame as he is capable of doing good work'.
13.In their natural and ordinary meaning the said words meant and were understood to mean of and concerning the Plaintiff in the carrying out of his trade while employed by the Defendant as a fabricator/welder that:
(a)lacked the mental application to work successfully as a tradesman in the industry.
(b)his safe work practices were not of tradesman standard; and were unsafe;
(c)his teamwork and communication in the carrying out of his job was not of a tradesman standard;
(d)his overall performance was not of tradesman standard;
(e)although the Plaintiff was 'capable of doing good work' he did not always do good work or work that was of tradesman standard.
(f)He was not a suitable person for employment in the ship building industry in Western Australia because he did not have the 'mentality' to be in the industry."
The relevant parts of the defence are as follows:
"6.In further answer to the allegations in paragraph 6 of the Statement of Claim, if the words set out in paragraph 6 ('the First Words') were spoken or published (which is not admitted) then the First Words:
(a)were not defamatory of the Plaintiff;
(b)are or were true in substance and in fact;
…
7.The Defendant denies each and every allegation in paragraph 7 of the Statement.
8.In further answer to paragraph 7 of the Statement of Claim the Defendant says:
…
(c)the only meanings or imputations arising from the First Words arise from their natural and ordinary meaning and such meanings or imputations are:
(i)not defamatory of the Plaintiff;
(ii)in the opinion of the Defendant true or substantially true in substance and in fact.
…
11.In further answer to the allegations in paragraph 12 of the Statement of Claim, the Defendant says that the words and symbols written or published in the Document (the 'Second Words'):
(a)were not defamatory of the Plaintiff;
(b)are or were true in substance and in fact;
…
13.In further answer to paragraph 13 of the Statement of Claim the Defendant says:
…
(c)the only meanings or imputations arising from the Second Words arise from their natural and ordinary meaning and such meanings or imputations are:
(i)not defamatory of the Plaintiff;
(ii)in the opinion of the Defendant true or substantially true in substance and in fact."
The plaintiff sought to strike out pars 8(c)(ii) and 13(c)(ii) of the defence and particulars (ii), (iii) and (iv) of the further and better particulars of defence dated 15 July 2003, which relate to those pleas. In fact, as emerged in the course or argument, what are entitled "supplementary" particulars of defence, filed on 26 February 2004, replaced the particulars of 15 July 2003. The relevant provisions of the supplementary particulars are pars 1, 2, 4 and 5 and the plaintiff's attack was redirected to those.
It also emerged in the course of argument that the defendant intended by each of pars 6(b), 8(c)(ii), 11(b) and 13(c)(ii) of the defence to plead a "Polly Peck" defence: Polly Peck Holdings (Holdings) Plc v Trelford [1986] 2 All ER 84. That is, to plead that the words bore meanings other than those pleaded by the plaintiff and to justify the words in the meanings which the defendant contends they bear. The pleas in pars 6(b) and 8(c)(ii) are in relation to the words pleaded in par 6 of the statement of claim and the pleas in pars 11(b) and 13(c)(ii) are in respect of the words pleaded in par 12 of the statement of claim.
The plaintiff's counsel said that that was not how he had understood the pleading. That, I think, is understandable. Such an intention on the part of the pleader does not emerge with any clarity from the terms of the defence. Indeed, pars 6(b) and 11(b) are, in substance, in the conventional form of a plea of justification to the imputations pleaded by the plaintiff. The terms of the pleas in pars 8(c)(ii) and 13(c)(ii) perhaps give some hint that the defendant intends to say that the words in their natural and ordinary meaning bear meanings different from those pleaded by the plaintiff, but it is certainly not sufficiently clear that that is what is intended.
When one turns to the supplementary further and better particulars of defence, the defendant's intention becomes a little clearer. In answer to a request for particulars of par 6(b) the defendant responded as follows:
"1.Paragraph 6(b) of the Defendant's Defence pleads, in the alternative to not admitting the publication of the First Words, a defence of justification to paragraph 6 of the Plaintiff's Statement of Claim in that the Defendant says that the only imputations capable of arising from the First Words are the literal (as opposed to any inferential or implied) meaning of the First Words, and that such literal meanings, if defamatory statements of fact (which is otherwise denied) are true in substance and in fact, namely that as at the time when the Plaintiff left the Defendant's employ:
(a)the Plaintiff required improvement in his safe work practices - which, if defamatory, will be justified by the matters described at sub‑paragraphs 3(a) to 3(l) inclusive below;
(b)the Plaintiff required improvement in his teamwork and communications - which, if defamatory, will be justified by the matters described at sub‑paragraphs 3(e), (h), (i), (j), (k) and (l) below;
(c)the Plaintiff required improvement in his overall performance - which, if defamatory, will be justified by the matters described at sub‑paragraphs 3(a) to 3(l) (inclusive) below;
(d)the Plaintiff is capable of doing good work, however, needs to work on his safe work practices, teamwork and communications - which, if defamatory, will be justified by the matters described in sub‑paragraphs 3(a) to 3(l) (inclusive) below;
(e)the Defendant would not re‑hire the Plaintiff - which, if defamatory, will be justified by:
(i)the matters described at sub‑paragraphs 3(a) to 3(l) (inclusive) below; and
(ii)by the fact that the Defendant would not, as at the time of the alleged publication, have re‑hired the Plaintiff."
Similarly, the defendant's response to a request for particulars of par 8(c)(ii) of the defence was in the following terms:
"2.Further, the Defendant says, at, and by, the plea at paragraph 8(c)(ii) of the Defence that in the event that the First Words (publication of which is denied) and which are set out in paragraph 6 of the Statement of Claim, are capable, at law, of being interpreted as either statements of defamatory fact or statements of defamatory opinion, then, to the extent that the statements are statements of defamatory opinion (which is otherwise denied) then, but not otherwise, they bear the following meanings, which are true in substance and in fact, namely that at the time when the Plaintiff left the Defendant's employ:-
(a)it was the Defendant's opinion that the Plaintiff required improvement in his safe work practices - which, if defamatory, will be justified by the same matters as are set out in respect to the imputation described at paragraph 1(a) herein and by the fact that the Defendant had formed and held that opinion;
(b)it was the Defendant's opinion that the Plaintiff required improvement in his teamwork and communications - which, if defamatory, will be justified by the same matters as are set out in respect to the imputation described at paragraph 1(b) herein and by the fact that the Defendant had formed and held that opinion;
(c)it was the Defendant's opinion that the Plaintiff required improvement in his overall performance - which, if defamatory, will be justified by the same matters as are set out in respect to the imputation described at paragraph 1(c) herein and by the fact that the Defendant had formed and held that opinion;
(d)it was the Defendant's opinion that the Plaintiff is capable of doing good work, however, he needs to work on his safe work practices, teamwork and communication - which, if defamatory, will be justified by the same matters as are set out in relation to the imputation described at paragraph 1(d) herein and by the fact that the Defendant had formed and held that opinion;
(e)it was the Defendant's opinion that the Defendant would not re‑hire the Plaintiff - which, if defamatory, will be justified by the same matters as are set out in respect to the imputation described at paragraph 1(e) herein and by the fact that the Defendant had formed and held that opinion."
In pars 4 and 5 of the particulars there are particulars in similar terms in respect of pars 11(b) and 13(c)(ii) of the defence, relating to the second publication, although, no doubt due to the differences in the terms of the words complained of, the meanings set out, while similar in effect, are not identical to those contained in the particulars of pars 6(b) and 8(c)(ii).
Although the prefatory words in each of particulars 1, 2, 4 and 5 contain confusing surplusage, it is, I think, sufficiently clear for present purposes that by the particulars it is intended to allege that the words complained of conveyed meanings different to those contended for by the plaintiff.
Once it is understood that pars 6(b), 8(c)(ii), 11(b) and 13(c) are each intended to plead a Polly Peck defence, the deficiencies in them become manifest. The pleading rules relevant to such a defence were summarised by McLure J in Clark v Richards & Anor [2002] WASC 49 at [15] ‑ [16].
It is clear that, where a defendant seeks to justify in a meaning other than a meaning pleaded by the plaintiff, the defendant must plead the meaning it will seek to justify: Gumina v Williams (No 2) (1990) 3 WAR 351, per Malcolm CJ at 354 ‑ 5, Seaman J at 366 ‑ 7.
In the present case, the defendant does not do so and, indeed, as I have said, it is not at all clear from the defence that the defendant intends to justify in a different meaning. It is not to the point that the meanings contended for by the defendant may be extracted from the further and better particulars of defence. Whether those meanings are regarded as material facts, as Malcolm CJ (at 354 ‑ 5) concluded in Gumina v Williams (No 2), or whether it is simply regarded as a rule of practice to avoid surprise and to enable the capacity of the words to convey the meanings to be tested before or at the outset of the trial, as Seaman J (at 366 ‑ 7) considered, the meanings relied upon by the defendant are required to be pleaded in the defence. The need to do so is highlighted by the present case where the defence is, to say the least, confusing.
Accordingly, I would strike out each of pars 6(b), 8(c)(ii), 11(b) and 13(c)(ii).
I should also say that, in my opinion, the pleas in pars 8(c)(ii) and 13(c)(ii), that the imputations are "in the opinion of the defendant true or substantially true in substance and in fact", disclose no reasonable cause of action. The issue on a plea of justification is whether the imputations concerned are true in substance and in fact, not whether the defendant believes they are true. The opinion of the defendant as to their truth is irrelevant: "Gatley on Libel and Slander", 9th ed, par 11.4.
The plaintiff also sought to strike out parts of the further and better particulars of defence. As I consider that the pleas to which the particulars relate should be struck out, the particulars must fall with them. Accordingly, it may be that, strictly speaking, issues as to the form of the particulars are to be determined if and when the defence is amended to plead the meanings currently contained in the particulars. The matters were, however, canvassed in argument and it is appropriate that I say something about them.
First, counsel for the plaintiff submitted that, in each case, the particulars of justification in par 3 of the further and better particulars were irrelevant and incapable of supporting the imputations in par 1. The particulars in par 3 are lengthy and I will not set them out. It is sufficient to say that, in relation to each imputation it seeks to justify, the defendant has particularised specific incidents involving the plaintiff that are alleged to have occurred in 1996, 1997, 1998 and 2001 respectively. The plaintiff's counsel submitted that matters going back to 1996 and 1997, some four years or so before the termination of the plaintiff's employment, were irrelevant.
I do not accept that contention. In each case, the matters relied upon are a series of incidents from 1996 through to 2001. On one view, they allege what might be said to be a persistent course of conduct over the period the plaintiff was employed by the defendant and are relevant on that basis. I do not consider that they are incapable of supporting the meanings alleged.

Secondly, the plaintiff submitted that the words complained of were incapable of conveying the meanings alleged in pars 2 and 5 of the further and better particulars, namely, the meaning that "it was the Defendant's opinion" that the plaintiff required improvement in his safe work practices, and so forth. The plaintiff's counsel argued that the words pleaded in pars 6 and 12 respectively of the statement of claim made assertions of fact, not opinion. They are not capable of conveying a meaning that the defendant held such an opinion, but only a meaning that the matters stated were the fact.
The defendant argued that, in the circumstances pleaded in pars 6 and 12 of the statement of claim, that is, in the context of the provision of a job reference check, the words alleged were plainly capable of conveying the meaning that the statements were statements of the defendant's opinion, not of fact.
I would not accept that submission. The words complained of convey assertions of fact, not expressions of opinion. Moreover, even in cases where a statement is said to be an expression of belief, it is not enough for the defendant to prove that he held the belief. "If I say of a man that I believe he committed murder, I cannot justify it by saying and proving that I did believe it. I can only justify it by proving the fact of the murder.": Kerr v Force (1826) 3 Cranch CC 8 at 24; and generally see "Gatley on Libel and Slander" op cit.
I am satisfied that, in the present case, substantial difficulties would arise in the course of these proceedings and at trial if the defence remains in its current form. The pleas of justification are not properly pleaded and are, at best, confusing. I would therefore grant an extension of time in which to bring this application and would strike out pars 6(b), 8(c)(ii), 11(b) and 13(c)(ii) and, consequentially, pars 1, 2, 3, 4 and 5 of the supplementary further and better particulars of 26 February 2004. The defendant should have liberty to replead.
I will hear the parties on the time within which any amended defence is to be filed and on costs.