Hewitt v ATP Tour Inc - [2004] SASC 286

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
HEWITT v ATP TOUR INC
Judgment of The Honourable Justice Mullighan
17 September 2004
PROCEDURE - SUPREME COURT PROCEDURE - SOUTH AUSTRALIA - PRACTICE UNDER RULES OF COURT - PLEADINGS
Miscellaneous procedural matters - pleadings - strike out application - application for particulars through further amended Statement of Claim - action in breach of contract, defamation, and injurious falsehood - plaintiff a professional tennis player contracted to the defendant in relation to ATP Tour - promotional obligations pursuant to contract - allegation of breach of contract occurring in United States of America - alleged causes of action arising out of disciplinary proceedings pursuant to contract - alleged statements made by defendant and republication of tortious statements - test to be applied on strike out application as to pleaded imputations - whether pleaded imputations are appropriate - whether need to identify lex loci delicti as to publications and republications - place of publication of internet publications - extent to which lex loci delicti must be pleaded - general damages not available for action for injurious falsehood - extent to which actual losses to be pleaded - damages for general loss of business - particular paragraphs of Statement of Claim struck out with liberty to replead - some further particularity required - otherwise applications dismissed.
Supreme Court Rules 1987 R 46A.09, referred to.
Chapman & Chapman v Australian Broadcasting Commission (2000) 77 SASR 181; Hough v London Express Newspaper Ltd [1940] 2 KB 507; Capital & Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741; Farquhar v Bottom [1980] 2 NSWLR 380; Singleton v Ffrench (1986) 5 NSWLR 425; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135; John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77; General Steel Industries Inc v Commissioner for Railways (N.S.W.) & Ors (1964) 112 CLR 125; Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293; John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503; A & Ipec Australia Ltd v Crew [1973] VR 39; Sims v Wran [1984] 1 NSWLR 317; Selecta Homes & Building Co Pty Ltd v Advertiser-News Weekend Publishing Co Pty Ltd (2001) 79 SASR 451; Dow Jones & Company Inc v Gutnick (2002) 194 ALR 433; Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404; Fielding v Variety Incorporated [1967] 2 QB 841; Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388; Ratcliffe v Evans [1892] 2 QB 524; Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1; Mechniff v Simpson [1968] VR 62; Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281; Lazarus v Deutschke Lufthansa Co [1985] 1 NSWLR 188; Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225, applied.
Moose v Odhams Press Ltd [1971] 1 WLR 1239; [1941] 2 All ER 1156; Nationwide News Pty Ltd v Chapman & Chapman [2001] SASC 30; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663; Jones v Skelton [1963] 1 WLR 1362; Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84; Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1; Brambles Holdings Limited v Carey (1976) 15 SASR 270, considered.

HEWITT v ATP TOUR INC
[2004] SASC 286
Civil

MULLIGHAN J: The plaintiff is a professional tennis player and is a resident of South Australia. At relevant times he was the world number one ranked tennis player on the rankings of professional tennis players published by the defendant.
The defendant is a non-stock, non-profit, membership corporation, incorporated pursuant to the laws of Delaware, one of the states of the United States of America and is an Australian registered body corporate pursuant to the Corporations Act 2001 (Cth). It manages and promotes an annual men’s professional tennis tour known as the “ATP Tour”.
On 17 June 2003, the plaintiff brought an action in this Court against the defendant seeking damages, including exemplary and aggravated damages, various orders and a declaration, and interest, including compound interest, for breach of an agreement, defamation and injurious falsehood. He has filed an extensive Statement of Claim. The defendant filed a defence and upon the request of the defendant for an amended Statement of Claim, an amended Statement of Claim was filed by the plaintiff. The defendant asserts that not all of the further particulars which it sought are included in that pleading.
The defendant has brought two applications. The first of them seeks orders that various paragraphs of the Statement of Claim be struck out. The second seeks an order that the plaintiff file and serve a further amended Statement of Claim pursuant to R 46A.09 of the Supreme Court Rules 1987 which is, in effect, the process whereby further particulars are supplied.
In the Statement of Claim the plaintiff alleges that a contract was formed between the plaintiff and the defendant which is partly express and in writing and partly implied. The written provisions of the contract are found in the defendant’s ATP Rules for the year 2002 and a letter from the plaintiff through his agent dated 11 December 2001, in which he offered, in consideration of being eligible to compete on the ATP Tour for 2002, to be bound by the Rules subject to a provision that the defendant was to engage in good faith negotiations with respect to obligations and implementation of the Program and the levying of fines for perceived non-compliance with the Program. The plaintiff also agreed to play in certain competitions, to grant to the defendant certain rights in his intellectual property, to cooperate with the news media and participate in reasonable promotional activities of the defendant and tournaments and events in which he was entered subject to his reasonable availability. He also agreed to other matters which are of no consequence for present purposes.
The plaintiff also alleged that it was an implied term of the contract that the defendant was obliged to act in good faith towards him and to ensure that he was afforded natural justice before a fine or penalty was imposed on him by the defendant and in any appeal proceedings.
The ATP Rules have continual provisions relating to marketing and promotion programs for the ATP Tour called the “STARS Program” which required all players competing in the main draw of any ATP Tournament, if asked, to participate in ATP sponsored activities. Each player is obliged to provide up to two hours each week as arranged by the ATP staff for a maximum of four separate activities. Any player who fails to provide the minimum service is subject to the penalties outlined in the Player Code of Conduct. The Rules provide, in the section entitled “ATP Stars Program Responsibilities”:
“… failure to participate in a scheduled activity due to non-appearance or tardiness shall be deemed a missed activity. Violation of this section shall subject a player to a penalty of forfeiting half the amount of prize money won at that tournament or a fine as indicated below, whichever is greater:
Fine Schedule (based on most recent position in the ATP Singles Entry System):
1-10  $20,000
11-25  $10,000
26-50  $5,000
51-100  $3,000
100+  $1,000”
The Rules also provide to the effect that for determination of a breach of the Rules, including the levying of a fine, the tournament supervisor must make a reasonable investigation to determine the facts relating to the alleged breach and if the tournament supervisor determines that a breach has occurred, he or she must give the player written notice specifying the amount of the fine. The Rules provide for a right of appeal against the fine.
The plaintiff alleges that these rules were not enforceable or intended by the defendant to be enforceable according to their tenor. The defendant asserted and publicized that time commitments to the STARS Program were classified such that each commitment will count for a minimum of 30 minutes and activities lasting “more than 30 minutes, one hour and one and a half hours will count for two, three and four commitments respectively”. Also, the defendant publicized that the ATP Rules would be construed and applied by the defendant on the footing that interviews with a “host broadcaster” were “observed to be outside of usual STARS commitments”. The plaintiff also alleges that the usual practice of the defendant, at all material times was, to his knowledge and belief, to negotiate with players, directly or through their representatives, the timing, venues, duration and other attributes of the media and promotional activities in which the player would be asked to participate during a tournament in fulfilment of the player’s obligations under the STARS programme.
It is unnecessary, for present purposes, to set out other allegations as to the alleged terms and conditions of the contract.
The plaintiff competed in the Cincinnati Masters Tournament which was a tennis tournament forming part of the ATP Tour held between 5 and 11 August 2002. He was the runner-up in the Tournament. At this time Mr Rapp was Vice President Communications and Vice President Public Relations and Ms Bradshaw was Vice President Officiating of the defendant. The plaintiff alleges that at about 11.00 pm on 6 August 2002, Mr Rapp and Ms Bradshaw signed a document entitled “Finding of Violation” and it was delivered to the plaintiff. It was asserted in this document that the defendant was imposing a fine on the plaintiff for breach of his commitments under the STARS Program in that:
“Included in Lleyton Hewitt’s STARS commitments for the week of Cincinnati was an interview with ESPN (the tournament’s host broadcaster). Lleyton was given the opportunity to do the interview on Sunday or Monday before his first singles match. Lleyton chose not to do the interview.”
Mr Rapp certified that he had made a reasonable investigation into the circumstances of the “plaintiff’s notification of and/or agreement” to appear at his required ATP STARS Program activity or activities. A fine of $US105,650, being one half of the prize money payable to the plaintiff for finishing as runner‑up in the Tournament was imposed by the defendant on the plaintiff for his alleged failure to comply with his STARS Program obligations for the Tournament.
The plaintiff alleges that the fine was unauthorised by the Rules and was imposed in breach of the Rules and seeks damages and other relief for breach of contract. It is unnecessary for present purposes to set out the particulars of that cause of action. It is sufficient to say that he alleges that he was not in breach of his commitments under the STARS Program and also that he conducted interviews with media as part of the STARS Program and interviews which were not included by the defendant in the STARS Program. The effect of his pleading is that he did not undertake an interview with a section of the media required by the defendant before he played his first match of the Tournament because the defendant and that section of the media were unable to make the necessary arrangements. The fine was imposed without investigation involving persons who were aware of the events of that day.
An appeal under the rules was lodged by the appellant on 16 August 2002 and it was heard on 6 and 7 November 2002. The plaintiff complains about aspects of the hearing of the appeal. The appeal committee held that the plaintiff had breached his commitments under the STARS Program and dismissed the appeal except that the fine was reduced to $US20,000.
The plaintiff also claims breach of contract with respect to the appeal, the appeal process and the decision.
With that background I now turn to the plaintiff’s claim in defamation.
On the afternoon of 6 August 2002, the occasion of the plaintiff’s first match of the Tournament, the defendant published a statement (“the First Statement) in written form to the media as follows:
“HEWITT FACES FINE FOR MISSED PRE-TOURNAMENT MEDIA INTERVIEW
CINCINNATI, Ohio – Lleyton Hewitt was fined Tuesday by the ATP for failing to complete a pre-tournament media commitment with the host broadcaster.
As a Top 10 player, Hewitt will be fined $20,000 or half his total prize money earned during the week in Cincinnati, whichever is the highest. The fine is appealable to a committee of former ATP players.”
which the plaintiff alleges is defamatory for him.
In the Statement of Claim, the plaintiff alleges that the First Statement in its natural and ordinary meaning meant, and was understood to mean, that:
“25.1the plaintiff was unreliable in that he had failed to fulfil a pre-tournament media commitment without any or any reasonable excuse;
25.2the plaintiff was indifferent to his professional and contractual obligation to the defendant and to the host broadcaster;
25.3the plaintiff had made and then had knowingly failed to fulfil ‘a pre-tournament media commitment with the host broadcaster’ and hence his professional and contractual obligations to the defendant and to the host broadcaster;
25.4the plaintiff had acted in a way that showed disrespect and disregard for the host broadcaster for the Cincinnati Tournament by failing to fulfil a media commitment without reasonable excuse.”
The First Statement was first published in the State of Ohio in the United States of America and was re-published in whole or in part in Australia, including in South Australia. The plaintiff alleges that each of the re‑publications repeated the sense and substance of the statement and thereby in their natural and ordinary meaning gave rise to the imputations which are set out in paragraph 25 of the Statement of Claim and which I have mentioned.
The plaintiff pleads that he is a prominent person whose sporting and personal activities are widely reported by the media throughout the world and that for reasons which are pleaded, it was the natural and probable consequence of the publication of the statement by the defendant, or it can be inferred that it was intended or contemplated by the defendant, that the statement would be re‑published in whole or in part in South Australia and elsewhere in Australia and throughout the world. He relies on each of the re-publications as giving rise to a separate cause of action in defamation against the defendant, or in the alternative in support of his claim for damages arising out of the publication of the statement.
The defendant challenges the imputations in paragraph 25 of the Statement of Claim on two grounds:
1They are not arguably capable of arising from the First Statement.
2Alternatively, they are not distinctly different from each other thereby leading to ambiguity and confusion,
and seeks an order that paragraph 25 be struck out.
On or about 16 April 2003, the defendant published a second statement as follows (“the Second Statement”):
“The ATP confirms that it received notice from attorneys for Lleyton Hewitt of his intention to initiate litigation against ATP in Australia in connection with Hewitt’s ATP STARS Program fine.
ATP found Hewitt in violation of its STARS Program at the 2002 Tennis Masters Series – Cincinnati tournament for his refusal to participate in an interview with ESPN, the North American broadcaster of the event. As a result of the violation Hewitt was automatically fined one half of the prize money he earned at the event, or $105,650, subject to his right to appeal the finding of a violation and the amount of the fine.
Hewitt appealed and, after a two-day evidentiary hearing, a three-member appeals committee (chaired by a United States Federal appellate court judge) confirmed the violation by Hewitt but reduced the amount of his fine to $20,000.
The findings of the appeals panel and subsequent fine amount are consistent with similar violations of the STARS Program. It would be unfortunate if this matter were pursued in the courts, needlessly prolonging a situation that should otherwise be concluded.”
The plaintiff alleges that the second statement in its natural and ordinary meaning meant, and was understood to mean:
“33.1the plaintiff repeats paragraphs 25.1 and 25.4;
33.2the plaintiff had without any or any reasonable excuse refused to participate in an interview with ESPN;
33.3the plaintiff was a troublemaker in that he had threatened legal action against the ATP in Australia when there was no justification for him taking such action.”
It is alleged that the Second Statement was first published in a State of the United States of America, the identity of which the plaintiff is not currently able to specify but full particulars of which will be provided after discovery by the defendant. Further, it is alleged that the form of publication was a media release, inter alia, to representatives of the major print and electronic sporting news services in the world on or about 16 April 2003. It was republished in whole or in part in South Australian and Australian special sections of the print media and was further published by the defendant on or about 21 April 2003, in a publication entitled “ATP Players Weekly”. This publication is published in electronic form on the internet and was published using the internet to persons within Australia. The plaintiff asserts that he is unable to provide particulars of when in Australia the publication was made but will do so following discovery by the defendant. It is alleged by the plaintiff that each of the Second Statement and the Internet Publications of the Second Statement repeated the sense and substance of the First Statement and the Internet Publications of the Second Statement repeated the sense and substance of the First Statement and thereby in their natural and ordinary meaning give rise to the imputations pleaded.
The defendant’s application is to strike out paragraph 33 of the Statement of Claim. In effect, the defendant does not, in its present application, seek to strike out any cause of action on a final basis, but requires the plaintiff to plead its causes of action appropriately, which it asserts has not occurred.
The basis of the application with respect to paragraph 33.1 is the same as was advanced in relation to paragraph 25. The defendant submits that the imputation in paragraph 33.2 is not distinctly different from the imputations in paragraph 25.
The law
In Chapman & Chapman v Australian Broadcasting Commission (2000) 77 SASR 181 the Full Court considered an application to strike out parts of a Statement of Claim in a defamation action on the ground that the pleaded words were not capable of bearing the meanings alleged in the pleading. Lander J, with whom the other members of the Court agreed, accepted that the question is whether the words published are capable of bearing the meanings pleaded in the Statement of Claim and that although there is no rule in this State which requires a plaintiff to plead imputations where only the natural and ordinary meaning of the words are relied upon (Chakravati v Advertiser Newspapers Ltd (1998) 193 CLR 519 at 530), it is good pleading practice to plead imputations even when imputations arise solely from the natural and ordinary meaning of the words: 189. He went on to say at 189:
“It is rarely that the words clearly convey the specific charge or the particular sting. The purpose of pleading imputations is to narrow the issues between the parties. A defendant has to know the precise imputation alleged by the plaintiff in order to determine whether to apologise or to defend the matter and if to defend upon what ground. The practice in this State more recently has been to plead the false innuendo, that is, imputations arising from the natural and ordinary meaning of the words: Pritchard v Krantz (1984) 37 SASR 379.
More importantly, I think following the High Court decision in Chakravarti v Advertiser Newspapers Ltd a plaintiff does have an obligation to plead the imputations which the plaintiff says arises from any publication which the plaintiff says is defamatory of and concerning the plaintiff, whether the imputations arise out of the natural and ordinary meaning of the words or whether they arise by reason of extrinsic facts and circumstances known by the person to whom the publication was made: per Brennan CJ and McHugh J (at 552) and Gaudron and Gummow JJ (at 542-543). In the latter case, of course, the Statement of Claim must also particularise those extrinsic facts and circumstances: r 46.19.”
Later, Lander J examined the tests to be applied and I mention those which are pertinent to the present case, 189-190:
1Whether reasonable people might understand the words in a defamatory sense: Hough v London Express Newspaper Ltd [1940] 2 KB 507 at 515 and Capital & Counties Bank Ltd v Henty & Sons (1882) 7 App Cas 741 at 745.
2The words will be construed in their natural and ordinary meaning which is a meaning which reasonable men or the ordinary intelligence with ordinary man’s general knowledge and experience of worldly affairs would be likely to understand them: Farquhar v Bottom [1980] 2 NSWLR 380 at 386.
3The ordinary reasonable reader is not a lawyer but a layman who does not read the article cautiously or carefully but casually and who is prone to a certain amount of loose thinking: Moose v Odhams Press Ltd [1971] 1 WLR 1239; [1941] 2 All ER 1156.
4The words should not be given any strained, forced or unreasonable interpretation. The imputation should be pleaded unambiguously otherwise it will be liable to be struck out as embarrassing: Singleton v Ffrench (1986) 5 NSWLR 425; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135.
5If the words are capable of a defamatory meaning and they are also capable of having a harmless meaning it is a question of fact for the trier of fact to determine which meaning they do convey in a particular case.
6In due course, it will be necessary to determine whether the imputations which can arise are defamatory of, and concerning, the plaintiff which is a separate exercise: Capital & Counties Bank Ltd v Henty & Sons; Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663.
I apply these tests to the issues on this application.

In the course of discussing these tests, Lander J also made the following observation, at 190:
“In seeking to extract imputations from the words the pleader should avoid exaggeration. A pleader should use adverbs and objectives carefully. While that use of an adverb may give a certain flourish to the pleaded imputation the pleader must be careful to ensure that the use of such language does not make the imputation such that it could not arise from the natural and ordinary meaning of the words. Pleader’s flourishes must be avoided. An imputation should be capable of being supported by more than the pleader’s ingenuity: Grubb v Bristol United Press Ltd (at 326). The rhetorical imputation should not be pleaded: Morris v Newcastle Newspapers Pty Ltd (1985) 1 NSWLR 260.”
Also I mention the observations of McHugh J in John Fairfax Publications Pty Ltd v Rivkin (2003) 201 ALR 77 at 82 where he said:
“…. the natural and ordinary meaning of words contains ‘all such insinuations and innuendos as could reasonably be read into them by the ordinary man’. Lord Reid said: ‘The ordinary man does not live in an ivory tower and he is not inhibited by a knowledge of the rules of construction. So he can and does read between the lines in the light of his general knowledge and experience of worldly affairs.’
A reader may be acting reasonably even though he or she engages in ‘a certain amount of loose thinking’”. (citations omitted)
Although McHugh J was in dissent, the reasons of the majority do not cast doubt on these observations.
The defendant contends that the plaintiff has not observed these torts and observations.
There is one last test which must be considered. The plaintiff contends that the effect of the strike out application is to strike out the cause of action in defamation and also injurious falsehood, which I mention later, and is not for practical purposes merely an application to strike out imputations. Consequently, he contends that the test laid down by Barwick CJ in General Steel Industries Inc v Commissioner for Railways (N.S.W.) & Ors (1964) 112 CLR 125 at 129 where he expressed the various tests which have been applied and which may be effectively summarised as “so obviously untenable that it cannot possible succeed” or is “manifestly groundless”.
In Chapman & Chapman v Australian Broadcasting Commission, the Full Court proceeded on the basis that the test is whether the words published are capable of bearing the defamatory meaning as pleaded: 188. This test was again discussed by the Full Court in Nationwide News Pty Ltd v Chapman & Chapman [2001] SASC 30. Doyle CJ, with whom the other members of the Court agreed, referred to the decision of Hunt J in Monte v Mirror Newspapers Ltd [1979] 2 NSWLR 663 where he applied the General Steel test and said at paragraph 16:
“When the subject matter of an application to strike out a Statement of Claim is the meaning of written words, or, to be more precise, the meaning that those words are capable of bearing, the distinction between whether words are capable of bearing a certain meaning, or are shown clearly or manifestly to be incapable of doing so, is very much a matter of impression and of emphasis. The distinction identified by Hunt J is not an easy one, as he himself notes, but as his decision demonstrates it is one that can be drawn. In the present case Mr Harris QC, counsel for NWN, accepted that the more stringent test was the appropriate one, and I proceed on that basis without deciding the point, no detailed submissions having been put on other side about the matter.”
It will be seen that the Court was content to adopt the General Steel test in the circumstances of that case without deciding what is the appropriate test.
The defendant contends that the present application is not an application to strike out the cause of action but merely the alleged imputations.
In view of the conclusion which I have reached about the imputations which have been pleaded, it is not necessary to decide whether the test adopted by Lander J in Chapman & Chapman v Australian Broadcasting Commission or in General Steel should be applied. As will be seen, I do not think there is any basis to strike out paragraph 25 of the Statement of Claim.
The defendant contends that the First Statement does no more than state that the plaintiff had been fined by the defendant for failing to meet a pre-tournament media commitment with a host-broadcaster and the pleaded imputations are not capable of arising from this statement. The defendant contends that the pleaded imputations are “strained or forced or utterly unreasonable interpretations of the First Statement” or expressions used in the judgment of the Privy Council in Jones v Skelton [1963] 1 WLR 1362, delivered by Lord Morris at 1370. Reference was made to Mirror Newspapers Ltd v Harrison (1982) 149 CLR 293 where the Court had to consider what imputations were capable of being raised by a newspaper report that stated that, after extensive police investigation, a man had been arrested and was expected to be charged with offences of conspiracy and fraud. Mason J, with whom the other members of the Court agreed, said at 301:
“In this situation the reader will view the plaintiff with suspicion, concluding that he is a person suspected by the police of having committed the offence and that they have ground for laying a charge against him. But this does not warrant the conclusion that by reporting the fact of arrest and charge a newspaper is imputing that the person concerned is guilty. A distinction needs to be drawn between the reader’s understanding of what the newspaper is saying and judgments or conclusions which he may reach as a result of his own beliefs and prejudices. It is one thing to say that a statement is capable of bearing an imputation defamatory of the plaintiff because the ordinary reasonable reader would understand it in that sense, drawing on his own knowledge and experience of human affairs in order to reach that result. It is quite another thing to say that a statement is capable of bearing such an imputation merely because it excites in some readers a belief or prejudice from which they proceed to arrive at a conclusion unfavourable to the plaintiff. The defamatory quality of the published material is to be determined by the first, not by the second, proposition. Its importance for present purposes is that it focuses attention on what is conveyed by the published material in the mind of the ordinary reasonable reader.”
Also, the defendant contends that the imputation pleaded in paragraph 25.2 of the Statement of Claim to the extent that it makes reference to contractual obligations to the host broadcaster, is not capable of arising from the First Statement. I do not think this imputation refers to contractual obligations to the host broadcaster. The defendant contends that the several imputations in paragraph 25 are not distinctly different and each different and distinct meaning must be pleaded: Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135, Chakravarti per Gaudron and Gummow JJ at 543; Lewis v Daily Telegraph Ltd at 282.
I reject these contentions. The First Statement, whilst reciting that the plaintiff had been fined a considerable amount of money and that the reason for the fine was failure to complete a pre-tournament media commitment, did not suggest that the plaintiff had any exculpatory reason, excuse or explanation for the asserted failure to meet the commitment. I accept the contention of Mr Harris QC, who appeared with Mr Doyle and Mr Kentish for the plaintiff, that the statement conveys the message that the plaintiff was bound to undertake the media interview in a way that rendered him subject to sanction if he did not do so. It also conveys the message that the plaintiff did not undertake the interview which he was obliged to undertake and that his conduct was of such a character which made it appropriate to impose a significant fine.
Given the position of the plaintiff in the world of tennis, including his ranking and prominence, the pleaded imputations may arise from the statement. If he deliberately failed to discharge such an important media obligation, he could be regarded as unreliable, which I accept means that he cannot be depended on with confidence and assurance. Also, I accept that the imputation of indifference, that is that the plaintiff does not care about his contractual and professional obligations to the defendant and host broadcaster which may arise from the First Statement. I accept that the imputation in paragraph 25.3 is that the plaintiff is a person who makes a commitment to do something important and chooses not to fulfil the commitment. Also, I accept that the imputation pleaded in paragraph 25.4 may be open on the First Statement in that he is a person who, without proper cause or reasonable excuse, breaches agreements and is therefore disrespectful and acts with disregard to those with whom he enters into agreements.
In my view, all of these imputations are distinctly different. They are separate imputations that the plaintiff is unreliable, indifferent and disrespectful. It is not easy to find a single word to encapsulate the imputation in paragraph 25.3, perhaps fickle is appropriate, but I am satisfied that this imputation is different from unreliability pleaded in paragraph 25.1. I accept the contention of Mr Harris that each of the imputations attributes different states of mind to the plaintiff and, I would add, different characteristics. They are more than shades of the same meaning and evidence to establish any one of them may not be relevant to establish another.
In my view, the First Statement is capable of bearing the defamatory meaning as pleaded in paragraph 25.
The complaint about the imputation in paragraph 33.2 is that it is not distinctly different from the other imputations alleged in paragraph 25. I accept that contention. If the imputation pleaded in paragraph 33.2 is that the refusal was due to indifference, then it is substantially the same as the imputation in paragraph 25.2. If the imputation is that the refusal is due to wilful and deliberate conduct, then it is substantially the same as the imputation in paragraph 25.3. Paragraph 33.2 should be struck out and the plaintiff given leave to plead any other imputation which is distinct from those already pleaded.
I now turn to the imputation in paragraph 33.3. The defendant contends that this imputation is not capable of being conveyed by the Second Statement. The plaintiff contends that the final paragraph, when read in conjunction with the first paragraph of the Second Statement, conveys that the plaintiff had informed the defendant that he intended to commence legal action against it, and that if he did so he would be doing so without legal justification as he was “needlessly prolonging a situation that should otherwise be concluded”.
This part of the Second Statement seems like the defendant is responding in the media to notice by the plaintiff of intended legal action rather than a more appropriate and conventional manner of response, but that does not necessarily mean that this part of the response is defamatory. However, I think the imputation is justified. If the ordinary meaning of the first and last paragraphs read together does mean that any legal action by the plaintiff against the defendant was without basis, and I think it does, the assertion that he is needlessly prolonging a situation that should otherwise be concluded, is capable of indicating that he is a “troublemaker” in that sense. The Second Statement does not indicate when such legal action would be initiated but the last paragraph suggests the plaintiff had rejected some more sensible course, and so the proposed litigation was unnecessary and has the effect of prolonging the dispute. I accept the plaintiff’s contention that this would suggest to an ordinary reader that the plaintiff is a cause of difficulty or vexation and is therefore a “troublemaker”, which is defined in the Australian Oxford Dictionary as “a person who habitually causes trouble”. “Trouble” is defined as “difficulty or distress; vexation, application”.
Republications
The defendant contends that the plaintiff must identify where the republications occurred. As has been mentioned, the plaintiff alleges that the First Statement was republished in whole or in part in South Australia and elsewhere in Australia “in the publications listed in Schedule 1. That Schedule sets out the date and name of the publication and the title of the article appearing in the publication. It contains 11 publications in the print media and one publication on the internet and text of each publication. The Schedule also sets out three publications on 7 August 2002 on the evening news service of three television stations, the time of each publication and a transcript of each publication.
The plaintiff pleads that the Second Statement was republished in whole or in part in South Australia and Australia in the publications set out in Schedule 2. This Schedule sets out seven publications in the newspapers specifying the date and name of each publication, and the title of each article. There is no allegation of republication of the Second Statement in the television media.
The defendant contends that the places or “law areas” in which each republication is alleged to have taken place should be alleged by way of a further amended Statement of Claim. The expression “law area” is used by the High Court in John Pfeiffer Pty Limited v Rogerson (2000) 203 CLR 503.
In A & Ipec Australia Ltd v Crew [1973] VR 39 Menhennitt J held that a pleading that a newspaper is published in a specified area “and elsewhere” is embarrassing and prejudicial and particulars of other places where the alleged publication took place should be supplied and, in default of the supply of such particulars, the words “and elsewhere” should be struck out: 52. He also said, at 51:
“It is, I think, embarrassing to the defendants to have to plead without knowing what those other places are, for this reason: The law applicable in other places may differ and without knowing in what places publication is said to take place the defendants do not know what is the applicable law in the places upon which the plaintiff is relying and does not, therefore, know what defences are or are not available to them. It is no answer to say that the defendants themselves know, or should know, where the paper was published; what they want to know are the places where the paper was in fact published on which the plaintiff is relying, and without knowing that they are embarrassed in pleading for the reasons I have stated.”
I respectfully agree with those observations.
The mere identification of a newspaper does tend to indicate that it was published in the State where that newspaper was published. For example, “The Hobart Mercury” is sufficient particulars that the article was published in Tasmania, however, it may be expected that this newspaper was also published elsewhere in Australia. The same may be said of the other newspapers set out in the Schedule. The Schedule also contains a publication of an article by Australian Associated Press on 16 April 2003. There is no pleading as to where that article was published. The listing of the television publications in Schedule 1 does not indicate if the publication relied on in each instance occurred only in one State or Territory. The identity of the presenter or presenters in each publication and the time of publication suggests that they were made in South Australia, but one or more of them may also have been published elsewhere.
As long as the plaintiff alleges separate causes of action for each republication, he must give particulars of where each publication upon which he relies was published and an amended Statement of Claim must be filed and delivered for that purpose, or such particulars supplied in some other way that is mutually acceptable to the parties.
The next complaint is that the plaintiff has pleaded that he relies on each of the republications of the First Statements and the Second Statement and the Internet Publications, which I mention shortly, as giving rise to a separate course of action in defamation against the defendant or, in the alternative, he relies upon each of them in support of his claim for damages arising out of the publication of the First Statement and the Second Statement. The defendant contends that the plaintiff must elect whether he relies on each republication as going to damages or as constituting a separate cause of action. In Sims v Wran [1984] 1 NSWLR 317 at 320, Hunt J held that a plaintiff has a choice of either complaining separately of each republication or relying upon such republications, simply on the issues of damages. He went on to say at 320:
“……. if the plaintiff intends to complain separately of that republication, he must plead each such republication in haec verba as a separate paragraph in his Statement of Claim, to enable the defendant to plead to it whatever defence may be appropriate to that particular publication.
On the other hand, as I say, a plaintiff is entitled if he wishes to complain only of the original publication, but to seek to recover as a consequence of that original publication the damage which he suffered by reason of its repetition or republication where the defendant is responsible for that repetition or republication: Cutler v McPhail [1962] 2 QB 292 at 298, 299. But, if the plaintiff intends to do so, he is obliged to make his intention clear in his Statement of Claim.”
This passage was approved by the Full Court in Selecta Homes & Building Co Pty Ltd v Advertiser-Weekend Publishing Co Pty Ltd (2001) 79 SASR 451 per Lander J, with whom Doyle CJ agreed, at 463.
The plaintiff accepts that he must make his intention clear and that an individual republication may only be relied upon for one of these alternatives. The plaintiff contends that there is nothing in the cases to suggest that the plaintiff should be put to an election at the pleading stage of the proceedings and that as long as the defendant has been clearly put on notice as to the need to plead any substantive defences it might have available to it, there is no prejudice to the defendant in permitting the plaintiff to plead in the alternative.
I disagree. The plaintiff must plead in accordance with the observations in Simms v Wran and Selecta Homes. As Hunt J said in the first mentioned of those cases, the plaintiff is obliged to make his intention clear in his Statement of Claim.
In my view, the defendant is entitled to know if the plaintiff is pursuing a cause of action in respect of each time and place of publication at the pleading stage of the proceedings. It should not be obliged to plead the causes of action which are not to be pursued at trial. It is a simple matter for the plaintiff to make this decision now and he is obliged to do so.
The defendant contends that the republications are not capable of conveying the imputations which are alleged. The imputations alleged are as previously discussed in relation to the First Statement and the Second Statement.
It is submitted by the defendant that the alleged republications in Schedule 1 of the Statement of Claim do not purport to republish the First Statement at all, but rather they purport to quote the plaintiff extensively who made remarks which were disparaging of, and attacked, the defendant. I reject those contentions. Whilst these publications do not repeat the First Statement in its entirety, they contain the substance of the First Statement and are capable of conveying the imputations alleged. A similar submission was made with regard to the republication in Schedule 2. The defendant contends that some of them do not contain any portion of the Second Statement, but purport to quote the plaintiff’s agent and his father. I also reject this submission. Although the Second Statement is not repeated in its entirety, the substance of it is republished. The exception is the republications numbers 6 and 7 in Schedule 2. They do not republish any part of the Second Statement and they should be deleted from Schedule 2. The other publications in Schedule 2 do amount to republications and are capable of conveying the publications as alleged.
The Internet Publications of the Second Statement

The defendant complains that references to the Internet Publications of the Second Statement are embarrassing. The basis of this contention is that the Second Statement was loaded onto the Internet and anyone wanting access to it, presumably anywhere in the world, could log on to the appropriate service provider, and read and download it. I am not sure if I have used the correct technical terms in this brief description, but the meaning is clear. I was informed that the defendant may not be aware of who has accessed the Internet Publication or where that occurred, but that it is possible that some service providers may have recorded each “hit”, on occasions of access, and the place where it occurred. At the time of the hearing of this application that information was not in the possession of the defendant.
In Dow Jones & Company Inc v Gutnick (2002) 194 ALR 433, the High Court had to consider where the tort of defamation is committed when it is material on the World Wide Web or Internet. It held that under Australian law the tort is ordinarily committed where a person downloads the material because that is where the damage to reputation may be done: 445.
It seems likely that the Second Statement was loaded on to the Internet in at least one of the States of the United States of America, possibly Ohio. I was informed that under the law of that country, known as the “American Single Publication Rule”, the place where a statement is composed, in the case of multiple distribution, is the place where it is deemed to be published. If that is so, it may be seen that the law in the United States of America is different in a significant way to the law of Australia. Consequently, it is submitted by the defendant, that the lack of particulars as to where the Second Statement was downloaded renders the pleading embarrassing.
It is also submitted by the defendant that the Statement of Claim does not allege a republication of the Second Statement on the Internet, but that the original publication occurred in that way. That is not the effect of paragraph 36 of the Statement of Claim.
As has been mentioned, the plaintiff must identify the law areas when republication is relied on as a separate cause of action. So far, the plaintiff has not done so. The defendant contends that all paragraphs pleading this cause of action, namely paragraphs 36, 36A, 38A, 38B and 46, should be struck out with a direction to re-plead them.
The plaintiff acknowledges that in due course he will need to identify the jurisdiction within the United States of America in which publication of the Second Statement occurred, but contends that the place of publication of the media statement of the defendant and the “ATP Players Weekly” is within the knowledge of the defendant and will become known when discovery is made by the defendant. These contentions do not accord with the information provided by Mr Whitington during his submissions but he qualified what he said by the indication that part of his instructions are not yet clear.
In order to do justice to both parties, this part of the strike out application should be adjourned until the completion of discovery on this topic and any other pre-trial procedures which the plaintiff undertakes in aid of proof of this topic, are completed. When more is known, the plaintiff will have to plead the places or law areas where each publication or republication, as the case may be, is alleged to have occurred. The defendant will be relieved from further pleading to these allegations until this time.
Injurious Falsehood
The plaintiff pleads that the First Statement and the Second Statement are false statements and are malicious in that they were made with the intention to cause loss to the plaintiff’s commercial and business interests, which intention can be inferred from the various matters which are particularised in paragraph 40 of the Statement of Claim. The defendant complains that the pleading fails to allege in what sense or meaning the plaintiff says, for the purposes of this tort, that the First Statement and the Second Statement are false and further fails to allege any actual damage. Accordingly, the defendant contends that the plea should be struck out.
In Haines v Australian Broadcasting Corporation (1995) 43 NSWLR 404, Hunt CJ at CL said at 417:
“I accept that, as with imputations in a defamation claim, the representation in an injurious falsehood claim or a misleading or deceptive conduct claim must be pleaded with precision, so as to avoid the likelihood of confusion either at the pleading stage or at the trial in relation to the meaning for which the plaintiff contends: cf Singleton v Ffrench (1986) 5 NSWLR 425 at 433, 435; Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148 at 155; Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135 at 137-138, 155.”
The defendant submits that it would be easy for the plaintiff to allege the imputations in paragraphs 25 and 33, pleaded in the context of the cause of action in defamation, if they are the meanings for which he contends in this claim of injurious falsehood, or to allege some other imputations. The defendant contends that the plaintiff’s failure to do so renders the plea embarrassing.
Mr Harris contends for the plaintiff that it is not necessary to plead imputations in a claim for injurious falsehood but acknowledged that particulars of falsity must be pleaded and submitted that the plaintiff had done so. As I understand the submission, it is contended that earlier paragraphs in the Statement of Claim indicate the falsity. I expect the pleader considered that to be so, but in my view the defendant should not have to trawl through the pleading to see if sufficient particularity is given. The plaintiff must particularise the part or parts of the two statements which are false and in what respect they are false. He has not done so but it may be a simple matter to provide the required particulars by simply referring to earlier paragraphs of the Statement of Claim. The defendant must be informed what case, in that respect, it has to meet. The plaintiff must file and deliver an amended Statement of Claim to particularise the falsity or otherwise provide the particulars in a mutually acceptable manner.
The next complaint is that the Statement of Claim is deficient in its pleading of actual damage. Mr Harris made it plain that the plaintiff will seek leave to amend paragraphs 45-47 of the Statement of Claim which relate to damage alleged to have been suffered by the plaintiff in consequence of the injurious falsehood. The purpose of the proposed amendments is to better particularise the plaintiff’s claim for damages.
However, an issue between the parties remains. The damages sought by the plaintiff are for specific losses which may be described as special damages and general damages in the nature of damages for loss of enjoyment in playing in the Tournament and subsequent tournaments which, it is alleged, was diminished. Also, the plaintiff seeks damages for what might be called general business losses, such as diminution of his ability to attract valuable sponsorship and endorsement contracts internationally and in Australia. The defendant contends that most of these claims are unsustainable. The issue is whether damages for injurious falsehood are restricted to recovery of only actual loss and whether general losses of the type which the plaintiff claims are recoverable as damages for injurious falsehood. It is unnecessary for present purposes to describe the various claims in detail. All that is required is a decision as to whether the issue can and shall be resolved at this stage and if so how it is resolved. At this stage of the action, such an issue may be determined on a strike out application, or an application that an amended Statement of Claim be filed or delivered or possibly an application for summary judgment. In each instance the Court is concerned with an existing pleading and the decision is made on that basis. I am being asked to make a decision upon a pleading which has not yet been completed and I am reluctant to do so. However, I appreciate that the defendant does not want to be put in the position of having to make a further application once the amendment has been made and it is appropriate to try and resolve the issue at this stage.
In Fielding v Variety Incorporated [1967] 2 QB 841 Lord Denning observed that to make out the cause of action of injurious falsehood, the plaintiff had to show that the words used were false, he had to show malice and he also had to prove special damage: 850. He went on to say that the plaintiffs in that case could only recover damages for their probable money loss and not for their injured feelings. In that case the plaintiffs had also brought an action in defamation and they elected that damages for injury to feelings and reputation should be awarded in that action: 854.
In Palmer Bruyn & Parker Pty Limited v Parsons (2001) 208 CLR 388, Gummow J expressed the view that the plaintiff must prove “actual damage (which may include a general loss of business) suffered as a result of the statement”: 404. In discussing the origin of the tort of injurious falsehood, he referred, at 405, to Ratcliffe v Evans [1892] 2 QB 524 where Bowen LJ said at 527-528:
“[t]hat an action will lie for written or oral falsehoods, not actionable per se nor even defamatory, where they are maliciously published, where they are calculated in the ordinary course of things to produce, and where they do produce, actual damage, is established law. Such an action is not one of libel or of slander, but an action on the case for damage wilfully and intentionally done without just occasion or excuse, analogous to an action for slander of title.”
and noted that this passage was taken to be an accurate statement of the law respecting injurious falsehood by the High Court in Hall-Gibbs Mercantile Agency Ltd v Dun (1910) 12 CLR 84 at 92, 95, 102 and in Sungravure Pty Ltd v Middle East Airlines Airliban SAL (1975) 134 CLR 1 at 13, 16, 21-22. Kirby J also discussed the elements of the tort which he said included actual damage: 423. At 425 he again discussed the elements of the tort and said there must be actual damage to the plaintiff which was either the result that the person who published the false matters intended, or the natural and probable result of the publication. Later he said, at 432:
“It was common ground that damage was the gist of the action and that the appellant bore the onus of establishing that the publication complained of caused it actual damage. The appellant was not entitled to general damages for loss of reputation or the hurt felt by its officers. Actual damage, in the form of pecuniary loss, was necessary, although this could include damage such as a general downturn in profits, if that were established by evidence (Ratcliffe v Evans [1892] 2 QB 524; George v Blow (1899) 20 LR(NSW) 395.”
I mention that in Ratcliffe v Evans Bowen LJ discussed what is meant by special damage. He said, at 528, that special damage “means the particular damage (beyond general damage), which results from the particular circumstances of the case”. He said that when the expression in the context of injurious falsehood, “the particular damage (beyond the general damage) which results from the particular circumstances of the case, and of the plaintiff’s claim to be compensated”. He went on to say that the plaintiff ought to give warning in his pleadings in order that there may be no surprise at the trial: 528-529. He accepted that general loss of business may be part of the actual damage caused by the test: 529.
It may be accepted that the plaintiff may only recover actual damage, which includes a general loss of business and may not recover damages for injured feelings: see also Haines v Australian Broadcasting Corporation at 408. The plaintiff has a claim in the existing Statement of Claim for loss and damage resulting from his enjoyment in play in the Tournament being diminished. There is no basis for that claim and it should not be included in the further amended Statement of Claim.
The plaintiff must plead actual damage as a material fact: Ratcliffe v Evans at 528-529 and Haines v Australian Broadcasting Corporation at 408. Hunt CJ at CL also said in Haines at 408:
“Giving particulars of special damages under the general claim for damages does not constitute pleading actual damage as a material fact. The importance of actual damage as an element of the tort of injurious falsehood is that, because the tort is not concerned with injury to either reputation [citation omitted] or feelings [citation omitted].”
The plaintiff must amend the Statement of Claim in accordance with these principles.
Failure to allege foreign law
The defendant complains that the plaintiff has failed to allege in the Statement of Claim the law which is to be applied in resolution of the issues in the causes of action for breach of contract, defamation and injurious falsehood.
The plaintiff accepts the contention of the defendant that the law to be applied is the law of the place where the wrong occurred, the lex loci delicti: Regie National des Usines Renault SA v Zhang (2002) 187 ALR 1.
It is pleaded by the plaintiff that the First Statement was first published in the State of Ohio in the United States of America and that it constituted an actionable defamation under the laws of the State of Ohio (paras 26 & 27 of Statement of Claim). As has been seen, the plaintiff pleads that the republications occurred in South Australia and elsewhere in Australia and must plead where each publication occurred in Australia. The lex loci delicti will be the place of those publications.
As to the Second Statement, it is pleaded by the plaintiff that it was first published by the defendant in a State of the United States of America. I have mentioned that upon completion of discovery the plaintiff expects to be able to specify which State. It is also pleaded that the Second Statement was published on the Internet.
The plaintiff contends that it is not necessary for him to plead the content of the foreign law upon which he relies because there is a general presumption that the law of a foreign country is the same as that of the forum in which the proceedings are instituted unless proven otherwise. It is submitted that it is for the defendant, if he alleges that the foreign law is different, to allege the difference or differences in his defence. This proposition finds support in Mechniff v Simpson [1968] VR 62 per Menkennitt J at 64; Walker v WA Pickles Pty Ltd [1980] 2 NSWLR 281 and Lazarus v Deutschke Lufthansa Co [1985] 1 NSWLR 188. In Walker v WA Pickles Pty Ltd, Hutley JA said at 284-285:
“A pleading of a cause of action in tort which did not allege that the facts occurred in any particular law district would be formally valid. On the basis that the utmost economy is enjoined by the rules, it would seem to me that pleading of a foreign element in the initiating process in a claim in tort can never be necessary. Indeed, this seems to have been the practice: see Kolsky v Mayne Nickless Ltd; Anderson v Eric Anderson Radio & TV Pty Ltd .
This approach is reinforced by the principle that foreign law, which is, except between the States and the Territories of the Commonwealth, a fact, is presumed to be the same as local law; and a fact presumed to be true does not have to be pleaded …..” (citations omitted)
This is not a case where the plaintiff is seeking to gain a forensic advantage in the foreign law. If it was he would be obliged to plead the law in the Statement of Claim: see Zhang at 19-20.
In my view these cases express the correct state of the law in Australia as I must apply it. The consequence is that the plaintiff may rely on the rebuttable presumption and is not obliged to plead the relevant foreign law in the Statement of Claim. The defendant has alleged features of the law of the State of Ohio in its defence which may have an important bearing upon issues at trial. If it maintains those allegations in the defence after the Statement of Claim has been amended, the plaintiff will have the opportunity of reply. If the allegations are admitted, those features of the foreign law will not have to be the subject of evidence. If the plaintiff joins issue, the dispute as to the foreign law will be the subject of evidence.
Further issues regarding the amended Statement of Claim
The defendant seeks further and better particulars of particular paragraphs in the Statement of Claim through the medium of an order that the plaintiff file and serve an amended Statement of Claim.
Paragraph 18 of the Statement of Claim pleads various allegations about defects in the hearing of the plaintiff’s appeal against the fine. Paragraph 18.2 alleges that evidence which was irrelevant, lacking in probative force and prejudicial was admitted. The plaintiff has refused the request of the defendant to identify this evidence and contends that the defendant has a transcript of the evidence. Therefore no further particulars are necessary. I reject that contention. The defendant is entitled to have “fair notice” of the plaintiff’s case on this allegation and the particulars as requested should be given.
In paragraph 18.3 the plaintiff alleges that at the hearing of the appeal, opinion evidence from Mr Rapp, who acted as the principal prosecutor of the case against the plaintiff for the fine, was admitted. The defendant requested that this evidence be identified and that request has been refused by the plaintiff. The defendant is entitled to that information for the same reason.
In paragraph 18.5 the plaintiff alleges that not all of the ingredients of liability for a breach of the ATP Rules by the plaintiff were proved by the evidence admitted at the appeal hearing to which reference has been made. The defendant requested the plaintiff to identify the ingredients of liability and the law referred to by the plaintiff and this request has been refused by the plaintiff. I reject this request. The defendant is aware of the evidence placed before the Tribunal and of what was required to be proved to make out the case against the plaintiff. No allegation is made about any particular law. No further particulars are required.
In paragraph 18.6 the plaintiff alleges that not all ingredients of liability for breach of the ATP Rules by the plaintiff were proved by the admitted evidence. The defendant has requested the plaintiff to identify the ingredients of liability which were not proved by the admitted evidence and the plaintiff has refused. I reject this request for the same reason. The defendant has a copy of the transcript and is aware of what had to be proved. The plaintiff is not obliged to present his argument at this stage.
In paragraph 18.8 the plaintiff alleges that the appeal committee did not permit the plaintiff’s counsel adequate time to present the plaintiff’s case. The defendant has requested the plaintiff to state the material facts relied on to support that allegation. The plaintiff has refused. I reject the application. Whether adequate time was allowed is a matter of judgment in the circumstances of the appeal, the Rules and the consequences. The defendant is aware of the material facts relating to this allegation.
The same must be said about the request by the defendant, which the plaintiff has refused, for particulars of the allegation in paragraph 20.2.6 that the decision of the appeal committee failed to give proper and adequate consideration to the provisions of the ATP Rules and misconstrued the Rules. The defendant has requested the plaintiff to identify the way in which the appeal committee did so. The defendant is fully aware of the ATP Rules, of what transpired before the committee, and the reasons for the decision of the appeal committee. The issues raised by the pleading are matters of judgment.

In paragraph 20.2.7 the plaintiff has alleged that the appeal committee did not find and interpret the ATP Rules according to law. The defendant has requested the plaintiff to identify the ways in which it is alleged that the committee did not find and interpret the Rules according to law and the plaintiff has refused to do so. It is not clear what is meant by the allegation that the committee did not find the Rules according to law. The plaintiff must clarify that allegation by such further particularity as is necessary to do so. The allegation that the committee did not interpret the Rules according to law does not require further particularity. The findings of the committee, its reasons and the Rules are known to the defendant and particulars of the plaintiff’s contention are not required.
In paragraph 27 the plaintiff pleads that the First Statement constituted an actionable defamation under the laws of the State of Ohio. The request of the defendant to plead those laws has already been considered. I reject the contention that at this stage of the proceedings the plaintiff must plead the law of the State of Ohio for the reasons already given.
I have mentioned the pleadings in the Statement of Claim as to the republications of the First Statement. The defendant has requested particulars of those parts of the republications which are alleged in paragraph 28 and Schedule 1 to be republications of the First Statement. The plaintiff has refused that request. I have already dealt with the substance of this complaint. In my view no further particulars are required other than as I have specified. Also, the defendant contends that the “law areas” where each republication took place must be specified. I have dealt with this matter and indicated what further particulars the plaintiff must give.
The defendant seeks particulars in which States of the United States of America the Second Statement was first published. In paragraph 34 the plaintiff has indicated that particulars of the State in which the Second Statement was first published cannot be given until after discovery. This part of the application should be adjourned until discovery and other pre-trial procedures in relation to this matter have been completed.
Also, the defendant seeks further particulars of paragraph 35 of those parts of the republications of the Second Statement which are alleged to be a republication of the First Statement. I have dealt with this request earlier in these reasons.
The defendant also seeks particulars of the law areas in Australia where it is alleged each republication took place [paragraph 35]. These particulars should be given if possible after the completion of discovery or upon the plaintiff becoming aware of this information.
The defendant requested further particulars of paragraph 36, namely that the plaintiff state the law areas in Australia where it is alleged that the Second Statement was published in the “ATP Players Weekly”. I defer this part of the application until discovery is completed or the plaintiff otherwise acquires the information which is requested.
Also, the defendant has requested particulars of the law of the United States of America under which it is alleged that the Second Statement constituted an actionable defamation. I decline to order that such particulars be given at this stage for two reasons. First, as I have said, I do not think such particulars of foreign law need be given at this stage of the proceedings. Secondly, the plaintiff is not able to give such particulars until he has more information through discovery or otherwise.
The defendant also sought particulars of the allegations in paragraph 40. Earlier I have dealt with the submission of the defendant that the plaintiff should plead the meanings or imputations in the statements which are the subject of injurious falsehood. This request is, in effect, repetition of those submissions.
In paragraph 40.2 the plaintiff alleges that the First Statement and the Second Statement were malicious in that they were made with the intention to cause loss to the plaintiff’s commercial and business interests and further alleges that such intention can be inferred from various documents or emails from Mr Rapp which are particularised and various matters which are also particularised. The defendant requests the plaintiff to identify the servants or agents of the defendant who possessed such intention. In support of this request the defendant says that it is a corporation and can only act through its human agents. It does not have a mind of its own and to speak of its intention is to attribute a fiction. It is entitled to know whose intention is to be attributed to it. In Brambles Holdings Limited v Carey (1976) 15 SASR 270, the Full Court was concerned with whether a Company charged with an offence under the Road Traffic Act 1961 acted under an honest and reasonable mistake of fact and therefore was entitled to an acquittal. Consequently, the mental state of the Company had to be determined. Bray CJ said at 275:
“Of course, if mental states like knowledge or belief are to be attributed to a notional and metaphysical entity like a corporation, this can only be done by attributing to it the knowledge or belief actually possessed by some one or more of its officers: Lennard’s Carrying Co. Ltd v Asiatic Petroleum Co. Ltd.; Tesco Supermarkets Ltd. V. Nattrass. Very difficult questions can arise in this connection. I do not think, however, that it is necessary to enter into them now. It is enough to say that, in my view, it is a fallacy to say that any state of mind to be attributed to a corporation must always be the state of mind of one particular officer alone and that the corporation can never know or believe more than that one man knows or believes.” (citations omitted)
Bright J said at 279:
“It is the company’s belief that is important. The belief of any employee is relevant only in so far as that belief may be imputed to the company. ‘Belief’ is a strange word to apply to a company. Always, when beliefs or opinions or states of mind are attributed to a company it is necessary to specify some person or persons so closely and relevantly connected with the company that the state of mind of that person or those persons can be treated as being identified with the company so that their state of mind can be treated as being the state of mind of the company. This process is often necessary in cases in which companies are charged with offences such as conspiracy to defraud.”
and at 280:
“But it seems to me that the belief of a company is not an individual fact but an inference to be drawn from what it knew, that is to say, what was known by those whose knowledge is imputable to the company.”
Mitchell J said at 281-282:
“There may be some cases in which the knowledge of one officer of a company may be all that is to be attributed to the company in order to determine whether the company has any, and if so what, belief as to any particular state of facts, and whether such belief is reasonable. There are others in which it is necessary to consider the information of individual officers as a composite.”
I accept the plaintiff’s submission that, in the present case, the inference of motive on the part of the defendant, if in existence, is to be drawn from the totality of the proven facts relevant to that issue. I am satisfied that the plaintiff has given adequate particulars of those facts in paragraph 50.2 which also refers to paragraph 15 where further particulars of malice and bad faith are pleaded. I reject this application.
The plaintiff pleads in paragraph 41 that he will rely on the intention of the defendant to cause injury to his commercial and business interests in support of his claim for exemplary and aggravated damages. The defendant requires the plaintiff to identify the servants or agents of the defendant who possessed that intention. The plaintiff declines to do so. This application is refused for the same reason.
The defendant seeks further particulars of the plaintiff’s allegations as to damages. In paragraph 45 the plaintiff pleads losses, including that his ability to attract valuable sponsorship and endorsement contracts has been diminished causing a loss of $US1,000,000, in respect of international endorsement and sponsorship contracts and $US500,000 in respect of endorsement and sponsorship contracts in Australia. It is not clear whether these losses are pleaded with respect to all three causes of action but I have proceeded on the basis that such is the case.
I have mentioned that the plaintiff proposes to amend paragraphs 45 to 47 which relate to damages in so far as the damages flow from injurious falsehood. If these paragraphs are intended to apply to all causes of action, the plaintiff should make it plain and indicate what losses are claimed as damages with respect to each cause of action. He should specify what damages are claimed as general damages and special damages bearing in mind the limitation of the power in relation to the tort of injurious falsehood.
In Andrews v John Fairfax & Sons Ltd [1980] 2 NSWLR 225 Glass JA said at 252:
“……. if a plaintiff sets out to prove special damage, he undertakes to show that the loss was caused by the defamatory publication. If he elects not to do this, but merely to prove a decline in his overall business situation, leaving it to inference that he has suffered financial loss in some way connected with the defamatory material, he is at liberty to present such a case. He is also permitted to tender financial detail in aid of such a decline in business. Indeed, it is hard to imagine how a claim for general loss of this character could be presented without some supporting information of a financial kind.”
In my view, the plaintiff should give particulars of the alleged losses of international and local endorsements and sponsorship.
The defendant also seeks further particulars of paragraph 46.1, namely of the adverse effect on the plaintiff’s future earnings as a result of the First Statement and the Second Statement and his continuing loss or damage suffered as specified in paragraph 45. Further particulars are also sought by the defendant of allegations as to damages made in paragraphs 45, 46 and 47. I defer consideration of this request because of the intention of the plaintiff to re-plead the paragraphs relating to damages. The plaintiff will, no doubt, bear these requests in mind when re-pleading the allegations as to damages.
Orders
I make the following orders:
1Paragraph 33.2 of the Statement of Claim is struck out and the plaintiff is given leave to plead any further or other imputation which is distinct from the imputation already pleaded.
2The plaintiff file and serve a further amended Statement of Claim by amending paragraph 28, Schedule 1 and paragraph 35 and Schedule 2 so as to particularise the law areas where each publication was made upon which the plaintiff relies.
3Paragraph 30A, s 38A or 30B and 38B of the Statement of Claim be struck out depending upon whether the plaintiff relies upon the republications of the First Statement and the Second Statement as giving rise to separate causes of action in defamation against the defendant or as being in support of his claim for damages arising out of republication of the First Statement and the Second Statement.
4Republications 6 and 7 in Schedule 2 of the Statement of Claim are struck out.
5The application to strike out paragraphs 36, 36A, 38A, 38B and 46 is adjourned until after the completion of discovery of documents by the defendant in relation to the subject matter referred to therein and to any pre-trial procedures undertaken by the plaintiff in aid of proof of such subject matter to the intent that the plaintiff must then plead the places or law areas where each publication or republication, as the case may be, is alleged to have occurred.
The defendant is relieved from any obligation to further plead to those paragraphs until that time.
6The plaintiff file and serve a further amended Statement of Claim so as to particularise the part or parts of the First Statement and the Second Statement which are alleged to be false and which are the basis of the cause of action of injurious falsehood.
7The plaintiff file and serve a further amended Statement of Claim so as to particularise the damage suffered by him in consequence of the alleged injurious falsehood.
8The plaintiff file and serve a further amended Statement of Claim to particularise the claim for damages in accordance with these reasons.
9The plaintiff file and serve a further amended Statement of Claim to particularise the allegations in the following paragraphs of the Statement of Claim, namely:
9.1Paragraph 18.2, the evidence alleged to be irrelevant, lacking in probative force and prejudicial.
9.2 Paragraph 18.3 identifying the evidence referred to therein.
9.3Paragraph 20.2.7 clarifying what is meant by the allegation that the appeal committee did not “find” the ATP Rules according to law.
10The application that the plaintiff file a further amended Statement of Claim giving further particulars of paragraphs 34 and 36 of the Statement of Claim so as to specify the State of the United States of America where the Second Statement was first published is adjourned until after the completion of discovery of documents by the defendant in relation to the subject matter referred to therein and to any pre-trial procedures undertaken by the plaintiff in aid of proof of such subject matter to the intent that the plaintiff must then plead the places or law areas where each publication or republication, as the case may, is alleged to have occurred. The defendant is relieved from any obligation of further pleading to those paragraphs until that time.
11The plaintiff file and serve a further amended Statement of Claim further particularising the damages and losses alleged to him as alleged in paragraphs 45 and 47 of the Statement of Claim in accordance with the reasons for judgment upon the applications of the defendant.
12Except in so far as the application of the defendant to strike out various paragraphs of the Statement of Claim and that the plaintiff file and serve a further amended Statement of Claim have been successful or adjourned, the applications of the defendant are dismissed.
13The parties are at liberty to speak to the minutes of this order.
14The parties are at liberty to apply where appropriate in accordance with these reasons upon seven days in writing to the other party.
I shall hear the parties as to costs.