Kingsfield Holdings Pty Ltd v Sullivan Commercial Pty Ltd - [2021] WASC 289

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   KINGSFIELD HOLDINGS PTY LTD -v- SULLIVAN COMMERCIAL PTY LTD [2021] WASC 289
CORAM:   ALLANSON J
HEARD:   3 AUGUST 2021
DELIVERED          :   25 AUGUST 2021
FILE NO/S:   CIV 2270 of 2020
BETWEEN:   KINGSFIELD HOLDINGS PTY LTD
First Plaintiff
JEFFREY STEWART LEE
Second Plaintiff
AND
SULLIVAN COMMERCIAL PTY LTD
First Defendant
PETER ANDREW DUFFIELD
Second Defendant
IVAN NEWBY RUTHERFORD
Third Defendant
DAVID JOHN HENDERSON
Fourth Defendant
PAOLO FILIPPO AMARANTI
Fifth Defendant
ROTTNEST ISLAND AUTHORITY
Sixth Defendant
DEPARTMENT OF HEALTH
Seventh Defendant

Catchwords:

Practice and procedure - Defendants' application for summary judgment or alternatively strike out - Where plaintiffs allege conspiracy - Whether agreement can be inferred from pleaded facts - Whether action an abuse of process - Turns on own facts

Legislation:

Corporations Act 2001 (Cth)
Rottnest Island Authority Act 1987 (WA)
Rules of the Supreme Court 1971 (WA)

Result:

Summary judgment application granted. Judgment entered for the first, second, third, fifth and sixth defendants

Category: B

Representation:

Counsel:

First Plaintiff	:	TO Coyle
Second Plaintiff	:	TO Coyle
First Defendant	:	MC Goldblatt
Second Defendant	:	MC Goldblatt
Third Defendant	:	MC Goldblatt
Fourth Defendant	:	No appearance
Fifth Defendant	:	DM McKenna
Sixth Defendant	:	A Shuy & P Femia
Seventh Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Michael Paterson & Associates
Second Plaintiff	:	Michael Paterson & Associates
First Defendant	:	Lawton Gillon
Second Defendant	:	Lawton Gillon
Third Defendant	:	Lawton Gillon
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mills Oakley
Sixth Defendant	:	State Solicitor's Office
Seventh Defendant	:	No appearance

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

CC Containers Pty Ltd v Lee [2011] VSC 537
Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402
Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537
Ex parte Coffey; Re Evans [1971] 1 NSWLR 434
Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117
Miles v Bull [1969] 1 QB 258
Monadelphous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176
NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107
Palmer v Dolman [2005] NSWCA 361
R v Associated Northern Collieries (1911) 14 CLR 387
Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14
Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598
Wedge v Service Finance Corp Ltd [2002] WASCA 54
Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433

ALLANSON J:

Introduction

In January 2013, the plaintiffs commenced three unsuccessful defamation actions against two of the defendants: Sullivan Commercial Pty Ltd and Ivan Newby Rutherford.
In this action, the plaintiffs allege that they were misled into commencing and maintaining the defamation actions by the fraudulent conduct of the defendants who, acting in pursuit of a common design, caused the plaintiffs to suffer loss and damage by becoming liable for costs, including their own costs, in those actions. The plaintiffs claim damages for fraud and conspiracy, and also orders setting aside the judgments entered against them.
The plaintiffs have named seven defendants to this action. One has not yet been served and the plaintiffs have foreshadowed an application to substitute a new defendant for the seventh defendant.
The five defendants presently before the court apply for summary judgment, alternatively to strike out the statement of claim. The defendants rely on the same grounds for the application.
All defendants apply for summary judgment on the grounds that:
(a)the action is frivolous or vexatious;
(b)the defendants have a good defence on the merits; or
(c)the action should be disposed of summarily as an abuse of process.
Alternatively, the defendants apply to strike out the Indorsement of Writ filed on 31 December 2020, the Statement of Claim filed on 4 January 2021, and the Minute of Proposed Amended Statement of Claim filed 19 May 2021, in their entirety.

The parties and other relevant persons

The plaintiffs

Jeffrey Stewart Lee is the sole director and shareholder of Kingsfield Holdings Pty Ltd. Kingsfield was the lessee of premises at Rottnest Island known as the Wellness Centre. Mr Lee conducted a pharmacy business under a sublease on part of the Wellness Centre.[1]
[1] Statement of claim [7]. All references to the statement of claim are to the minute of proposed amended statement of claim dated 19 May 2021.
Kingsfield also conducted a health food café business trading as 'Quokka Joe's' from part of the Wellness Centre premises.[2]

The defendants

[2] Statement of claim [9]. I refer to this as the Café in these reasons.

The first defendant, Sullivan Commercial Pty Ltd, conducted business as a property management agent and provided property management services to the sixth defendant, the Rottnest Island Authority. The second defendant, Peter Duffield, is a director of Sullivan Commercial.
The third defendant, Ivan Newby Rutherford, was a director of Abellio Pty Ltd, which conducted bakery and café businesses on Rottnest Island.
The fifth defendant, Paolo Filippo Amaranti was, at the relevant time, the chief executive officer of the sixth defendant, the Rottnest Island Authority.
The Rottnest Island Authority is a body corporate established by the Rottnest Island Authority Act 1987 (WA).
The fourth defendant, David John Henderson, was employed by Abellio as manager of the bakery and café. He has not been served.
The current seventh defendant, the Department of Health, appears to have been sued as the employer of officers in the Department.
The fourth and seventh defendants did not participate in these applications.
The statement of claim also names Intan Chen, Rebecca Delsar, Scott Whiddon, and Stan Goodchild as employees of the Department of Health. No action has been brought against any of them individually.

The procedural history of this action

The plaintiffs commenced these proceedings by writ filed 31 December 2020. The writ bore an indorsement of claim which simply set out the relief now claimed in the prayer for relief. The indorsement did not comply with O 6 r 1 of the Rules of the Supreme Court 1971 (WA), but that point has not been taken.
The plaintiffs filed a statement of claim on 4 January 2021.
The action was admitted to the CMC list on 15 March 2021.
The plaintiffs filed a minute of proposed amended writ on 21 May 2021 and a minute of proposed amended statement of claim on 19 May 2021.
The proposed amendment to the writ is to replace the named seventh defendant, the Department of Health, with the Minister for Health.
On 25 May 2021, the court made orders programming foreshadowed applications by the defendants to strike out any amendment in the minute of proposed statement of claim, for summary judgment on the action, and for security for costs. The application to amend the writ has been deferred to follow judgment on these applications.
On 18 June 2021, Sullivan Commercial, Mr Duffield, and Mr Rutherford, filed a summons seeking summary judgment, alternatively to strike out the statement of claim. They also sought orders for security for costs, pursuant to s 1335(1) of the Corporations Act 2001 (Cth), O 25 r 1 of the Rules and, in the inherent jurisdiction of the court. The applications were supported by affidavits of Mr Rutherford, Mr Duffield, Peter Frederick Smith, and (in relation to security for costs) Alexander Max Freund, a solicitor for the defendants.
On 21 June 2021, Mr Amaranti applied for summary judgment, to strike out the statement of claim and for security for costs. The summons was supported by an affidavit of Mr Amaranti.
On 18 June 2021, the Rottnest Island Authority applied by summons for summary judgment, alternatively to strike out the indorsement on the writ and the statement of claim in their entirety.
The applications for security for costs have been deferred until after judgment on the other applications.

The actions brought by Kingfield and Mr Lee

To understand the current claim, it is necessary to outline the series of actions brought by the plaintiffs against various defendants.[3]
[3] All of which are pleaded in the statement of claim in this action.
On 17 December 2012, Kingsfield commenced proceedings against Sullivan Commercial and the Rottnest Island Authority seeking orders for pre-action discovery in relation to potential defamation proceedings.[4]
[4] CIV 3021 of 2012.
On 23 January 2013 Kingsfield commenced proceedings against Mr Rutherford, for damages for defamation.[5]
[5] CIV 1106 of 2013 (First Action).
On 30 January 2013, in separate actions, Kingsfield and Mr Lee commenced proceedings against Sullivan Commercial for damages for defamation.[6]
[6] CIV 1146 of 2013 (Second Action); CIV 1147 of 2013 (Third Second Action).
The claims against Sullivan Commercial alleged that it published a letter, dated 31 January 2012, addressed to Kingsfield but copied to one or more others.[7] The claims against Mr Rutherford alleged that he published a statement defamatory of the plaintiffs to Mr Duffield, by spoken word.[8]
[7] Affidavit of Peter Andrew Duffield sworn 18 June 2021, 'PAD 13'; Statement of claim [35].
[8] Affidavit of Ivan Newby Rutherford sworn 18 June 2021, 'INR 6'; Statement of claim [34].
On 25 March 2015, the defamation actions against Sullivan Commercial were dismissed by consent orders and Mr Lee and Kingsfield were ordered to pay Sullivan Commercial's costs.
On 11 April 2016, the two actions against Mr Rutherford were dismissed after trial.[9] In summary, the trial judge, Kenneth Martin J, found that the plaintiffs had failed to make good any of the alleged defamatory meanings; further, Mr Lee had not been identified as an object of the alleged publication. His Honour ordered Kingsfield and Mr Lee to pay Mr Rutherford's costs.
[9] Kingsfield Holdings Pty Ltd v Rutherford [2016] WASC 117.
In October 2015, Mr Lee and Kingsfield commenced further proceedings in the Supreme Court (CIV 2660 of 2015) against the Rottnest Island Authority, the State of Western Australia, Paolo Filippo Amaranti (the chief executive office of the Rottnest Island Authority) and Mr Colin Brandis (an employee of the Authority) seeking damages for misfeasance in public office and damages for misleading or deceptive conduct. Those proceedings are continuing.

The pleaded claim

Background

The plaintiffs plead the following sequence of facts.
On 23 January 2012, officers of the Food Unit at the Department of Health attended at the Café and conducted a food safety assessment. One of the officers who attended was Scott Whiddon.[10]
[10] Statement of claim [10].
Mr Lee told Mr Whiddon that the Café might close early that day in which case he would attend to some issues of non-compliance that had been raised. None of the officers had required the Café to close.[11]
[11] Statement of claim [11].
Shortly after the inspection, Mr Whiddon informed the manager of the Food Unit, Mr Goodchild, of the inspection, and that Mr Lee had told him the Café might close early that day in which case Mr Lee would attend to some issues of non-compliance that had been raised, or similar information.[12]
[12] Statement of claim [12].
The Café was not closed earlier than the normal closing time.
Mr Goodchild communicated to Mr Amaranti that Mr Lee had said 'the Café might close early [on 23 January] in which case he would attend to some of the issues that had been raised', or that the Café had been closed early on 23 January 2012 after the inspection, or 'similar information'.[13]
[13] Statement of claim [14].
Mr Amaranti communicated 'those matters' to Mr Duffield.[14]
[14] Statement of claim [15].
On 31 January 2012, Mr Goodchild sent a letter to Kingsfield in relation to the inspection.[15] The plaintiffs do not plead the content of that letter as material facts.
[15] Statement of claim [16].
By letter dated 31 January 2012, signed by or on behalf of Mr Duffield, Sullivan Commercial informed the plaintiffs that it had been advised that the Café had been closed following a health inspection the previous week, asked Kingsfield to confirm whether the inspection had taken place, and to provide a copy of any health notices issued in relation to the Café.[16] The alleged publication of that letter to third parties was the subject of the defamation actions against Sullivan Commercial.
[16] Statement of claim [17].
Following receipt of the letter from Sullivan Commercial, the plaintiffs instructed solicitors who wrote to Mr Duffield and asked him to identify the source of the 'Early Closure Information'.[17]
[17] Statement of claim [18].
Not later than 2 May 2012 the defendants[18] agreed to combine in a 'Common Design' and with the intention of causing detriment to the plaintiffs by unlawful means, alternatively for the sole or predominant purpose of causing detriment to them.[19]
[18] Or some of them: see statement of claim [20].
[19] Statement of claim [19].
On 2 May 2012, solicitors for Mr Duffield advised Mr Lee by email that Mr Rutherford had provided the Early Closure Information to Mr Duffield.[20]
[20] Statement of claim [21].
Following a letter from Kingsfield's solicitors, dated 26 June 2012, Mr Rutherford informed Kingsfield's solicitors that he had not imparted the Early Closure Information to anyone.[21]
[21] Statement of claim [23] and [24].
On around 20 August 2012, a solicitor for Sullivan Commercial said to Mr Lee that he was instructed that Mr Rutherford was the source of the 'Closure Information'.[22]
[22] Statement of claim [29].
At a meeting on 28 August 2012, Mr Rutherford told Mr Lee, in relation to the email on 2 May 2012, that he had not said 'any such things to Mr Duffield'.[23]
[23] Statement of claim [30].
On 17 December 2012, Kingsfield commenced proceedings against Sullivan Commercial seeking orders for pre-action discovery relating to the letter of 31 January 2012 and the Early Closure Information.[24]
[24] Statement of claim [32].
On 23 January 2013, Mr Duffield swore an affidavit in the pre-action discovery in which he said that Mr Rutherford had imparted the Early Closure Information to him in late January 2012.[25]
[25] Statement of claim [33].
On 23 January 2013 and 30 January 2013, the plaintiffs commenced three actions against Mr Rutherford and Sullivan Commercial.[26] The actions against Sullivan Commercial were 'in respect to the 31 January 2012 Letter on the basis of the publication of the Early Closure Information to the [Authority]'.[27]
[26] Statement of claim [34] - [36].
[27] Statement of claim [35] and [36].
The plaintiffs allege that they commenced the three defamation actions in reliance on the representations that had been made to them by the solicitors for Mr Duffield and Sullivan Commercial on 2 May 2012 and 20 August 2012, and by Mr Duffield in the affidavit of pre-action discovery.[28] They allege Sullivan Commercial and Mr Duffield made those representations pursuant to and in furtherance of the defined 'Common Design', knowing they were not true, alternatively reckless as to whether they were true or not.[29]
[28] Statement of claim [38]. The plaintiffs define the representations as the First, Second and Third Duffield Informant Representations.
[29] Statement of claim [37].
On 15 April 2013, Mr Rutherford filed defences in which he admitted having imparted the Early Closure Information to Mr Duffield.[30]
[30] Statement of claim [39].
On 12 June 2014, in sworn answers to interrogatories administered in the actions, Mr Rutherford swore that Mr Henderson had told him the Café was closed following a health inspection.[31]
[31] Statement of claim [48].
By consent orders made on 25 March 2015, the plaintiffs' claims against Sullivan Commercial were dismissed with the plaintiffs ordered to pay costs, and those costs were paid on or around 18 May 2015.[32] The plaintiffs allege that Mr Lee consented to the orders dismissing the actions and paid the costs in reliance on the three representations that had been made to them and Mr Rutherford's admissions in his defence.[33] It was, however, common ground before me that the letter of 31 January 2012 had not been sent to any third party, so the plaintiffs could not prove publication.
[32] Statement of claim [52] - [54].
[33] Statement of claim [55].
The plaintiffs' actions against Mr Rutherford were heard together on 11, 12 and 20 November 2015. Mr Duffield and Mr Rutherford both gave evidence at trial in which they said that Mr Rutherford had told Mr Duffield that the plaintiffs' Café had been closed following a health inspection.[34] Mr Henderson also gave evidence at the trial in which he said that he had observed that the Café was closed earlier than usual on 23 January 2012 and had imparted that information to Mr Rutherford.[35]
[34] Statement of claim [59], [62].
[35] Statement of claim [65].
The plaintiffs' claims against Mr Rutherford were dismissed and the plaintiffs ordered to pay costs.[36]

Collateral matters

[36] Statement of claim [68] and [69].

The plaintiffs alleged the following matters were also pursuant to and in furtherance of the conspiracy against them.
(1)In February and March 2014, at mention hearings in the Fremantle Magistrates Court on charges brought against Abellio by the Health Department, Mr Duffield appeared and announced himself as 'Peter Smith', a manager of Abellio or one of its businesses.[37]
(2)The Department of Health did not take steps to recover fines of $100,000 imposed on Abellio on those charges.[38]
(3)On 20 April 2015, Ms Delsar gave evidence at the hearing of charges against Kingsfield in which she said, incorrectly, that Mr Whiddon had not been present at the inspection.[39]
(4)On 26 June 2018, in its notice of decision on a Freedom of Information application by Mr Lee, the Department of Health said, incorrectly, that Mr Whiddon did not travel to Rottnest Island on 23 January 2012.[40]

The claims of loss and damage

[37] Statement of claim [41] and [42].

[38] Statement of claim [46].

[39] Statement of claim [56].

[40] Statement of claim [73] - [74].

The plaintiffs plead that the causal link between the conduct of the defendants and the loss they suffered is the plaintiffs' reliance on the three representations made by or on behalf of Mr Duffield.
The plaintiffs plead:
75 By reason of their Common Design and conduct in furtherance thereof, all of the defendants are jointly liable to Kingsfield and Mr Lee to pay damages for losses consequent upon their reliance on the First, Second and Third Duffield Informant Representations.
76Kingsfield and Mr Lee suffered loss and damage in consequence of the fraudulent conduct of the defendants in that but for their reliance on the First, Second and Third Duffield Informant Representations they would not have commenced the First, Second or Third Actions in which case they would not have paid:
76.1the costs of $40,000 paid to Sullivan Commercial pleaded in paragraph 54 above;
76.2the costs of $160,000 paid to Mr Rutherford as pleaded in paragraph 70 above;
76.3the fees of approximately $260,000 paid to their own solicitors as pleaded in paragraph 71 above.
77Kingsfield and Mr Lee suffered loss and damage in consequence of the conduct of the defendants pursuant to and in furtherance of the Common Design in that the consequence of such conduct was that Kingsfield and Mr Lee were misled into commencing and maintaining the First, Second and Third Actions as a result of which Kingsfield and Mr Lee incurred the liabilities and made the payments pleaded in paragraph 76.1, 76.2 and 76.3 above. (emphasis added)

The Common Design

The central thesis in the plaintiffs' case is that, some time after 31 January 2012 and not later than 2 May 2012, the defendants[41] agreed to combine with a Common Design:
19.1to represent to Kingsfield and Mr Lee that it was Mr Rutherford who had conveyed the Early Closure Information[42] to Sullivan Commercial and not to disclose the involvement of the Department and Mr Amaranti in the communications leading to the 31 January 2012 Letter being sent, so that Mr Amaranti and the Department or its officers would not be at risk of being sued for defamation and from other action that might be taken by Kingsfield and Mr Lee;
19.2with the intention of causing detriment to Kingsfield and Mr Lee:
19.2.1by the use of unlawful means;
19.2.2alternatively, for the sole or predominant purpose of causing detriment to Kingsfield and Mr Lee.[43]
[41] Or some of them. The plaintiffs plead, in the alternative, that Mr Rutherford agreed to become a party to and to advance the Common Design by 15 April 2013; Mr Henderson by early November 2015; and officers of the Health Department by late April 2014. In each case, on the plaintiffs' pleaded causation, that was after the plaintiffs had commenced the actions against Mr Rutherford and Sullivan Commercial in reliance on the representations made by Mr Duffield.
[42] Another defined term, in the statement of claim [17.1], being 'that the Café had been closed following a health inspection last week'.
[43] Statement of claim [19].
The plaintiffs plead that the defendants' agreement can be inferred from the following matters:
(1)Between 2006 and 2009 the plaintiffs had various disputes with Mr Amaranti, on behalf of the Authority, relating to the lease and other matters.[44]
[44] Statement of claim [19.4] - [19.6].
(2)During the financial years ending 30 June 2012, 2013 and 2014, Abellio experienced financial difficulties and was in arrears of rent and other payments to the Authority.[45]
(3)The three 'representations' by or on behalf of Mr Duffield on 2 May 2012 and 20 August 2012, and his affidavit in the pre-action discovery action, that Mr Rutherford had provided the information that the Café had been closed following a health inspection.[46]
(4)Mr Rutherford's admission in his defences that he gave the information to Mr Duffield in late January 2012.[47]
(5)Mr Duffield's appearance as 'Peter Smith' for Abellio in the Fremantle Magistrates Court on 4 February 2014 and 4 March 2014.[48]
(6)The failure by the Department of Health to take any steps to recover the fine imposed on Abellio.[49]
(7)Mr Rutherford's sworn answers to interrogatories in the defamation proceedings in which he said that Mr Henderson told him that the Café was closed following a health inspection.[50]
(8)The evidence of Ms Delsar in the magistrates court that Mr Whiddon had not been present at the inspection of the Café.[51]
(9)The plaintiffs commenced proceedings against the Authority, the State of Western Australia, Mr Amaranti and another employee of the Authority for damages for misfeasance in public office and misleading and deceptive conduct.[52]
(10)The evidence given by Mr Duffield, Mr Rutherford, and Mr Henderson in the defamation trial.[53]
(11)The statement by the Department of Health in an FOI application brough by Mr Lee that Mr Whiddon did not travel to Rottnest Island on 23 January 2012.[54]
[45] Statement of claim [19.8].
[46] Statement of claim [21], [29], [33].
[47] Statement of claim [39].
[48] Statement of claim [41] and [42].
[49] Statement of claim [46].
[50] Statement of claim [48].
[51] Statement of claim [56] - [57].
[52] Statement of claim [19.7].
[53] Statement of claim [59], [62] and [65].
[54] Statement of claim [72] and [73].
In the proposed amended statement of claim, the plaintiffs plead that the defendants 'knew that the representations about Mr Rutherford having conveyed the Source Information to Mr Duffield were false or, alternatively, the defendants were reckless as to the truth of the representations'.[55]
[55] Statement of claim [19.10].

Summary judgment

The principles

Order 16 r 1 of the Rules deals with an application for summary judgment by a defendant. The court may grant summary judgment if satisfied that the action is frivolous or vexatious, that the defendant has a good defence on the merits, or that the action should be disposed of summarily or without pleadings.
The general principles in relation to the grant of summary judgment are settled and have been recently restated by the Court of Appeal in NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd.[56] In summary (citation of authority omitted):
(1)The power to order summary judgment should be exercised with great care.
(2)The cases where summary judgment ought properly to be granted have been described as 'when there is no real question to be tried', 'only in the clearest of cases', and 'when there is a high degree of certainty about the ultimate outcome of the proceedings if it went to trial'.
(3)The assessment of the claim's prospects of success if it went to a trial in the ordinary way has an evaluative character to it, but it is doubtful that it can be strictly described as discretionary.
(4)Summary judgment is not confined to cases where it is 'so to speak apparent at a glance' that the claim is untenable and whether a claim is untenable may require extensive argument.
(5)There is, however, no error in dismissing an application where, having regard to the complex or serious points of law involved, a judge at first instance concludes that it cannot be said that the claim is so clearly untenable that it could not possibly succeed if it went to trial.
[56] NRW Contracting Pty Ltd v Cliffs Asia Pacific Iron Ore Pty Ltd [2020] WASCA 107 [43] - [55]; see also Sutton Investments Pty Ltd v Realistic Investments Pty Ltd [2017] WASCA 14 [24]; and Monadelphous KT Pty Ltd v Transalta Energy (Australia) Pty Ltd [2017] WASCA 176 [116].
Shortly put, the defendants must demonstrate certainty of outcome.
The parties have filed extensive evidence in these applications. In Webster v Lampard[57] Mason CJ, Deane and Dawson JJ emphasised the need for exceptional caution 'where the ultimate outcome turns upon the resolution of some disputed issue or issues of fact'. After outlining the facts, their Honours said:
It must be stressed that… the above outline of the relevant facts is largely premised on an assumption that the evidence of the Websters would ultimately be accepted if the matter were to proceed to trial in the ordinary course. In circumstances where the evidence of the Websters was not inherently incredible and where no opportunity for cross-examination had been extended before the Master, that was an assumption which plainly had to be made for the purposes of the application for summary judgment…

The evidence

[57] Webster v Lampard [1993] HCA 57; (1993) 177 CLR 598, 604.

The parties between them filed approximately 750 pages of affidavit evidence in relation to the summary judgment application, with many attachments.

Mr Rutherford

Mr Rutherford filed an affidavit, sworn 18 June 2021.
Relevantly, he deposed that on an occasion in January 2012 (on a date he could not remember) he said to Mr Duffield words to the effect that the Quokka Joe's Café had closed following a health inspection the previous week. He had been told that by Mr Henderson.
Mr Rutherford deposed that he has never discussed that matter with Mr Amaranti, or representatives of the Rottnest Island Authority or the Health Department. He stated that he had no direct knowledge of the health inspection at the Café and his only information was from Mr Henderson.
Mr Rutherford denied the allegation that he had asked Mr Duffield to appear on behalf of Abellio in the Fremantle Magistrates Court. He further stated that in around May or June 2014, Abellio sold the Rottnest bakery and all proceeds from the sale were taken by the first ranking secured creditor. Abellio could not afford to pay the fines imposed on it in the Magistrates Court and he caused it to be liquidated in approximately February 2015.
Mr Rutherford deposed that at no time did anyone ask or tell him to represent to Kingsfield and Mr Lee that he had made the statement about closure of the Café to Mr Duffield; at no time did he discuss or enter into an arrangement with anyone that he would conceal anything done or said by Mr Amaranti or the Department or anyone else. In defending the defamation actions, he admitted the allegations that he had made the relevant statement to Mr Duffield because it was true.
Finally, Mr Rutherford stated that, on 18 April 2013, solicitors acting for him in the defamation proceedings wrote to the plaintiffs, referring to the plaintiffs' limited prospects of success, and made a without prejudice settlement offer which included payment of legal costs incurred to date, and undertaking not to republish the challenged publication, and damages of $1,000. They received no response.[58]

Mr Duffield

[58] Affidavit of Ivan Newby Rutherford sworn 18 June 2021 [30] - [31], 'INR 3'.

Mr Duffield also made an affidavit sworn 18 June 2021.
He deposed that during a conversation with Mr Rutherford on Rottnest Island on 31 January 2012, Mr Rutherford told him words to the effect that Quokka Joe's Café had been closed following a health inspection the previous week. He was not aware before Mr Rutherford made that statement of any health inspection or closure of the Café or any related matter.
Following his conversation with Mr Rutherford he prepared and sent the letter of 31 January 2012 to Kingsfield as the owner of the Café.
Mr Duffield said he instructed his solicitors to send to Mr Lee the email of 2 May 2012. That email stated that Mr Rutherford had advised him that the Café had been closed following the health inspection. Mr Duffield deposed that statement was true and that he had had no discussions with anyone in relation to who had made the statement to him. Mr Duffield deposed that on his instructions, on behalf of Sullivan Commercial, his solicitors continued to exchange correspondence with the plaintiffs. He agreed that he instructed the solicitors in relation to the preparation of the pre-action discovery affidavit. He confirmed the correctness of it.
Mr Duffield denied that he had discussions with anyone to mislead the plaintiffs in relation to any matter, including that it was Mr Rutherford who had made the relevant statements to him. He deposed that at no time did he discuss or make any arrangement with anyone to conceal anything done or said by Mr Amaranti or any representative of the Department or anyone else. Specifically, he denied the alleged communication with Mr Amaranti pleaded by the plaintiffs.
In May 2013, Mr Duffield also made an offer to the plaintiffs to settle the defamation proceedings, which included an offer to pay the plaintiffs' costs.[59] Mr Duffield received no reply.
[59] Affidavit of Peter Andrew Duffield sworn 18 June 2021 [42], 'PAD 10'.
Mr Duffield denied being asked to attend, or attending, the Fremantle Magistrates Court on behalf of Abellio.

Peter Frederick Smith

The first, second, and third defendants also filed an affidavit of Peter Frederick Smith, sworn 24 May 2021, in which he said that he had appeared for Abellio in the Fremantle Magistrates Court on 4 February 2014 and 4 March 2014.

Cross examination

Both Mr Duffield and Mr Smith attended for cross examination on the summary judgment application on an optimistic attempt by the plaintiffs to prove by voice comparison that it was Mr Duffield who had appeared in the Magistrates Court.
It was impossible for me to make the finding for which the plaintiffs contended. There is nothing striking or distinctive in the voice of either man. I had no reason to doubt the evidence of both witnesses that it was Mr Smith who had appeared.

Mr Amaranti

Mr Amaranti swore an affidavit dated 18 June 2021.
Relevantly, he swore that he had no recollection of receiving any communication from Mr Goodchild about the health inspection of the Café and had no recollection of any communication with Mr Duffield concerning the inspection or anything that occurred as a result of it. Mr Amaranti denied entering into an agreement with any other defendant, or anyone, to misrepresent who communicated the information about the closure of the Café to Mr Duffield.

Mr Lee

Mr Lee filed an affidavit on behalf of the plaintiffs, sworn 14 July 2021, in opposition to the summary judgement application. He set out and confirmed on oath the allegations pleaded in the statement of claim, including those regarding the inspection of the plaintiffs' Café in January 2012.
Mr Lee confirmed he caused the actions for defamation to be commenced in reliance on what he had been told about Mr Rutherford being the source of information for what Mr Duffield had written in his letter to Kingsfield.[60]
[60] Affidavit of Jeffrey Stewart Lee sworn 14 July 2021 [22].
Mr Lee adduced no evidence to support the pleaded allegations that Mr Amaranti communicated any information to Mr Duffield; that Mr Duffield's representations about the source of his information was false; or that the admissions of Mr Rutherford, and the evidence Mr Rutherford, Mr Duffield and Mr Henderson at trial were false. He adduced no evidence of the alleged agreement between the defendants and relied solely on the inferences that the plaintiffs say can be drawn from the matters pleaded in the statement of claim.

Conclusion on the evidence

In summary, the defendants have denied entering into the agreement alleged by the plaintiffs.
It may not generally be appropriate in an interlocutory application to resolve disputed questions of fact on competing affidavits. But in the present matter there is no conflict in the affidavits. The plaintiffs have produced no direct evidence of the allegation that Mr Amaranti communicated information about the closure of the Café to Mr Duffield and nothing to challenge Mr Duffield's sworn evidence that his information did not come from Mr Amaranti, but from Mr Rutherford. In the face of the sworn denials by the defendants, the plaintiffs have advanced no evidence of the tortious agreement upon which their action is based, but rely solely on the inferences that may be drawn from other pleaded facts. The question is whether the alleged agreement could be inferred from the pleaded facts on which they rely.

Consideration

All defendants

The elements of the tort of conspiracy and the matters which must be pleaded are conveniently summarised in the reasons of Ferguson J in CC Containers Pty Ltd v Lee:
Conspiracy may take one of two forms:
(1)an 'unlawful means' conspiracy in which the participants combine together to perform acts which are themselves unlawful; and
(2)a combination to perform acts which, although not themselves unlawful, are done with the sole or predominant purpose of injuring the claimant.
The learned authors of Bullen & Leake & Jacob's Precedents of Pleadings identify the necessary elements that must be pleaded where the tort of conspiracy is alleged:
(a)a combination or agreement between two or more individuals (required for both types of conspiracy);
(b)an intent to injure (required for both types of conspiracy but must be shown as the sole or predominant purpose for type (2) above);
(c)pursuant to which combination or agreement and with that intention certain acts were carried out;
(d)resulting loss and damage to the claimant.[61]
A conspiracy can be proved without evidence of an express agreement:
A court is entitled to have regard to the overt acts pleaded, and to infer from those acts that there was an agreement to further the common object of the combination. All of those said to be parties to the conspiracy should be sufficiently aware of the surrounding circumstances, and share the same object, for it properly to be said that they are acting in concert.[62]
An intention to injure is an important part of establishing the tort of conspiracy. In this regard, a conspiracy to injure a person is distinguishable from an agreement to do an unlawful act that results in damage to that person.[63]
[61] Bullen & Leake & Jacob's Precedents of Pleadings, vol 2, (16th ed), Sweet & Maxwell Ltd, London 2008 855 [51-02].
[62] Dresna Pty Ltd v Misu Nominees Pty Ltd [2003] FCA 1537 [103].
[63] CC Containers Pty Ltd v Lee [2011] VSC 537 [11] ‑ [14].
The plaintiffs do not plead material facts which would directly prove the agreement pleaded in [19] of the statement of claim. It is open for the plaintiffs to plead and prove the agreement between the defendants from the acts later done in furtherance of it. A court may infer an express agreement from the overt acts pleaded. As the court said in Chong v CC Containers Pty Ltd:
As conspirators will ordinarily conceal their unlawful agreement, it will often be the case that there is no direct evidence of the combination. The conspiracy may be proved without direct evidence of an express agreement or understanding as to the common design. It is generally a matter of inference deduced from certain acts of the parties done in pursuance of the apparent purpose in common between them. The overt acts done in furtherance of the combination may support the inference that there was such an agreement or understanding to further the common unlawful object of the combination. Separate acts of co-conspirators may be relied upon which have such a concurrence of time, character, direction and result as naturally leads to the inference that these separate acts were the outcome of pre-concert or some mutual contemporaneous engagement evidencing the common object of the combination. A mere co-incidence of separate acts however, which by their conjoined effect cause damage, will not suffice. The evidence must be such as to permit it to be inferred that the acts were undertaken in pursuit of the common object so that it may be said that the actors acted in concert towards the common end.[64]
[64] Chong v CC Containers Pty Ltd [2015] VSCA 137; (2015) 49 VR 402 [133].
The phrase 'concurrence of time, character, direction and result' is from the decision of Isaacs J in R v Associated Northern Collieries.[65] It is not to be construed like a statutory text. But it assists in pointing to factors that would permit an inference of a contemporaneous or antecedent agreement to be drawn.
[65] R v Associated Northern Collieries (1911) 14 CLR 387, 400.
The Court of Appeal in Chong v CC Containers also set out further matters relevant to the proof of conspiracy. It is not necessary for the plaintiffs to establish that all defendants were parties to the alleged agreement at the same time. A conspirator may join a conspiracy after its inception and leave the conspiracy before it is concluded. And parties may, by law, be parties to a common agreement even if they have not met or corresponded, 'provided there is proof of acts on both sides which may lead a jury to infer that they were engaged in accomplishing the same common object'.[66]
[66] Ex parte Coffey; Re Evans [1971] 1 NSWLR 434, 446. And see Chong v CC Containers Pty Ltd [147].
In written submissions filed in response to the applications for summary judgment, the plaintiffs confirmed that they are not able to give direct evidence of the facts supporting elements of the claims and rely on inferential reasoning.[67] They expressly rely upon the inferences that can be drawn from the matters pleaded in paragraphs 19.4 to 19.9, 21, 29, 33, 37, 39 to 42, 45 to 49, 56, 57, 59 to 67, and 72 to 74 of the statement of claim.[68]
[67] Plaintiffs' written submissions in opposition to the sixth defendant [16]. The plaintiffs repeat this claim in their responsive submissions to the other defendants.
[68] Statement of claim [19.3].

In a frequently cited passage in Palmer v Dolman, Ipp JA said:
Certain principles have become well-established in determining, in a civil case, whether circumstantial evidence leads to an inference of fraud. The following are presently pertinent:
(a)The jury must consider 'the weight which is to be given to the united force of all the circumstances put together'.
(b)The onus of proof is only to be applied at the final stage of the reasoning process: '[i]t is erroneous to divide the process into stages and, at each stage, apply some particular standard of proof. To do so destroys the integrity of [a] circumstantial case'.
(c)The inference drawn from the proved facts must be weighed against realistic possibilities as distinct from possibilities that might be regarded as fanciful.
(d)Where the competing possibilities are of equal likelihood, or the choice between them can only be resolved by conjecture, the allegation is not proved.[69]
[69] Palmer v Dolman [2005] NSWCA 361, [41] (authorities omitted).
The question at trial would be whether the inferences for which the plaintiffs contend should be drawn, having regard to the need for clear proof of such serious allegations. On the application for summary judgment, the question is whether the facts pleaded are capable of sustaining the conclusion that the defendants agreed to act in concert and that they had the intent to injure the plaintiffs. Even on a summary judgment application, it is not irrelevant to consider whether the inferences for which the plaintiffs contend are realistic, and not merely speculative or fanciful.
In considering the matters on which the plaintiffs rely, and what inferences can be drawn from them, it is necessary to set to one side the allegations in paragraphs 37.1, 40.1, 45.2, 49.1, 57.2, 61.1, 64.1, and 67.1, that the conduct was pursuant to and in furtherance of the Common Design. The plaintiffs rely on those matters to prove the Common Design and cannot rely on circular reasoning to establish its existence.[70]

Mr Amaranti and the Authority

[70] See, for example, Weston v Publishing and Broadcasting Ltd [2011] NSWSC 433.

The plaintiffs plead that Mr Amaranti 'received the communication' referred to in [14] of the statement of claim from Mr Goodchild and communicated those matters to Mr Duffield. They plead that, as the agent of the Authority, he agreed to combine in the Common Design.
The plaintiffs also allege that, on behalf of the Authority, Mr Amaranti had various disputes with the plaintiffs concerning their lease, and, in about November 2011, Mr Lee had complained about him to the Minister with responsibility for Rottnest Island. The plaintiffs plead that the disputes were related to matters between 2005 and 2009.
The plaintiffs also plead that in October 2015 - three years after the alleged agreement - they commenced proceedings against the Authority, the State of Western Australia, Mr Amaranti, and Colin Brandis (an employee of the Authority).[71] There is no rational basis on which that fact could be material to the alleged agreement.
[71] Statement of claim [19.7].
The plaintiffs have not challenged, or adduced evidence to contradict, the affidavit of Mr Duffield in which he denied that Mr Amaranti was the source of his information about the closure of the Café.
Even if the court were to accept all of the facts alleged to found the conspiracy, including the facts pleaded in [14] and [15] of the statement of claim, the inference that Mr Amaranti was party to the agreement could not be drawn.
The plaintiffs do not allege that Mr Amaranti did anything - none of the conduct on which the plaintiffs rely is attributed to Mr Amaranti, either alone or in concert with any other defendant. The plaintiffs do not allege that Mr Amaranti knew or ought to have known of anything that any of the other alleged conspirators did.
The plaintiffs rely on the line of authority regarding a plaintiff's application for summary judgment, where the court might refuse an application on the grounds that 'there ought for some other reason to be a trial of the claim'.[72] Those authorities do not avail them in a defendants' application for summary judgment, where the plaintiffs are confined to their pleading and cannot, as the plaintiffs here seek to do, rely on the possibility that material facts other than those they have pleaded might be elicited through discovery, interrogation and cross examination.
[72] See O 14, r 3(1); Wedge v Service Finance Corp Ltd [2002] WASCA 54 [30], citing Miles v Bull [1969] 1 QB 258, 365 - 266.
The only route to liability alleged against the Authority is that Mr Amaranti, as its agent, agreed to combine with the other defendants. The failure of the case against Mr Amaranti is fatal to the claim against the Authority. It is not necessary to consider the further argument that the plaintiffs could not, on the facts pleaded, prove that Mr Amaranti acted as the agent of the Authority.

Mr Duffield, Sullivan Commercial and Mr Rutherford

These defendants were represented by the same solicitors and counsel. The submissions were largely directed to the argument that a central pillar of the plaintiffs' case in relation to the common design of the defendants was the protection of Mr Amaranti and the Department from being sued for defamation. The defendants submitted that any defamation action against Mr Amaranti or the Department was doomed to fail because the alleged Early Closure Statement was, as Kenneth Martin J found, not defamatory. There was nothing to protect Mr Amaranti or the Department from.
That submission, in my opinion, misses the point. The defendants might still have combined to protect Mr Amaranti from the risk of proceedings, even if those proceedings, ultimately, were found to lack merit.
Nor, in my opinion, is it relevant that the plaintiffs would have incurred legal expenses and costs if they had sued Mr Amaranti and the Department, rather than Mr Rutherford and Sullivan Commercial. Their case is that they commenced proceedings, based on the representations as to who had provided the information to Mr Duffield, and suffered loss as a result.
I am satisfied, however, that the defendants have shown that the action against them should not proceed. The plaintiffs rely on the allegation that the statements by or on behalf of Mr Duffield in the three Early Closure Representations, the admissions in the defence of Mr Rutherford, and the evidence each gave in the defamation actions, were false or incorrect, and were made knowing they were false or reckless as to the truth.[73] The proof that those statements and that evidence were false is essential to the plaintiffs' case.
[73] Statement of claim [37], [40.2], [49.2], [61.2] and [64.2].
Mr Duffield and Mr Rutherford have given evidence on affidavit confirming the truth of the Early Closure Representations, the statements made in Mr Rutherford's defence, and their evidence at trial. The plaintiffs do not contend that there is evidence directly establishing falsity or recklessness as to truth, or that the evidence of Mr Duffield and Mr Rutherford in their affidavits in this action is false.
The plaintiffs contend that an inferential case should not be found to be un-triable simply because it is countered by positive evidence. That may be accepted as a general statement. But it is not an answer in this case if the conclusion for which the plaintiffs contend could not be inferred from the pleaded facts.
The plaintiffs cannot rely on the circular reasoning that the statements and evidence of Mr Duffield and Mr Rutherford were false and were made in carrying out the Common Design, to prove that they were false and to prove the Common Design. Accordingly, to establish that essential element of the tortious agreement, the plaintiffs must rely on the other facts said to support the inference of the agreement, that is:
(1)the plaintiffs' various disputes with Mr Amaranti between 2006 and 2009;
(2)Abellio's financial difficulties during the financial years ending 30 June 2012, 2013 and 2014;
(3)Mr Duffield's claimed appearance as 'Peter Smith' for Abellio in the Fremantle Magistrates Court on 4 February 2014 and 4 March 2014;
(4)the failure by the Department of Health to take any steps to recover the fine imposed on Abellio;
(5)the evidence of Ms Delsar in the Magistrates Court;
(6)the plaintiffs' later proceedings against the Authority, the State of Western Australia, Mr Amaranti and another employee of the Authority;
(7)the statement by the Department of Health in the FOI application brough by Mr Lee.
Two things are immediately apparent. First, apart from the claimed appearance by Mr Duffield for Abellio in the Magistrates Court, none of the conduct relied on is conduct attributable to Mr Duffield or Mr Rutherford, or conduct which the plaintiffs allege either defendant was aware of. Second, none of the facts are rationally probative of the truth or falsity of the 'representations' made by Mr Duffiled, or the evidence given by either defendant in the defamation trial.
The allegations made by the plaintiffs do not rise above conjecture and speculation. The plaintiffs have neither adduced evidence on affidavit to counter the defendants' evidence, nor have they pleaded facts from which the court could make the finding they seek.
I am satisfied that the action is properly characterised a frivolous and vexatious and an abuse of process.

The application to strike out

Because I would grant the applications for summary judgment, I need not determine the defendant's application to strike out the statement of claim.

Conclusion

Judgment should be entered for the first, second, third, fifth and sixth defendants.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Associate to the Honourable Justice Allanson

25 AUGUST 2021

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: KINGSFIELD HOLDINGS PTY LTD -v- SULLIVAN COMMERCIAL PTY LTD [2021] WASC 289 (S)
CORAM:   ALLANSON J
HEARD:   ON THE PAPERS
DELIVERED          :   2 SEPTEMBER 2021
PUBLISHED           :   2 SEPTEMBER 2021
FILE NO/S:   CIV 2270 of 2020
BETWEEN:   KINGSFIELD HOLDINGS PTY LTD
First Plaintiff
JEFFREY STEWART LEE
Second Plaintiff
AND
SULLIVAN COMMERCIAL PTY LTD
First Defendant
PETER ANDREW DUFFIELD
Second Defendant
IVAN NEWBY RUTHERFORD
Third Defendant
DAVID JOHN HENDERSON
Fourth Defendant
PAOLO FILIPPO AMARANTI
Fifth Defendant
ROTTNEST ISLAND AUTHORITY
Sixth Defendant
DEPARTMENT OF HEALTH
Seventh Defendant

Catchwords:

Practice and procedure - Costs following summary judgment - Whether plaintiffs commenced and persisted in hopeless case - Whether indemnity costs to be awarded - Turns on own facts

Legislation:

Nil

Result:

Indemnity costs awarded to the first, second, third, fifth and sixth defendants

Category: B

Representation:

Counsel:

First Plaintiff	:	No appearance
Second Plaintiff	:	No appearance
First Defendant	:	No appearance
Second Defendant	:	No appearance
Third Defendant	:	No appearance
Fourth Defendant	:	No appearance
Fifth Defendant	:	No appearance
Sixth Defendant	:	No appearance
Seventh Defendant	:	No appearance

Solicitors:

First Plaintiff	:	Michael Paterson & Associates
Second Plaintiff	:	Michael Paterson & Associates
First Defendant	:	Lawton Gillon
Second Defendant	:	Lawton Gillon
Third Defendant	:	Lawton Gillon
Fourth Defendant	:	No appearance
Fifth Defendant	:	Mills Oakley
Sixth Defendant	:	State Solicitor's Office
Seventh Defendant	:	No appearance

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

Ben-Pelech v Royle [2020] WASCA 168 (S)
Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S)
Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S)
Yara Australia Pty Ltd v Oswal [2012] WASCA 264

ALLANSON J:

On 25 August 2021, I granted the applications by the first, second, third, fifth and sixth defendants for summary judgment. Each defendant applied for indemnity costs and made short oral submissions. The plaintiffs were given leave to respond in writing and filed their submissions on 1 September 2021.
The principles relevant to the grant of costs on an indemnity basis are well established and were outlined in Swansdale Pty Ltd v Whitcrest Pty Ltd, Yara Australia Pty Ltd v Oswal and Huntingdale Village Pty Ltd v Korda.[74]
[74] Swansdale Pty Ltd v Whitcrest Pty Ltd [2010] WASCA 129 (S) [10]. YaraAustralia Pty Ltd v Oswal [2012] WASCA 264 [33]. Huntingdale Village Pty Ltd v Korda [2015] WASCA 101 (S) [11] - [17].
Most recently, in Ben-Pelech v Royle, the Court of Appeal confirmed that it is sufficient to enliven the discretion to award indemnity costs that, for whatever reason, a party persists in what should, on a proper consideration, have been seen to be a hopeless case. Their Honours said:
Relevantly, while the categories of cases in which an indemnity costs order may be made are not closed, one category where indemnity costs are appropriate is where the action has been commenced or continued in circumstances where the applicant, properly advised, should have known that it had no chance of success. Whether that is so is determined objectively ‑ it does not direct attention to the actual legal advice given to the party. The court should not be too quick to characterise a case as hopeless ‑ parties should not be discouraged from persisting in an action merely because success is uncertain. Whether a case was hopeless must be judged without the benefit of hindsight. [75]
[75] Ben-Pelech v Royle [2020] WASCA 168 (S) [7].
On the findings I have made in awarding summary judgment to the defendants, this case had no prospect of success and, on proper consideration, should have been seen to be hopeless at the outset. The plaintiffs alleged a conspiracy, in the furtherance of which the defendants combined to give false testimony, so as to commit a fraud upon the court. The foundation for such serious allegations was not merely flimsy but logically incapable of supporting them. The second plaintiff (and director of the first plaintiff) is himself a legal practitioner. The plaintiffs were represented by solicitors and counsel. In drafting and settling the statement of claim, someone should have appreciated that the case could not be sustained.
The affidavits filed by the defendants show clearly that the plaintiffs were on notice that indemnity costs would be sought. The threat of an application for indemnity costs should not be a forensic tactic to which parties readily resort. But there are cases where such a warning is properly given. This is one.
In their submissions on costs, the plaintiffs argue that any order for indemnity costs should date only from the letters warning they would be sought. The plaintiffs refer to the comments of the court in Ben-Pelech v Royle that a letter of warning may support a conclusion that proceedings were continued in full knowledge of the risks of doing so.[76] Those comments did not limit the court's earlier statement that indemnity costs are appropriate where the action has been commenced or continued in circumstances where the applicant, properly advised, should have known that it had no chance of success. In my opinion, the plaintiffs should have known from the commencement of this action that it was without substance. The plaintiffs did not then have the denials on oath in the affidavits that were later filed by each of Mr Rutherford and Mr Duffield. But they did have their evidence, on oath, in the defamation proceedings. Objectively, they should have appreciated their inferential case to counter that evidence was hopeless.
[76] Ben-Pelech v Royle [9].
The plaintiffs also submitted that I did not accept all arguments presented on behalf of the defendants, including those based on the findings made in the defamation proceedings. In fact, I found the defects in the plaintiffs' case to be more fundamental than that. The failure of some arguments does not alter my conclusion.
The proper form of the orders is:
The plaintiffs pay the first, second, third, fifth and sixth defendants' costs of the action, including the costs reserved on 22July 2021, and such costs are to include all costs except in so far as they are of an unreasonable amount or have been unreasonably incurred so that, subject to the above exceptions, the defendants will be completely indemnified by the plaintiffs for their costs.
The amount of such costs be taxed if not agreed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

MG
Associate to the Honourable Justice Allanson

2 SEPTEMBER 2021