Leighton v Garnham [No 3]
[2014] WASC 35
•07/02/2014
LEIGHTON -v- GARNHAM [No 3] [2014] WASC 35
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 35 | |
| 07/02/2014 | |||
| Case No: | CIV:1590/2012 | 8 NOVEMBER 2013 | |
| Coram: | LE MIERE J | 8/11/13 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Application granted Leave to re-plead granted | ||
| B | |||
| PDF Version |
| Parties: | ROSS WILLIAM LEIGHTON CLIVE GARNHAM ROBERT JOHN VLETTER JANE CHRISTINE GENOVESE |
Catchwords: | Practice and procedure Application to strike out defence in part Polly Peck imputation |
Legislation: | Nil |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
CLIVE GARNHAM
First Defendant
ROBERT JOHN VLETTER
Second Defendant
JANE CHRISTINE GENOVESE
Third Defendant
Catchwords:
Practice and procedure - Application to strike out defence in part - Polly Peck imputation
Legislation:
Nil
Result:
Application granted
Leave to re-plead granted
Category: B
Representation:
Counsel:
Plaintiff : Mr M L Bennett
First Defendant : Mr R W Richardson
Second Defendant : Mr R W Richardson
Third Defendant : No appearance
Solicitors:
Plaintiff : Bennett & Co
First Defendant : Hardy Bowen
Second Defendant : Hardy Bowen
Third Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
1 LE MIERE J: (This is an edited version of the reasons delivered ex tempore on 8 November 2013).
2 The plaintiff has applied to strike out [18A] and [18AB] of the first and second defendants' re-amended defence filed on 20 August 2013 and the particulars subjoined to those paragraphs. For convenience, I will refer to the first and second defendants as the defendants and their re-amended defence filed on 20 August 2013 as the defence.
3 After the plaintiff had filed written submissions but before the hearing of the plaintiff’s application, the defendants conceded the plaintiff’s objection to [18A] of the defence and stated their intention to amend the defence to delete that paragraph. It is not necessary to say anything further about that paragraph except in relation to costs which I will address later.
4 Paragraph 18AB of the defence pleads a Polly Peck imputation. A defendant may plead and seek to justify an alternative meaning from that pleaded by the plaintiff provided that the alternative meaning is a nuance of, or variant not substantially different from or more injurious than, the meaning pleaded by the plaintiff.
5 The plaintiff says that the imputation should be struck out because the meaning pleaded by the defendants is not different from, or is too similar to, the meaning pleaded by the plaintiff. The imputation pleaded by the plaintiff is that the plaintiff deceived Kalamunda Shire residents about the development. The imputation pleaded by the defendants is that the plaintiff knowingly misinformed residents of the shire and those people dealing with the proposal about the proposal to rezone his land in Wattle Grove.
6 In essence, the defendants' imputation is that the plaintiff knowingly misinformed the residents and others about the development. The defendants say that the difference between the imputations can be seen from what must be proved to justify each of the imputations. To prove the plaintiff's imputation, the defendants would have to prove that residents of the Shire were actually deceived. To prove the defendants' imputation, it would only be necessary to prove that the plaintiff caused information to be conveyed to the residents, that information was false or misleading and the plaintiff knew that the information was false or misleading. In other words, it would not be necessary to establish that people were actually deceived by the information conveyed.
7 To knowingly misinform is not the same thing as to deceive. There are two main differences between having deceived someone and having knowingly misinformed someone. First, unlike knowingly misinforming, deception involves or implies success. An act must actually cause someone to have false beliefs in order to count as a case of deception. I take that to be the meaning of deception not because it was stated by Buckley J in 1903, but because I take that to be the contemporary meaning of deception. On the other hand, intentional false information or inaccurate information need not succeed in deceiving others in order to count as knowingly misinforming. The second difference is that knowing misinformation must be false or inaccurate information, whereas deception need not involve providing false or inaccurate information. True statements can be deceptive and many forms of deception do not involve providing information at all. I find that the imputation pleaded by the defendants is different from or sufficiently different from that pleaded by the plaintiff.
8 The plaintiff next objects to the particulars to [18AB] of the defence on two bases. First, the plaintiff says that the particulars only relate to one aspect of the third article, sewerage. The plaintiff says it is not enough for the defendants’ particulars to seek to justify only 10 per cent of the article. I do not accept that objection to the pleading. It is the pleaded imputation which has to be justified. The defendant is entitled to prove the truth of the imputation at the same level of generality as it is pleaded. The plaintiff is responsible for the way in which he has pleaded the imputation, and if he has pleaded in general terms, the defendant is entitled to take advantage of that pleading and in effect to meet him on his own battleground.
9 The second basis on which the plaintiff challenges the pleading is that the particulars are not capable of justifying the imputation pleaded by the defendant. The plaintiff says that to knowingly misinform imports a positive act. I agree. In order to knowingly misinform someone a person must give them false or inaccurate information. It is, therefore, necessary to consider whether the particulars to [18AB] are capable of proving that the plaintiff knowingly gave the shire residents and others, or arguably caused them to be given, information that was false or inaccurate. Of course whether or not the particulars do establish that imputation is a matter for trial. The question at this stage is whether they are capable of it.
10 In my view, the particulars, if proved, are not capable of establishing that the plaintiff knowingly misinformed shire residents or the public or the other persons referred to concerning matters in the report. The pleaded imputation is that the plaintiff knowingly misinformed the residents and others. Counsel for the defendant submitted that there are two aspects in which the report was false or incorrect. The first aspect concerns the matters in particulars 18A (1.5) and (1.6), which in essence concern matters of which the plaintiff became aware after the report had been submitted to the shire. The second matter is said to be the matters in pars 18A (1.3) and (1.4) and it is said that they are falsified by reason of the matters in 18A (1.7). In my view, it is arguable that the matters said to falsify the parts of the report referred to in 18A (1.3) and (1.4) are not sufficiently set out in the particulars.
11 However, it is not necessary for me to determine that matter today because I have come to the view that the imputation is not made out by the particulars for a separate reason. The imputation is that the plaintiff knowingly misinformed amongst others, the residents of the shire. The information which is said to be false or incorrect which was conveyed to the residents is that contained within the Webb report. The particulars say that the plaintiff delivered or caused to be delivered, or his agent delivered the report to the shire. The particulars do not say that at the time the plaintiff delivered the report to the shire he authorised, instructed, intended or knew that the report would be conveyed or made available by the shire to the public. The particulars, as they are currently framed, go no further than saying that the plaintiff delivered or caused to be delivered the report to the shire in May 2009 and in November 2009 the shire placed an advertisement in a newspaper advising that plans and documents relating to the amendment are available for viewing at the shire and, secondly, that the plaintiff was aware that the Webb report was being made available for public inspection by the shire from 31 October 2009 until 8 December 2009.
12 In my view, if the plaintiff delivered, or gave, information to the shire and, at a subsequent time, the shire provided the information to the public and at the time the shire made the information available to the public, the plaintiff knew that was happening, that does not amount to the plaintiff informing the public of the matters in the report.
13 A further difficulty with the pleading concerns the falsity or inaccuracy of the report. Insofar as the falsity or inaccuracy is said to lie in matters which the plaintiff learned after he had provided the report to the shire, the particulars appear to say that the shire also knew of the falsity or inaccuracy of that material.
14 The second basis upon which the defendants say that the report was false or inaccurate is, as I have said, by reason of the matters set out in particulars 18A (1.3), (1.4) and (1.7). In my view, those particulars are not adequate to demonstrate the falsity or inaccuracy. Counsel for the defendant submits that all the defendants are required to do is to plead the facts and at trial they may rely upon any inferences which are properly to be drawn from the facts. In my view, if the defendants, seek to rely upon inferences from what is said in 18A (1.7) to falsify what is said in 18A (1.3) and (1.4), then that needs to be set out or else the plaintiff is going to be taken by surprise and indeed the court will not appreciate the case that is to be made.
15 Counsel for the defendants submitted that that, in effect, is an embarrassment argument and that was not raised by the application. It is not necessary that I determine that matter because, as I have said, in my view, the particulars are inadequate by reason of the lack of connection in the current particulars between the plaintiff providing the report to the shire and the report being made available to the public. For those reasons, I find the particulars to not support the imputation pleaded in 18AB and it should be struck out. It is common ground that there should be leave to re-plead and, in any event, I would give leave to re-plead.
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