Major v Woodside Energy Ltd [No 2] - [2009] WASC 45

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 2] [2009] WASC 45

CORAM: NEWNES J

HEARD: 28 JANUARY 2009

DELIVERED : 27 FEBRUARY 2009

FILE NO/S: CIV 1186 of 2007

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD (ACN 005 482 986)
Defendant

Catchwords:

Defamation - Application to strike out parts of statement of claim - Application 20 months out of time - Whether extension of time to bring application should be granted - Relevant principles - Turns on own facts

Legislation:

Nil

Result:

Application for extension of time refused
Application to strike out statement of claim dismissed

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Mr T D Blackburn SC & Ms C Galati

Solicitors:

Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace

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

Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135
Gardiner v Ray [1999] WASC 140
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] 33 WAR 1

NEWNES J: I have before me an application by the defendant to strike out a number of the defamatory imputations pleaded in the plaintiff's statement of claim. The plaintiff (who is represented by Sydney solicitors) did not appear by counsel on the application on the ground that he could not afford to do so. I heard oral submissions on behalf of the defendant and a copy of the transcript of the hearing was then sent by the court to the plaintiff's solicitors in Sydney and they were invited to provide written submissions in response. Those submissions were received on 4 February 2009. The defendant had seven days in which to file any submissions in reply. As it turned out, the defendant considered that no submissions in reply were necessary.
The application to strike out parts of the statement of claim is well out of time. The statement of claim was filed on 8 March 2007 and served on the same day. Pursuant to O 20 r 19(3)(a) of the Rules of the Supreme Court 1971 (WA), any application to strike out the statement of claim had to be made within 21 days of service of the statement of claim (not later than 29 March 2007). The current application was filed on 27 November 2008. It is, therefore, some 20 months out of time.
The defendant seeks an extension of time within which to bring the application. Before turning to the grounds relied upon for that extension, it is appropriate to describe the progress of the action to date.
The action was commenced on 23 February 2007 and the statement of claim was filed on 8 March 2007. The defence was filed on 18 April 2007. The plaintiff sought particulars of the defence on 30 April 2007 and those particulars were provided by the defendant on 29 May 2007. Further particulars of the defence were sought and provided during June and July 2007. On 8 August 2007 the plaintiff served his reply.
The plaintiff's discovery was filed on 17 September 2007 and the defendant's discovery on 20 September 2007. Subsequently, disputes arose as to the adequacy of the discovery on both sides, matters that were not finally resolved until August 2008.
In the meantime, on 31 July 2008, the plaintiff was granted leave to administer interrogatories and, on 15 August 2008, the defendant filed its answers to the plaintiff's interrogatories.
In the ordinary course, the action would have gone to mediation but by mid September 2008 (at the latest) it appeared that the prospect of mediation had irretrievably foundered on a dispute as to the payment of the plaintiff's costs of attending a mediation in Perth, the plaintiff now residing and working in Dubai.
In light of that, on 18 September 2008 the plaintiff was ordered to enter the action for trial not earlier than 26 September 2008. In that period the defendant had time to consider whether there were any further interlocutory steps it wished to take before the action was entered for trial. The plaintiff served the entry for trial and associated papers on the defendant on 10 October 2008.
Following the entry for trial, the action was set down for a listing conference on 14 November 2008 before Le Miere J to fix the dates for the trial. As it turned out, no trial dates were fixed at the listing conference, due at least in part to the widely differing estimates of the length of the trial provided by the parties. That problem has continued to hamper the fixing of a trial date.
In the meantime, on 13 November 2008 - the day before the listing conference - the defendant's solicitors wrote to the plaintiff's solicitors raising objections to a number of the imputations pleaded in the statement of claim. The plaintiff's solicitors responded saying that any application for leave to strike out the statement of claim would be opposed. By a subsequent letter dated 20 November 2008, the plaintiff's solicitors informed the defendant's solicitors that the plaintiff did not accept the defendant's objections to the pleaded imputations.
On 27 November 2008, the current application was brought by the defendant.
On 16 December 2008, the plaintiff sent a proposed amended statement of claim to the defendant's solicitors. The effect of the proposed amendments was to delete the imputations which were the subject of the defendant's application and to substitute new ones. In a covering letter, the plaintiff's solicitors reiterated the plaintiff's position that the defendant's application was much too late and should be dismissed. The plaintiff's solicitors went on, however, to say that in order to avoid a contested application the plaintiff would agree to the deletion of all of the imputations to which objection had been taken, subject to being granted leave to amend the statement of claim to plead some further imputations. A copy of a proposed amended statement of claim was enclosed.
The defendant's solicitors responded on 19 December 2008, objecting to all of the proposed new imputations. The question of the proposed amendments to the statement of claim does not appear to have advanced beyond that point and I understand that the plaintiff abandoned the proposed amendments.
In support of the extension of time, an affidavit has been filed by a Ms Di Lena, a solicitor acting on behalf of the defendant. In the affidavit, sworn on 23 January 2009, Ms Di Lena says that at the time the action was commenced the defendant intended to take it through the pre‑trial steps to mediation with a view to resolving the action if that were possible. The defendant did not consider the merits of, or embark on, an interlocutory attack on the statement of claim because it took the view that pursuing such a course might appear to the plaintiff to be obstructive and might make the matter harder to settle at mediation.
Ms Di Lena says that after the mediation process had foundered, the defendant instructed its solicitors to brief senior counsel experienced in defamation matters. Mr Blackburn SC, who appeared for the defendant on this application, accepted instructions on 23 September 2008.
The defendant contends that if the pleading remains in its current form the length of the trial will be unnecessarily prolonged and false issues could be raised at the trial. If the objections raised in the application are left to the first day of trial and some or all of them are successful, there is every chance the defendant will be met with an application by the plaintiff to adjourn the trial to allow the plaintiff to re‑plead the imputations concerned.
The plaintiff submits that the objections to the pleading have not been made out. He also says that the application is hopelessly out of time and a tactic designed to cause delay and to subject him to as much financial pressure as possible so as to deprive him of the ability to take the action to trial or at least to be properly represented at the trial.
An affidavit of the plaintiff's solicitor, Mr Goldsmith, has been filed in opposition to the application. In that affidavit, Mr Goldsmith says (among other things) that since the end of March 2007 he has proceeded with the preparation of the case on the basis that there was no challenge to the pleaded imputations and the plaintiff has acted upon the same assumption. Mr Goldsmith says that since March 2007 the plaintiff has incurred costs and disbursements in the sum of approximately $146,000.
I have already pointed out that the application, which should have been brought within 21 days of service of the statement of claim, is some 20 months out of time. The objections which are the subject of this application were first raised with the plaintiff's solicitors some two months after the impasse had been reached on the question of mediation, and the day before the listing conference at which it was intended that a trial date would be fixed.
In those circumstances, the defendant starts with a substantial job ahead of it in making out a case for an extension of time.
As Steytler J pointed out in Gardiner v Ray [1999] WASC 140:
Applications to strike out pleadings … are always productive of delay and expense, sometimes substantially so, and often produce no sufficient countervailing benefit, particularly when they are brought at a late stage of the proceedings. It was because of considerations of this kind that the time limit fixed by O 20 r 19 was introduced … The purpose underlying that time limit is that of ensuring that, if an application of this kind is brought, it should be brought promptly so that it might at once be disposed of and the action continued without further interruption. The time limit is one to which more than lip service should be paid. Those who wish to bring an application of this kind, whether in defamation proceedings or otherwise, should consider, within the period fixed for that purpose, what benefit will be derived by bringing the application and then weigh against that the inevitable consequences of delay and expense. If the benefit is outweighed by the delay or expense, or both, the application should not be brought. If the converse is true, the application should be filed promptly. [33]
However, the question of whether an extension of time should be granted to bring an application of this nature cannot be entirely divorced from the merits of the application. An extension of time for the making of an application to strike out a pleading may be justified if it can be established that the interests of justice require that extension because of, for example, irreparable prejudice to the applicant or prejudice to the trial process or to the efficient utilisation of the resources of the parties and the court. That prejudice might be established, for example, by showing that the disputed pleading would unnecessarily protract either the time to be taken in preparation for trial or the conduct of the trial itself by reason of the inclusion of an allegation which had no reasonable prospects of success: YouldenEnterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2006] 33 WAR 1 [19].
For present purposes, the defendant's objections can be dealt with quite shortly.
The defendant objects to the imputations pleaded in pars 5A, 9A, 13A, and in pars 5D, 9D and 13D of the statement of claim on the ground that in each case the imputation is not capable of being conveyed by the words complained of. That, however, is a matter which can be dealt with at the trial of the action and I am not persuaded there will be any substantial prejudice to the defendant if it is left to the trial. Any prejudice that the defendant may suffer is not of such a nature as would warrant allowing the application to be brought at this stage of the action.
The defendant objects to the imputations pleaded in pars 5E, 9E and 13E on the basis that in each case the imputation is not defamatory of the plaintiff. Again, that is a matter which can be dealt with at the trial. I do not consider that if it is left to be dealt with it at trial there will be any substantial prejudice to the defendant and certainly not prejudice of such a nature as would warrant allowing the application to be brought now.
The defendant contends that the imputations pleaded in pars 5F, 9F and 13F are in each case imprecise and embarrassing to plead to. (I should note that the defendant pleaded to them some time ago.) The particular words in the imputations that are said to give rise to the embarrassing imprecision are in fact taken directly from the words complained of. That, of course, is not decisive.
It is the case, as submitted by senior counsel for the defendant, that an imputation must specify the defamatory meaning which the plaintiff alleges was conveyed by the matter complained of and it is not sufficient merely to repeat the words of the matter complained of if doing so does not make clear the defamatory sting for which the plaintiff contends.
On the other hand, as Gleeson CJ pointed in Drummoyne Municipal Council v Australian Broadcasting Corporation (1990) 21 NSWLR 135:
The requirement that a plaintiff must 'specify' the act or condition which he claims was attributed to him, … is one which, in its practical application, raises questions of degree … whilst the principles relevant to the plaintiff's obligation [to 'specify' the act or condition which he claims was attributed to him] remain constant their practical application may depend upon the facts and circumstances of the given case, and the relevant circumstances may include the manner in which the defendant, or the author of the defamatory matter, has expressed the defamatory matter ...
'The issue which has to be decided in the particular case is whether there is likely to be confusion either at the pleading stage or at trial in relation to the meaning for which the plaintiff contends': Whelan v John Fairfax & Sons Ltd (1988) 12 NSWLR 148, 155. (137 ‑ 138)
In the present case, particularly having regard to the terms of the matter complained of, I am not persuaded that the imputations are embarrassing or that they are likely to give rise to confusion at the trial.
In any event, I am not persuaded that the extent of any prejudice the defendant might suffer by reason of the form of the imputations would justify permitting a strike out application to be brought at this late stage of the action.
A similar complaint is made by the defendant in respect of the imputations pleaded in pars 9H and 13H of the statement of claim. Once again, the specific words in the imputations which are said to give rise to the imprecision are taken from the words complained of. In this instance, the meaning which the plaintiff contends were conveyed by the words complained of could have been more precisely and clearly expressed. But, again, I do not consider that any prejudice the defendant might suffer is such as to justify entertaining a strike out application at this late stage.
It follows that I do not consider that the defendant has made out a case for an extension of time. I do not consider that the defendant will suffer irreparable prejudice if it is unable to bring the strike out application. Nor is it likely that the preparation of the action for trial will be significantly impeded or the trial itself adversely affected if the matters about which the defendant complains are not determined now. Any prejudice to the defendant that may arise from the form of the statement of claim does not outweigh the prejudice that would be occasioned to the plaintiff, by way of delay and costs, in now opening up issues as to the form of the pleadings.
As I have already observed, the defendant made a deliberate decision not to attack the statement of claim within the time permitted by the Rules and throughout the subsequent interlocutory steps - over a period of some 20 months - it gave no notice of any objections to the pleading. And while the defendant says it wanted to avoid giving the plaintiff the impression that it was being obstructive so as to enhance the likelihood of resolving the action at mediation (an objective, I should say, that did not appear to deter it from pursuing a strongly contested interlocutory dispute over discovery), in fact no complaint was made about the statement of claim, and no notice given of any possible objections, until some two months after the prospect of mediation had been abandoned. It was not until after the action had been entered for trial and a trial date was due to be fixed that objections were raised for the first time. Having allowed the action to reach that point, the defendant will now simply have to live with its decision.
I would refuse the application for an extension of time and would dismiss the application to strike out parts of the statement of claim.