Major v Woodside Energy Ltd [No 6] - [2010] WASC 21

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: MAJOR -v- WOODSIDE ENERGY LTD [No 6] [2010] WASC 21

CORAM: LE MIERE J

HEARD: 2 FEBRUARY 2010

DELIVERED : 3 FEBRUARY 2010

FILE NO/S: CIV 1186 of 2007

MATTER :Claim for damages for defamation and for interest and costs

BETWEEN: STEVEN MAJOR
Plaintiff
AND
WOODSIDE ENERGY LTD
Defendant

Catchwords:

Practice and procedure - Pleadings - Amendment - Whether amendments are defective in form - Where application for leave to amend pleadings heard week before trial

Practice and procedure - Application for further discovery - Whether there are other relevant documents in the possession, custody or power of the defendant

Legislation:

Defamation Act 2005 (WA), s 36
Rules of the Supreme Court 1971 (WA), O 21 r 5, O 26

Result:

Plaintiff's application for leave to file and serve a re-amended statement of claim declined
Plaintiff's application for leave to file and serve a re-amended reply declined
Plaintiff's application for further discovery dismissed

Category: B

Representation:

Counsel:

Plaintiff: Mr B Goldsmith
Defendant: Mr R J Anderson

Solicitors:

Plaintiff: Goldsmiths Lawyers
Defendant: Edwards Wallace

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

AON Risk Services Aust Ltd v ANU [2009] HCA 27, (2009) 239 CLR 175; (2009) 83 ALJR 951
Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60

LE MIERE J:

Introduction

The plaintiff applies for:
1.leave to file and serve a re‑amended statement of claim;
2.leave to file and serve a re‑amended reply to the re‑amended defence; and
3.an order requiring the defendant to give discovery of particular documents.
These applications were heard on 2 February 2010 as a matter of urgency because the trial of the action is listed to commence on 8 February 2010. It is necessary to decide the applications expeditiously. Accordingly, these reasons for decision are less fulsome than if more time had been available.

Re‑amended statement of claim

The plaintiff claims aggravated damages in respect of each of the three publications complained of. The proposed amendments are to plead a further particular of aggravated damages in relation to each publication. In relation to the first publication complained of the plaintiff seeks leave to amend [7] by adding a further particular of aggravated damages:
D.To the knowledge of the plaintiff the first matter complained of was published with actual malice.
Particulars of Malice
The plaintiff refers to and relies upon the particulars set out in his amended reply to the re‑amended defence or, if leave is given, upon the particulars set out in his re-amended reply to the re‑amended defence.
The plaintiff seeks leave to amend his claim in relation to the second and third publications complained of in similar terms.

Re‑amended reply

In [4] of the existing reply the plaintiff pleads in reply to the defendant's plea of qualified privilege that the defendant was actuated by malice in the publication of the matters complained of. The plaintiff pleads that in each case the defendant's purpose was, through the relevant employees referred to, to hurt the plaintiff, damage his reputation and humiliate him in the eyes of recipients of the matters complained of, those being improper purposes. The first particular is that the matter was published by Mr Voelte when he knew of or was recklessly indifferent as to the falsity of the publication, with an intention to injure the plaintiff and as an act of personal spite. The plaintiff gives particulars of matters from which this might be inferred. The facts relied on are matters which occurred at or prior to the publication complained of.
The plaintiff now seeks to amend the reply by adding a new [5] which pleads that the plaintiff relies upon the conduct of the defendant during the course of this litigation as evidence of malice at the time of publication of the matters complained of. The plaintiff then gives particulars of conduct in [A] ‑ [E]. The plaintiff's principal allegation is set out in particular A:
The defendant has engaged in conduct intended to financially intimidate the plaintiff and exhaust his resources such that:
i.The plaintiff would not be able to bring the matter to trial; and/or
ii.He would not be able to be properly represented at it.
Particular B then identifies the conduct referred to in particular A. The conduct is said to consist of:
i.Failure by the defendant to consistently comply with the Rules of court;
ii.The defendant, on two occasions, alleging that the defamatory imputations were true and then not pressing those allegations when, to its knowledge, the allegations were unsustainable;
iii.The making by it of ill‑founded applications solely for the purpose set out in subparagraph A above.
Particular B(i) does not in its terms identify or limit the rules which it is alleged the defendant consistently failed to comply with. However, particular C is that the defendant has failed to consistently comply with the rules of court in failing to give full and proper discovery of documents and that the defendant has given discovery on seven occasions, which are then set out, when it ought properly have given discovery on one occasion. Counsel for the plaintiff confirmed that the rules which it is alleged in particular B(i) the defendant failed to comply with are those identified in particular C.
Particular D identifies the two occasions on which the defendant alleges that the defamatory imputations were true and then did not press those allegations when, to its knowledge, the allegations were unsustainable. Particular E identifies the applications made by the defendant which the plaintiff alleges in particular B(iii) to have been ill‑founded and made solely for the purpose set out in particular A, that is, to financially intimidate the plaintiff and exhaust his resources.

Amendment of the reply

Order 21 r 5(1) of the Rules of the Supreme Court 1971 (WA) provides that subject to matters not presently relevant the court may at any stage of the proceedings allow the plaintiff to amend his pleading on such terms as may be just and in such manner as the court may direct.
The defendant submits that leave to amend should be refused because the proposed pleading is defective in form and at this late stage in the proceedings the plaintiff should not be given leave to reformulate his proposed amendments. Furthermore, counsel for the defendant says that the defendant will be prejudiced if the amendments are allowed.
The proposed [5] of the re‑amended reply is defective in form for a number of reasons. The paragraph pleads that the defendant was actuated by malice at the time of publication of the matters complained of. However, the particulars plead conduct of the defendant engaged in after the publications complained of. Malice at the time of publication might be inferred from conduct occurring subsequent to publication, however, that is not the way in which the proposed pleading is formulated.
Particular B(i) is that the defendant consistently failed to comply with the rules of court. The particulars do not identify the rule or rules nor the alleged breach of the rules. In the course of oral submissions counsel for the plaintiff referred to the rules relating to discovery. Order 26 deals with discovery. However, it is not apparent which rule in O 26 is alleged to have been not complied with by the defendant nor in what manner the defendant has not complied with the rule. In the course of oral submissions counsel for the plaintiff indicated that the proposed pleading should be amended to say that the defendant consistently failed to comply with orders of the court rather than rules. Counsel said that particulars could be given of the orders. The orders are those orders by which the defendant was ordered to give discovery.
The record discloses the following orders for discovery to be given by the defendant:
1.30 August 2007 that the defendant file and serve an affidavit of discovery by 13 September 2007;
2.29 November 2007 that the defendant file a supplementary affidavit of discovery on or before 21 December 2007.
It is apparent from the plaintiff's particulars that the defendant did file an affidavit of discovery albeit on 20 September 2007 rather than by 13 September 2007 as ordered. It is also apparent that the defendant provided an informal list of discoverable documents by 21 December 2007 albeit not an affidavit of discovery as ordered. According to the plaintiff's particulars the defendant gave supplementary discovery on five further occasions. Order 26 r 2 imposes a continuing obligation to give discovery. It is not apparent from the plaintiff's particulars that the fact that the defendant gave supplementary discovery constitutes non‑compliance with the earlier order that it give discovery.
The plaintiff's proposed pleading is that the defendant's consistent failure to comply with the rules or orders of the court by not giving full and proper discovery was conduct engaged in that was intended to financially intimidate the plaintiff and exhaust his resources. The proposed pleading does not properly particularise the case which the defendant is to meet on that matter. The proposed pleading does not give particulars of the condition of mind pleaded, that is, the plaintiff's alleged intention. At this late stage that cannot be left to subsequent particulars.
The proposed pleading is not adequate or in proper form. It is not appropriate to give the plaintiff leave to amend in general terms or subject to the delivery of further particulars or modifications to the proposed pleading. The plaintiff's application was sent to the court by facsimile on Friday 29 January 2010. It was heard on Tuesday 2 February 2010. The trial is to commence on Monday 8 February 2010. That is, there are only two full working days remaining before the trial is due to commence.
Order 21 r 5 confers a discretion on the court. The discretion must be exercised having regard to the goals and objects set out in O 1 r 4A and O 1 r 4B. The overriding purpose of O 21 r 5 is to facilitate the just resolution of the real issues in the proceedings with minimum delay and expense: AON Risk Services Aust Ltd v ANU [2009] HCA 27, (2009) 239 CLR 175; (2009) 83 ALJR 951 (Gummow, Hayne, Crennan, Kiefel and Bell JJ) [90]. The real issues in the proceedings are those that are properly formulated in the existing pleadings not new issues raised in defective proposed pleadings on the eve of the trial.
If the proposed amendments were allowed the defendant would be required to meet allegations not previously raised in the pleadings. The parties have prepared a trial book and exchanged witness statements. The defendant would have little time in which to consider the allegations, investigate and put on evidence in response to them.
At this late stage of the proceedings it is incumbent on the plaintiff to explain why the matter has been allowed to proceed to trial with the pleadings in their existing form: AON Risk Services Aust Ltd v ANU (Gummow, Hayne, Crennan, Kiefel and Bell JJ) [106]. The plaintiff says that the conduct relied upon by the plaintiff has occurred throughout 2007, 2008, 2009 and is as recent as 29 January 2010. The plaintiff says that given the continuation by the defendant of the conduct, of which the plaintiff now complains, it has not been possible to provide full particulars of that conduct until this time. However, the plaintiff could have given notice of his allegations, and the particulars in support, with the exception of two matters, well before now. All of the matters relied upon by the plaintiff, with two exceptions, occurred by November 2009 or earlier. The two exceptions are that the defendant gave a supplementary list of documents by letter of 29 January 2009 and on 21 January 2010 the defendant advised that it did not intend to rely on the defence of truth.
The plaintiff says that notice has already been given to the defendant of the plaintiff's intention to seek leave to allege malice by reference to the conduct of the defendant. The plaintiff relies upon letters dated 18 and 29 December 2009 to the defendant's solicitors. On 18 December 2009 the plaintiff's solicitors wrote to the defendant's solicitors stating, amongst other things, that the plaintiff will be claiming aggravated damages amongst other things as a result of the appalling conduct of the defendant during the course of the proceedings. On 29 December 2009 the plaintiff's solicitors wrote to the defendant's solicitors stating that the plaintiff's solicitor intended to confer with senior counsel so that full particulars of the claim for aggravated damages could be formulated. The plaintiff's solicitor stated that the plaintiff would rely upon the conduct of the defendant in the proceedings then summarised. Those matters broadly reflect the matters sought to be pleaded in the amended reply. The plaintiff did not state that the plaintiff intended to rely upon those matters as evidence of malice at the time of publication. Nor did the plaintiff state that he intended to apply to amend his reply, or statement of claim, to plead those matters.
In the exercise of my discretion I decline to grant leave to amend the reply at this late stage of the proceedings.

Allegation concerning plea of justification

The particulars of the proposed pleading of malice include the allegation that the defendant alleged that the defamatory imputations were true and then did not press those allegations when, to its knowledge, the allegations were unsustainable. The defendant advised that it did not intend to rely on the defence of truth on 21 January 2010. The plaintiff could not have pleaded that matter at an earlier time. Accordingly, I will give leave to the plaintiff, if he wishes to do so, to plead in support of his allegation that the defendant was actuated by malice in the publication of the matters complained of that the malice is to be inferred from the conduct of the defendant in alleging that the defamatory imputations were true and then not pressing those allegations when, to its knowledge, the allegations were unsustainable.
I refuse leave to amend the reply in the form sought.

Amendment to statement of claim

The plaintiff seeks leave to plead as an additional particular in support of its claim for aggravated damages that, to the knowledge of the plaintiff, each of the matters complained of was published with actual malice.
Section 36 of the Defamation Act 2005 (WA) provides that in awarding damages for defamation the court is to disregard the malice or other state of mind of the defendant at the time of the publication of the defamatory matter to which the proceedings relate or any other time except to the extent that the malice or other state of mind affects the harm sustained by the plaintiff. The proposed amendment does not plead that the malice of the defendant affected the harm sustained by the plaintiff.
Furthermore, the matters alleged by the plaintiff are not capable of sustaining an award for aggravated damages. The proposed particulars do not allege improper or irregular conduct by the defendant in connection with the publication. Further, the proposed particulars relate to conduct by the defendant subsequent to the publications. They are not particulars that the defendant published the matters complained of with express malice. Conduct subsequent to publication might be relied upon to give rise to an inference that the matter complained of was published with malice but that is not the way the proposed claim is formulated.
In so far as the proposed amendments to the statement of claim refer to the particulars set out in the proposed amended reply they depend upon leave being granted to amend the reply and for the reasons stated I decline to give that leave.
For the reasons stated I refuse leave to amend the statement of claim in the form proposed. I will give leave to the plaintiff, if he wishes to do so, to plead in support of his claim for aggravated damages that the defendant alleged that the imputations were true and then did not press those allegations when to its knowledge the allegations were unsustainable.

Discovery

An order for further discovery of documents will only be made if the court has reasonable grounds for being certain that there are other relevant documents which ought to have been discovered: Youlden Enterprises Pty Ltd v Health Solutions (WA) Pty Ltd [2005] WASC 60 [3].
The plaintiff seeks further discovery of four categories of documents. The first category is originals or copies of all notes, memoranda, letters, emails and other documents to or from Mr Voelte, Mr Santostefano and Ms Hackett relating to, or concerning, these proceedings but excluding any parts of such documents the dominant purpose of which is to obtain or give legal advice. The defendant has given discovery of all documents which are or have been in its possession, custody or power relating to any matter in question in these proceedings. The plaintiff has not demonstrated that the defendant has in its possession, custody or power any of the documents described in category 1 that it has not already given discovery of. Counsel for the plaintiff submits that there are reasons for grounds to believe that these documents or class of documents are in the possession, custody or power of the defendant. Counsel for the plaintiff relies upon a letter dated 15 January 2010 from the defendant's solicitors. The letter is not an admission that the defendant has in its possession, custody or power documents within category 1 that have not been discovered by the defendant.
The second and third categories are the originals or copies of any minutes of any meetings of the directors of the defendant from 1 October 2006 to date in relation to the claim made by the plaintiff against the defendant and in relation to these proceedings and any documents tabled or referred to at those meetings. The plaintiff has not demonstrated that the defendant is in possession of any such documents that are relevant to any matter in issue in the proceedings and which have not been discovered by the defendant.
The fourth category of documents are the originals or copies of all notes, memoranda, letters, emails and other documents between the defendant, or any of its servants or agents and Majdael Toumi (otherwise known as Majda El Touimi) or recording or referring to any conversations with her in relation to or concerning her giving evidence in these proceedings or the possibility thereof or recording or referring to any evidence proposed to be given by her in the proceedings. Those documents are not relevant on the pleadings as they presently stand. However, if and when the plaintiff amends his pleadings to add as a particular in support of his claim for aggravated damages that the defendant alleged that the defamatory imputations were true and then did not press those allegations when, to its knowledge, the allegations were unsustainable then the category 4 documents will be relevant and discoverable. It would then be part of the defendant's continuing obligation of discovery to give discovery of the category 4 documents. It is premature to make any order at this time.
For those reasons, the plaintiff's application for further discovery will be dismissed.