McBurney v Variety WA Incorporated - [2018] WASC 57

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: McBURNEY -v- VARIETY WA INCORPORATED [2018] WASC 57

CORAM: KENNETH MARTIN J

HEARD: ON THE PAPERS

DELIVERED : 19 FEBRUARY 2018

FILE NO/S: CIV 2194 of 2017

BETWEEN: PHILIP McBURNEY
Plaintiff
AND
VARIETY WA INCORPORATED
First Defendant
JAMES KOMNINOS
Second Defendant
RODNEY O'DEA
Third Defendant
ANTHONY BEGLEY
Fourth Defendant
JAY WALTER
Fifth Defendant
JOHN HANLON
Sixth Defendant
CRAIG HOLLINS
Seventh Defendant
CHERYL LOCKWOOD
Eighth Defendant
MICHELLE D'ALMEIDA
Ninth Defendant
JUSTINE CAMPBELL
Tenth Defendant
HAYLEY HINCHLIFFE
Eleventh Defendant
JO HUNTER
Twelfth Defendant
DENISE CHEIR
Thirteenth Defendant

Catchwords:

Defamation action - Practice and procedure - Mediation - Representation at mediation - Natural person defendants - Objection to non-attendance of all natural persons - Two representatives of natural persons permitted - Orders accordingly

Legislation:

Associations Incorporation Act 2015 (WA)
Supreme Court Act 1935 (WA)

Result:

Orders made

Category: B

Representation:

Counsel:

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
Eighth Defendant           :     No appearance
Ninth Defendant             :     No appearance
Tenth Defendant            :     No appearance
Eleventh Defendant        :     No appearance
Twelfth Defendant         :     No appearance
Thirteenth Defendant      :     No appearance

Solicitors:

Plaintiff:     Richard Rowick Barrister and Solicitor
First Defendant              :     Douglas Cheveralls Lawyers
Second Defendant         :     Douglas Cheveralls Lawyers
Third Defendant            :     Douglas Cheveralls Lawyers
Fourth Defendant           :     Douglas Cheveralls Lawyers
Fifth Defendant              :     Douglas Cheveralls Lawyers
Sixth Defendant             :     Douglas Cheveralls Lawyers
Seventh Defendant         :     Douglas Cheveralls Lawyers
Eighth Defendant           :     Douglas Cheveralls Lawyers
Ninth Defendant             :     Douglas Cheveralls Lawyers
Tenth Defendant            :     Douglas Cheveralls Lawyers
Eleventh Defendant        :     Douglas Cheveralls Lawyers
Twelfth Defendant         :     Douglas Cheveralls Lawyers
Thirteenth Defendant      :     Douglas Cheveralls Lawyers

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

Nil

KENNETH MARTIN J: By his writ of summons of 18 July 2017 the plaintiff brings defamation proceedings against 13 defendants. The first of the defendants is Variety WA (Inc), which is an incorporated association pursuant to the Associations Incorporation Act 2015 (WA).
As an incorporated association the first defendant is a distinct legal entity. The effect of its incorporation is stated in s 13 of the Act in the following terms:
13.Effective incorporation
(1)Upon incorporation of an association under this Act -
(a)the association becomes a body corporate with perpetual succession and may have a common seal; and
(b)the corporate name of the association is the name of the association as stated in the certificate of incorporation concluding with the word 'Incorporated' or the abbreviation 'Inc'; and
(c)except as provided in subsection (2), all rights and liabilities exercisable against members or members of the management committee of the association in their capacity as such immediately before the incorporation of the association become rights and liabilities of and exercisable against the incorporated association; and
(d)the association may sue or be sued in its corporate name.
(2)Subsection (1)(c) is not to be construed so as to relieve or release any person in respect of liabilities incurred by or on behalf of the association prior to incorporation.
See also s 17 of the Act.
The indorsement of claim to the plaintiff's writ indicates that his defamation action is based upon the alleged publication of defamatory matter contained in a letter addressed to members of the first defendant with that letter's enclosed attachments and/or annexures constituting a package of materials said to have been sent out (presumably to the first defendant's members) on or about early October 2016.
The action is the subject of case management in my CMC list. To date the parties have pleaded out their respective cases under:
(a)the plaintiff's statement of claim filed 26 October 2017;
(b)the defendants' defences filed 15 November 2017; and
(c)the plaintiff's reply filed 22 December 2017.
Somewhat unusually, the plaintiff's statement of claim photocopies and incorporates in full at par 4 the full text of the letter to the first defendant's members under the letterhead of the first defendant and which is pleaded to have been published by the defendants on 10 October 2016.
The above letter in question advises members of a special general meeting of the first defendant to consider an agenda for a meeting comprising only one item - namely, the decision by the board of the first defendant not to accept the applications of three persons (including the plaintiff) to participate in '2016 Bash'.
The letter to members notes that a package of materials included:
•Notice of Meeting
•Information as provided by the Board of Variety (clause 22 of the Constitution permits proxies);
•Information as provided by (the three persons the subject of the special general meeting's agenda);
•Proxy Form - for those unable to attend the meeting, but still wishing to vote.
The letter to members then proceeds to articulate under some 17 following paragraphs the 'Position of the Board'. It concludes as signed by James Komninos (who is described as 'Chief Barker ("Chairman")'. I pause to observe that Mr Komninos is named as the second defendant to the plaintiff's writ. I further observe that although the plaintiff's writ does not carry any such designations, that references to the second through 13th defendants as seen on the plaintiff's following statement of claim are all expressed (with one exception) to be on a basis of twelve natural person defendants being sued 'in his/her capacity as past and present Board Member'. The exception is the seventh defendant, Mr Craig Hollins. In respect of Mr Hollins, a following designation after his name as seventh defendant is 'in his capacity as a past board member'.
As indicated, the plaintiff's statement of claim at par 4 pleads that the defendants published or were participants in, or were otherwise liable for, the publication of the alleged defamatory matter of and concerning the plaintiff (being the Matter as defined in par 4).
Paragraph 5 of the statement of claim then proceeds to plead in the following terms, under a heading Particulars of Publication:
5.The Defendants and each of them published, were participants in the publication of, caused the publication, or are otherwise liable for the publication of the Matter as:
5.1In respect of the First Defendant, it is the stated publisher of the Matter and in any event:
(a)participated in the creation of, or approved of, or authorised the publication;
(b)…
5.2In respect to the Second Defendant, he is the Chairman of the Board, a member of the Board and the Matter was signed by him or on his behalf as the Chairman of the Board and, further or in the alternative;
(a)he participated in the creation of, or approved of, or authorised the publication; and/or
(b)as a member of the Board is vicariously liable for the publication of the Matter; and
(c)…
5.3In respect to the other Defendants (other than the First and Second Defendants) they, as members of the Board at the material time:
(a)participated in the creation of, or approved of, or authorised the publication; and/or
(b)as members of the Board, are vicariously liable for the publication of the Matter; and
(c)…
The statement of claim next proceeds to identify certain alleged defamatory imputations concerning the plaintiff within the Matter.
Paragraph 6 then pleads a republication of the Matter and par 7 contends for an alleged aggravation of the plaintiff's damages in certain respects.
Relevantly as to publication, the defence of all defendants filed on 15 November 2017 admits the allegations in par 4 of the statement of claim and under par 5 pleads in the following terms:
The defendants admit that each of them published, were participants in the publication of, and caused the publication of the Matter (as that term is defined in paragraph 4 of the SOC), but otherwise deny the allegations in paragraph 5 (first appearing) of the SOC.
By his reply of 21 December 2017, the plaintiff joins issue against the plea of common law qualified privilege as raised under par 9 of the defence. He further contends alleged malice in the publication of the Matter by par 4 of the reply. Particulars of malice direct attention to various matters, including to the position of the board and to the actions of the CEO of the plaintiff (Chief Executive Officer).
On 22 November 2017, I issued consent orders at the behest of the parties. Order 2 referred the matter to mediation pursuant to pt VI of the Supreme Court Act 1935 (WA). I also issued certain consequential directions associated with that order.
One of the directions issued was in the following terms:
4.The following people must attend the mediation conference in person:
(a)each party who is a natural person;
(b)if a party is not a natural person, a representative of that party familiar with the substance of the litigation and with authority to compromise it;
(c)where the settlement negotiations are to be conducted on behalf of a party by its insurer, a representative of the insurer with authority to conduct settlement negotiations and to settle the case; and
(d)the solicitor or counsel, if any, representing each party.
By its terms, direction 4, unless varied, would require all the natural person defendants, namely, the second through 13th defendants, to attend at the convened mediation in person.
With a view to clarifying who must attend at the mediation, that would appear to have been convened to be heard before a registrar of this court on Wednesday, 21 February 2018, the defendants have requested that I order that only the second defendant, Mr Komninos, and a former treasurer of the first defendant (who is also the named third defendant, Mr O'Dea) attend at the mediation.
In effect, the solicitors for all the defendants contend that the other natural person defendants are either employed or have commitments and that they have as members of the first defendant's board (or otherwise in the case of Mr Hollins) expressly reposed their full authority in the chairman, Mr Komninos, and in the former treasurer, Mr O'Dea to attend and to represent them at the forthcoming mediation.
A dispute has arisen, however, because the plaintiff actively opposes that representation course for the defendants and seeks that all natural persons who he has sued as defendants to his action be required to attend at the mediation in person.
Given the dispute, the parties have exchanged written submissions and against that the matter is to be dealt with on the papers by me. Essentially, the defendants' position is as set out in its communication to my associate under a communication of 22 December 2017. By that communication, the defendants' solicitors advised:
Our clients comprise 12 current and past members of the Board of a Charity, each of whom are volunteers in that role, together with the charity itself. Ten of the 12 natural persons have expressed the desire to delegate the task of attending the mediation to the Chairman of the Board and the immediate past Treasurer, both of whom are defendants in their own right. They have done this in writing, in the knowledge that in doing so they must grant full authority and discretion to settle the matter to those delegates.
Reference is also made by the defendants' lawyers to the desirability of avoiding a need for the 10 other natural person defendants to take time off work to attend ‑ under the limited representation proposal as is made by the defendants.
By the plaintiff's written submissions of 12 January 2018 (signed by counsel) the plaintiff contends that a defamation action is by its nature a personal matter and that the plaintiff seeks an opportunity to explain to all defendants why his action has been brought. It is said further by the plaintiff:
5.To only have a few defendants at a mediation representing the others means that options such as settling against some defendants but not others, or suggesting different terms against certain defendants, can't properly be explored.
The plaintiff's submissions also say that 'existing animosity' as between himself and the proposed delegates attending the mediation on behalf of the defendants would hamper the prospects of settlement. He also expresses a concern that inaccurate information has been circulated by the two proposed delegates with the consequence that, as it is put:
few defendants properly understand the plaintiff's position or have been informed of the full details of this action.
It is also contended in his submissions by the plaintiff that it is unclear to what extent the other defendants when apparently giving their authority and approval to be represented at the mediation were informed about various matters which the plaintiff submits are relevant, including a proposed foreshadowed amendment to his statement of claim to add another basis for an alleged claim of aggravated damages.
I would observe as to the above two contentions by the plaintiff that no basis other than his bare assertion is provided for those pejorative contentions concerning the defendants and, indeed, the defendants' solicitors.
By reply submissions of 22 January 2018, the solicitors for all defendants contend that all suggestions that the defendants have not been kept properly appraised of the details of the action is a serious and groundless contention and, further, say that each of the natural person defendants has advised that, whilst not wishing to attend the mediation in person, they nominate either the chairman, Mr Komninos, or the immediate past treasurer, Mr O'Dea (the third defendant) to attend 'on their behalf and with full authority to act on their behalf'. The position of the seventh defendant, Mr Hollins, is also the subject of express instructions to the defendants' solicitors concerning his desired nonattendance.
In all the circumstances, I am of the view that the natural person defendants, other than the second and third defendants, should be excused from attending at the mediation. Board members of a charity should not be unnecessarily burdened, if that is sensibly avoidable. That is the position here.
I have not overlooked the fact that one of the proposals canvassed in the plaintiff's submissions is that the other defendants might participate by telephone. Nevertheless, in the overall scheme, where the essential matter complained of is a publication issued under the letterhead of the incorporated first defendant for the convening of a general meeting of the first defendant, there is every reason why sensible and orderly decision making on behalf of a charitable incorporation is to be encouraged. I see no sensible reason, in the circumstances, why the defendants' solicitors and the two authorised representatives of the defendants concerned cannot meaningfully participate and represent the interests of all defendants.
Notwithstanding an admission seen in the defendants' pleadings as to publication by all defendants, it seems to me that the basis of asserted liability and defamation liability against the natural person defendants for the matter complained of is very much at the margins at best. In the particular circumstances, it is essentially a publication by the incorporated first defendant which is the relevant publication of significance. In those circumstances, two authorised representatives for the first defendant and the other defendants look to me to be more than sufficient for the defendants to meaningfully participate in this mediation. I will issue orders accordingly varying the previous directions in order to enable that limited attendance participation on the part of the defendants as is requested.